[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 1997 Edition]
[From the U.S. Government Publishing Office]


          26



          Internal Revenue



[[Page i]]

          PART 1 (Secs. 1.401 TO 1.440)

          Revised as of April 1, 1997
          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF APRIL 1, 1997
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 26:
    Chapter I--Internal Revenue Service, Department of the 
        Treasury (Continued)..................................       3
  Finding Aids:
    Table of CFR Titles and Chapters..........................     809
    Alphabetical List of Agencies Appearing in the CFR........     825
    Table of OMB Control Numbers..............................     835
    List of CFR Sections Affected.............................     851

[[Page iv]]



      



                                                                                                                
                                  ----------------------------------------------------------                    

  Cite this Code:  CFR                                                         
                                                                                                                
  To cite the regulations in this volume use title, part                       
  and section number. Thus, 26 CFR 1.401-0 refers to                          
  title 26, part 1, section 401-0.                                            
                                  ----------------------------------------------------------                    
                                                                                                                


[[Page v]]

                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.
SALES

    The Government Printing Office (GPO) processes all sales and 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 1997.



[[Page vii]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of nineteen volumes. The 
contents of these volumes represent all current regulations issued by 
the Internal Revenue Service, Department of the Treasury, as of April 1, 
1997. The first twelve volumes comprise part 1 (Subchapter A--Income 
Tax) and are arranged by sections as follows: Secs. 1.0-1-1.60; 
Secs. 1.61-1.169; Secs. 1.170-1.300; Secs. 1.301-1.400; Secs. 1.401-
1.440; Secs. 1.441-1.500; Secs. 1.501-1.640; Secs. 1.641-1.850; 
Secs. 1.851-1.907; Secs. 1.908-1.1000; Secs. 1.1001-1.1400 and 
Sec. 1.1401 to end. The thirteenth volume containing parts 2-29, 
includes the remainder of subchapter A and all of Subchapter B--Estate 
and Gift Taxes. The last six volumes contain parts 30-39 (Subchapter C--
Employment Taxes and Collection of Income Tax at Source); parts 40-49; 
parts 50-299 (Subchapter D--Miscellaneous Excise Taxes); parts 300-499 
(Subchapter F--Procedure and Administration); parts 500-599 (Subchapter 
G--Regulations under Tax Conventions); and part 600 to end (Subchapter 
H--Internal Revenue Practice).

    The OMB control numbers for Title 26 appear in Sec. 602.101 of this 
chapter. For the convenience of the user, Sec. 602.101 appears in the 
Finding Aids section of the volumes containing parts 1 to 599.

    For this volume, Gwendolyn J. Henderson was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page viii]]



 
[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




            (This book contains part 1, Secs. 1.401 to 1.440)

  --------------------------------------------------------------------
                                                                    Part
Chapter i--Internal Revenue Service, Department of the 
  Treasury (continued)......................................           1

[[Page 3]]



CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY (CONTINUED)




                     (Part 1, Secs. 1.401 to 1.440)

  --------------------------------------------------------------------

  Editorial Note: IRS published a document at 45 FR 6088, Jan. 25, 1980, 
deleting statutory sections from their regulations. In Chapter I cross 
references to the deleted material have been changed to the 
corresponding sections of the IRS Code of 1954 or to the appropriate 
regulations sections. When either such change produced a redundancy, the 
cross reference has been deleted. For further explanation, see 45 FR 
20795, Mar. 31, 1980.

                  SUBCHAPTER A--INCOME TAX (CONTINUED)
Part                                                                Page
1               Income taxes................................           4

  Supplementary Publication: Internal Revenue Service Looseleaf 
Regulations System.
  Additional supplementary publications are issued covering Alcohol and 
Tobacco Tax Regulations, and Regulations Under Tax Conventions.

[[Page 4]]

                  SUBCHAPTER A--INCOME TAX (CONTINUED)

  PART 1--INCOME TAX; TAXABLE YEARS BEGINNING AFTER DECEMBER 31, 1953 
                               (Continued)

                  Normal Taxes and Surtaxes (Continued)

                       DEFERRED COMPENSATION, ETC.

            Pension, Profit-Sharing, Stock Bonus Plans, etc.

Sec.

                              1.401-0  Scope and definitions.
                              1.401-1  Qualified pension, profit-
                              sharing, and stock bonus plans.
                              1.401-2  Impossibility of diversion under 
                              the trust instrument.
                              1.401-3  Requirements as to coverage.
                              1.401-4  Discrimination as to 
                              contributions or benefits (before 1994).
                              1.401-5  Period for which requirements of 
                              section 401(a) (3), (4), (5), and (6) are 
                              applicable with respect to plans put into 
                              effect before September 2, 1974.
                              1.401-6  Termination of a qualified plan.
                              1.401-7  Forfeitures under a qualified 
                              pension plan.
                              1.401-8  Custodial accounts prior to 
                              January 1, 1974.
                              1.401-9  Face-amount certificates--
                              nontransferable annuity contracts.
                              1.401-10  Definitions relating to plans 
                              covering self-employed individuals.
                              1.401-11  General rules relating to plans 
                              covering self-employed individuals.
                              1.401-12  Requirements for qualification 
                              of trusts and plans benefiting owner-
                              employees.
                              1.401-13  Excess contributions on behalf 
                              of owner-employees.
                              1.401-14  Inclusion of medical benefits 
                              for retired employees in qualified pension 
                              or annuity plans.
                              1.401(a)-1  Post-ERISA qualified plans and 
                              qualified trusts; in general.
                              1.401(a)-2  Impossibility of diversion 
                              under qualified plan or trust.
                              1.401(a)-4  Optional forms of benefit 
                              (before 1994).
                              1.401(a)-11  Qualified joint and survivor 
                              annuities.
                              1.401(a)-12  Mergers and consolidations of 
                              plans and transfers of plan assets.
                              1.401(a)-13  Assignment or alienation of 
                              benefits.
                              1.401(a)-14  Commencement of benefits 
                              under qualified trusts.
                              1.401(a)-15  Requirement that plan 
                              benefits are not decreased on account of 
                              certain Social Security increases.
                              1.401(a)-16  Limitations on benefits and 
                              contributions under qualified plans.
                              1.401(a)-19  Nonforfeitability in case of 
                              certain withdrawals.
                              1.401(a)-20  Requirements of qualified 
                              joint and survivor annuity and qualified 
                              preretirement survivor annuity.
                              1.401(a)-30  Limit on elective deferrals.
                              1.401(a)-50  Puerto Rican trusts; election 
                              to be treated as a domestic trust.
                              1.401(a)(4)-0  Table of contents.
                              1.401(a)(4)-1  Nondiscrimination 
                              requirements of section 401(a)(4).
                              1.401(a)(4)-2  Nondiscrimination in amount 
                              of employer contributions under a defined 
                              contribution plan.
                              1.401(a)(4)-3  Nondiscrimination in amount 
                              of employer-provided benefits under a 
                              defined benefit plan.
                              1.401(a)(4)-4  Nondiscriminatory 
                              availability of benefits, rights, and 
                              features.
                              1.401(a)(4)-5  Plan amendments and plan 
                              terminations.
                              1.401(a)(4)-6  Contributory defined 
                              benefit plans.
                              1.401(a)(4)-7  Imputation of permitted 
                              disparity.
                              1.401(a)(4)-8  Cross-testing.
                              1.401(a)(4)-9  Plan aggregation and 
                              restructuring.
                              1.401(a)(4)-10  Testing of former 
                              employees.
                              1.401(a)(4)-11  Additional rules.

[[Page 5]]

                              1.401(a)(4)-12  Definitions.
                              1.401(a)(4)-13  Effective dates and fresh-
                              start rules.
                              1.401(a)(5)-1  Special rules relating to 
                              nondiscrimination requirements.
                              1.401(a)(17)-1  Limitation on annual 
                              compensation.
                              1.401(a)(26)-0  Table of contents.
                              1.401(a)(26)-1  Minimum participation 
                              requirements.
                              1.401(a)(26)-2  Minimum participation 
                              rule.
                              1.401(a)(26)-3  Rules applicable to a 
                              defined benefit plan's prior benefit 
                              structure.
                              1.401(a)(26)-4  Testing former employees.
                              1.401(a)(26)-5  Employees who benefit 
                              under a plan.
                              1.401(a)(26)-6  Excludable employees.
                              1.401(a)(26)-7  Testing methods.
                              1.401(a)(26)-8  Definitions.
                              1.401(a)(26)-9  Effective dates and 
                              transition rules.
                              1.401(a)(31)-1  Requirement to offer 
                              direct rollover of eligible rollover 
                              distributions; questions and answers.
                              1.401(b)-1  Certain retroactive changes in 
                              plan.
                              1.401(e)-1  Definitions relating to plans 
                              covering self-employed individuals.
                              1.401(e)-2  General rules relating to 
                              plans covering self-employed individuals.
                              1.401(e)-3  Requirements for qualification 
                              of trusts and plans benefiting owner-
                              employees.
                              1.401(e)-4  Contributions for premiums on 
                              annuity, etc., contracts and transitional 
                              rule for certain excess contributions.
                              1.401(e)-5  Limitation of contribution and 
                              benefit bases to first $100,000 of annual 
                              compensation in case of plans covering 
                              self-employed individuals.
                              1.401(e)-6  Special rules for shareholder-
                              employers.
                              1.401(f)-1  Certain custodial accounts and 
                              annuity contracts.
                              1.401(k)-0  Certain cash or deferred 
                              arrangements, table of contents.
                              1.401(k)-1  Certain cash or deferred 
                              arrangements.
                              1.401(l)-0  Table of contents.
                              1.401(l)-1  Permitted disparity in 
                              employer-provided contributions or 
                              benefits.
                              1.401(l)-2  Permitted disparity for 
                              defined contribution plans.
                              1.401(l)-3  Permitted disparity for 
                              defined benefit plans.
                              1.401(l)-4  Special rules for railroad 
                              plans.
                              1.401(l)-5  Overall permitted disparity 
                              limits.
                              1.401(l)-6  Effective dates and transition 
                              rules.
                              1.401(m)-0  Employee and matching 
                              contributions, table of contents.
                              1.401(m)-1  Employee and matching 
                              contributions.
                              1.401(m)-2  Multiple use of alternative 
                              limitation.
                              1.402(a)-1  Taxability of beneficiary 
                              under a trust which meets the requirements 
                              of section 401(a).
                              1.402(a)(5)-1T  Rollovers of partial 
                              distributions from qualified trusts and 
                              annuities. (Temporary)
                              1.402(b)-1  Treatment of beneficiary of a 
                              trust not exempt under section 501(a).
                              1.402(c)-1  Taxability of beneficiary of 
                              certain situs trusts.
                              1.402(c)-2  Eligible rollover 
                              distributions; questions and answers.
                              1.402(d)-1  Effect of section 402(d).
                              1.402(e)-1  Certain plan terminations.
                              1.402(f)-1  Required explanation of 
                              eligible rollover distributions; questions 
                              and answers.
                              1.402(g)-0  Limitation on exclusion for 
                              elective deferrals, table of contents.
                              1.402(g)-1  Limitation on exclusion for 
                              elective deferrals.
                              1.403(a)-1  Taxability of beneficiary 
                              under a qualified annuity plan.
                              1.403(a)-2  Capital gains treatment for 
                              certain distributions.
                              1.403(b)-1  Taxability of beneficiary 
                              under annuity purchased by a section 
                              501(c)(3) organization or public school.
                              1.403(b)-2  Eligible rollover 
                              distributions; questions and answers.
                              1.403(c)-1  Taxability of beneficiary 
                              under a nonqualified annuity.
                              1.403(d)-1  Taxability of employee when 
                              rights under contracts purchased by exempt 
                              organizations change from forfeitable to 
                              nonforfeitable.

[[Page 6]]

                              1.404(a)-1  Contributions of an employer 
                              to an employees' trust or annuity plan and 
                              compensation under a deferred payment 
                              plan; general rule.
                              1.404(a)-1T  Questions and answers 
                              relating to deductibility of deferred 
                              compensation and deferred benefits for 
                              employees. (Temporary)
                              1.404(a)-2  Information to be furnished by 
                              employer claiming deductions; taxable 
                              years ending before December 31, 1971.
                              1.404(a)-2A  Information to be furnished 
                              by an employer; taxable years ending on or 
                              after December 31, 1971, and before 
                              December 31, 1975.
                              1.404(a)-3  Contributions of an employer 
                              to or under an employees' pension trust or 
                              annuity plan that meets the requirements 
                              of section 401(a); application of section 
                              404(a)(1).
                              1.404(a)-4  Pension and annuity plans; 
                              limitations under section 404(a)(1)(A).
                              1.404(a)-5  Pension and annuity plans; 
                              limitations under section 404(a)(1)(B).
                              1.404(a)-6  Pension and annuity plans; 
                              limitations under section 404(a)(1)(C).
                              1.404(a)-7  Pension and annuity plans; 
                              contributions in excess of limitations 
                              under section 404(a)(1); application of 
                              section 404(a)(1)(D).
                              1.404(a)-8  Contributions of an employer 
                              under an employees' annuity plan which 
                              meets the requirements of section 401(a); 
                              application of section 404(a)(2).
                              1.404(a)(8)-1T  Deductions for plan 
                              contributions on behalf of self-employed 
                              individuals. (Temporary)
                              1.404(a)-9  Contributions of an employer 
                              to an employees' profit-sharing or stock 
                              bonus trust that meets the requirements of 
                              section 401(a); application of section 
                              404(a)(3)(A).
                              1.404(a)-10  Profit-sharing plan of an 
                              affiliated group; application of section 
                              404(a)(3)(B).
                              1.404(a)-11  Trusts created or organized 
                              outside the United States; application of 
                              section 404(a)(4).
                              1.404(a)-12  Contributions of an employer 
                              under a plan that does not meet the 
                              requirements of section 401(a); 
                              application of section 404(a)(5).
                              1.404(a)-13  Contributions of an employer 
                              where deductions are allowable under 
                              section 404(a) (1) or (2) and also under 
                              section 404(a)(3); application of section 
                              404(a)(7).
                              1.404(a)-14  Special rules in connection 
                              with the Employee Retirement Income 
                              Security Act of 1974.
                              1.404(b)-1  Method of contribution, etc., 
                              having the effect of a plan; effect of 
                              section 404(b).
                              1.404(b)-1T  Method or arrangement of 
                              contributions, etc., deferring the receipt 
                              of compensation or providing for deferred 
                              benefits. (Temporary)
                              1.404(c)-1  Certain negotiated plans; 
                              effect of section 404(c).
                              1.404(d)-1T  Questions and answers 
                              relating to deductibility of deferred 
                              compensation and deferred benefits for 
                              independent contractors. (Temporary)
                              1.404(e)-1  Contributions on behalf of a 
                              self-employed individual to or under a 
                              pension, annuity, or profit-sharing plan 
                              meeting the requirements of section 401; 
                              application of section 404(a) (8), (9), 
                              and (10) and section 404 (e) and (f).
                              1.404(e)-1A  Contributions on behalf of a 
                              self-employed individual to or under a 
                              qualified pension, annuity, or profit-
                              sharing plan.
                              1.404(g)-1  Deduction of employer 
                              liability payments.
                              1.404(k)-1T  Questions and answers 
                              relating to the deductibility of certain 
                              dividend distributions. (Temporary)
                              1.405-1  Qualified bond purchase plans.
                              1.405-2  Deduction of contributions to 
                              qualified bond purchase plans.
                              1.405-3  Taxation of retirement bonds.
                              1.406-1  Treatment of certain employees of 
                              foreign subsidiaries as employees of the 
                              domestic corporation.
                              1.407-1  Treatment of certain employees of 
                              domestic subsidiaries engaged in business 
                              outside the United States as employees of 
                              the domestic parent corporation.
                              1.408-1  General rules.
                              1.408-2  Individual retirement accounts.

[[Page 7]]

                              1.408-3  Individual retirement annuities.
                              1.408-4  Treatment of distributions from 
                              individual retirement arrangements.
                              1.408-5  Annual reports by trustees or 
                              issuers.
                              1.408-6  Disclosure statements for 
                              individual retirement arrangements.
                              1.408-7  Reports on distributions from 
                              individual retirement plans.
                              1.409-1  Retirement bonds.
                              1.410(a)-1  Minimum participation 
                              standards; general rules.
                              1.410(a)-2  Effective dates.
                              1.410(a)-3  Minimum age and service 
                              conditions.
                              1.410(a)-3T  Minimum age and service 
                              conditions (temporary).
                              1.410(a)-4  Maximum age conditions and 
                              time of participation.
                              1.410(a)-5  Year of service; break in 
                              service.
                              1.410(a)-6  Amendment of break in service 
                              rules; Transition period.
                              1.410(a)-7  Elapsed time.
                              1.410(a)-8  Five consecutive 1-year breaks 
                              in service, transitional rules under the 
                              Retirement Equity Act of 1984.
                              1.410(a)-8T  Year of service; break in 
                              service (temporary).
                              1.410(a)-9  Maternity and paternity 
                              absence.
                              1.410(a)-9T  Elapsed time (temporary).
                              1.410(b)-0  Table of contents.
                              1.410(b)-1  Minimum coverage requirements 
                              (before 1994).
                              1.410(b)-2  Minimum coverage requirements 
                              (after 1993).
                              1.410(b)-3  Employees and former employees 
                              who benefit under a plan.
                              1.410(b)-4  Nondiscriminatory 
                              classification test.
                              1.410(b)-5  Average benefit percentage 
                              test.
                              1.410(b)-6  Excludable employees.
                              1.410(b)-7  Definition of plan and rules 
                              governing plan disaggregation and 
                              aggregation.
                              1.410(b)-8  Additional rules.
                              1.410(b)-9  Definitions.
                              1.410(b)-10  Effective dates and 
                              transition rules.
                              1.410(d)-1  Election by church to have 
                              participation, vesting, funding, etc. 
                              provisions apply.
                              1.411(a)-1  Minimum vesting standards; 
                              general rules.
                              1.411(a)-2  Effective dates.
                              1.411(a)-3  Vesting in employer-derived 
                              benefits.
                              1.411(a)-3T  Vesting in employer-derived 
                              benefits (temporary).
                              1.411(a)-4  Forfeitures, suspensions, etc.
                              1.411(a)-4T  Forfeitures, suspensions, 
                              etc. (temporary).
                              1.411(a)-5  Service included in 
                              determination of nonforfeitable 
                              percentage.
                              1.411(a)-6  Year of service; hours of 
                              service; breaks in service.
                              1.411(a)-7  Definitions and special rules.
                              1.411(a)-8  Changes in vesting schedule.
                              1.411(a)-8T  Changes in vesting schedule 
                              (temporary).
                              1.411(a)-9  Amendment of break in service 
                              rules; transitional period.
                              1.411(a)-11  Restriction and valuation of 
                              distributions.
                              1.411(a)-11T  Restriction and valuation of 
                              distributions (temporary).
                              1.411(b)-1  Accrued benefit requirements.
                              1.411(c)-1  Allocation of accrued benefits 
                              between employer and employee 
                              contributions.
                              1.411(d)-1  Coordination of vesting and 
                              discrimination requirements. [Reserved]
                              1.411(d)-2  Termination or partial 
                              termination; discontinuance of 
                              contributions.
                              1.411(d)-3  Other special rules.
                              1.411(d)-4  Section 411(d)(6) protected 
                              benefits.
                              1.411(d)-5  Class year plans; plan years 
                              beginning after October 22, 1986.
                              1.411(d)-6T  Section 204(h) notice.
                              1.412(b)-2  Amortization of experience 
                              gains in connection with certain group 
                              deferred annuity contracts.
                              1.412(b)-5  Election of the alternative 
                              amortization method of funding.

[[Page 8]]

                              1.412(c)(1)-1  Determinations to be made 
                              under funding method--terms defined.
                              1.412(c)(1)-2  Shortfall method.
                              1.412(c)(1)-3  Applying the minimum 
                              funding requirements to restored plans.
                              1.412(c)(1)-3T  Applying the minimum 
                              funding requirements to restored plans 
                              (Temporary).
                              1.412(c)(2)-1  Valuation of plan assets; 
                              reasonable actuarial valuation methods.
                              1.412(c)(3)-1  Reasonable funding methods.
                              1.412(c)(3)-2  Effective dates and 
                              transitional rules relating to reasonable 
                              funding methods.
                              1.412(i)-1  Certain insurance contract 
                              plans.
                              1.413-1  Special rules for collectively 
                              bargained plans.
                              1.413-2  Special rules for plans 
                              maintained by more than one employer.
                              1.414(b)-1  Controlled group of 
                              corporations.
                              1.414(c)-1  Commonly controlled trades or 
                              businesses.
                              1.414(c)-2  Two or more trades or 
                              businesses under common control.
                              1.414(c)-3  Exclusion of certain interests 
                              or stock in determining control.
                              1.414(c)-4  Rules for determining 
                              ownership.
                              1.414(c)-5  Effective date.
                              1.414(e)-1  Definition of church plan.
                              1.414(f)-1  Definition of multiemployer 
                              plan.
                              1.414(g)-1  Definition of plan 
                              administrator.
                              1.414(l)-1  Mergers and consolidations of 
                              plans or transfers of plan assets.
                              1.414(q)-1  Highly compensated employee.
                              1.414(q)-1T  Highly compensated employee 
                              (temporary).
                              1.414(r)-0  Table of contents.
                              1.414(r)-1  Requirements applicable to 
                              qualified separate lines of business.
                              1.414(r)-2  Line of business.
                              1.414(r)-3  Separate line of business.
                              1.414(r)-4  Qualified separate line of 
                              business--fifty-employee and notice 
                              requirements.
                              1.414(r)-5  Qualified separate line of 
                              business--administrative scrutiny 
                              requirement--safe harbors.
                              1.414(r)-6  Qualified separate line of 
                              business--administrative scrutiny 
                              requirement--individual determinations.
                              1.414(r)-7  Determination of the employees 
                              of an employer's qualified separate lines 
                              of business.
                              1.414(r)-8  Separate application of 
                              section 410(b).
                              1.414(r)-9  Separate application of 
                              section 401(a)(26).
                              1.414(r)-10  Separate application of 
                              section 129(d)(8). [Reserved]
                              1.414(r)-11  Definitions and special 
                              rules.
                              1.414(s)-1  Definition of compensation.
                              1.415-1  General rules with respect to 
                              limitations on benefits and contributions 
                              under qualified plans.
                              1.415-2  Definitions and special rules.
                              1.415-3  Limitations for defined benefit 
                              plans.
                              1.415-4  Transitional rule for defined 
                              benefit plans.
                              1.415-5  Cost of living adjustments for 
                              defined benefit plans.
                              1.415-6  Limitation for defined 
                              contribution plans.
                              1.415-7  Limitation in case of defined 
                              benefit and defined contribution plan for 
                              same employee.
                              1.415-8  Combining and aggregating plans.
                              1.415-9  Disqualification of plans and 
                              trusts.
                              1.415-10  Special aggregation rules.
                              1.416-1  Questions and answers on top-
                              heavy plans.
                              1.417(e)-1  Restrictions and valuations of 
                              distributions from plans subject to 
                              sections 401(a)(11) and 417.
                              1.417(e)-1T  Restrictions and valuations 
                              of distributions from plans subject to 
                              sections 401(a)(11) and 417. (Temporary)
                              1.419-1T  Treatment of welfare benefit 
                              funds. (Temporary)

[[Page 9]]

                              1.419A-1T  Qualified asset account 
                              limitation of additions to account. 
                              (Temporary)
                              1.419A-2T  Qualified asset account 
                              limitation for collectively bargained 
                              funds. (Temporary)

                          Certain Stock Options

                              1.421-1  Effective dates and meaning and 
                              use of certain terms.
                              1.421-2  Restricted stock option.
                              1.421-3  Exercise of restricted stock 
                              option.
                              1.421-4  Modification, extension, or 
                              renewal.
                              1.421-5  Operation of section 421.
                              1.421-6  Options to which section 421 does 
                              not apply.
                              1.421-7  Meaning and use of certain terms.
                              1.421-8  General rules.
                              1.422-4  Qualified stock options (prior 
                              law).
                              1.422-5  Stockholder approval of incentive 
                              stock option plans.
                              1.423-1  Applicability of section 421(a).
                              1.423-2  Employee stock purchase plan 
                              defined.
                              1.425-1  Definitions and special rules 
                              applicable to statutory options.

  Authority: 26 U.S.C. 7805.

  Sec. 1.401-12 also issued under 26 U.S.C. 401(d)(1).
  Sec. 1.401(a)(5)-1 also issued under 26 U.S.C. 401(a)(5).
  Sec. 1.401(a)(17)-1 also issued under 26 U.S.C. 401(a)(17).
  Secs. 1.401(a)(26)-1 through (a)(26)-9 also issued under 26 U.S.C. 
401(a)(26).
  Sec. 1.401(l)-0 through 1.401(l)-6 also issued under 26 U.S.C. 401(l).
  Secs. 1.410(b)-2 through 1.410(b)-10 also issued under 26 U.S.C. 
410(b)(6).
  Sec. 1.411(d)-4 also issued under 26 U.S.C. 422(d)(6).
  Sec. 1.411(d)-6T also issued under Reorganization Plan No. 4 of 1978, 
29 U.S.C. 1001 note.
  Secs. 1.414(c)-1 through 1.414(c)-5 also issued under 26 U.S.C. 
414(c).
  Sec. 1.414(q)-1T is also issued under 26 U.S.C. 414(q).
  Secs. 1.414(r)-0 through 1.414(r)-7 also issued under 26 U.S.C. 
414(r).
  Sec. 1.414(r)-8 also issued under 26 U.S.C. 410(b) and 414(r).
  Sec. 1.414(r)-9 also issued under 26 U.S.C. 401(a)(26) and 414(r).
  Sec. 1.414(r)-10 also issued under 26 U.S.C. 129 and 414(r).
  Sec. 1.414(r)-1 also issued under 26 U.S.C. 414(r).
  Sec. 1.414(s)-1 also issued under 26 U.S.C. 414(s).
  Sec. 1.417(e)-1T also issued under 26 U.S.C. 417(e)(3)(A)(ii)(II).

[[Page 11]]



DEFERRED COMPENSATION, ETC.--Table of Contents




            Pension, Profit-Sharing, Stock Bonus Plans, etc.



Sec. 1.401-0  Scope and definitions.

    (a) In general. Sections 1.401 through 1.401-14 (inclusive) reflect 
the provisions of section 401 prior to amendment by the Employee 
Retirement Income Security Act of 1974. The sections following 
Sec. 1.401-14 and preceding Sec. 1.402(a)-1 (hereafter referred to in 
this section as the ``Post-ERISA Regulations'') reflect the provisions 
of section 401 after amendment by such Act.
    (b) Definitions. For purposes of the Post-ERISA regulations--
    (1) Qualified plan. The term ``qualified plan'' means a plan which 
satisfies the requirements of section 401(a).
    (2) Qualified trust. The term ``qualified trust'' means a trust 
which satisfies the requirements of section 401(a).

(Sec. 411 Internal Revenue Code of 1954 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42320, Aug. 23, 1977]



Sec. 1.401-1   Qualified pension, profit-sharing, and stock bonus plans.

    (a) Introduction. (1) Sections 401 through 405 relate to pension, 
profit- sharing, stock bonus, and annuity plans, compensation paid under 
a deferred-payment plan, and bond purchase plans. Section 401(a) 
prescribes the requirements which must be met for qualification of a 
trust forming part of a pension, profit-sharing, or stock bonus plan.
    (2) A qualified pension, profit-sharing, or stock bonus plan is a 
definite written program and arrangement which is communicated to the 
employees and which is established and maintained by an employer--
    (i) In the case of a pension plan, to provide for the livelihood of 
the employees or their beneficiaries after the retirement of such 
employees through the payment of benefits determined without regard to 
profits (see paragraph (b)(1)(i) of this section);
    (ii) In the case of a profit-sharing plan, to enable employees or 
their beneficiaries to participate in the profits of the employer's 
trade or business, or in the profits of an affiliated employer who is 
entitled to deduct his contributions to the plan under section 
404(a)(3)(B), pursuant to a definite formula for allocating the 
contributions and for distributing the funds accumulated under the plan 
(see paragraph (b)(1)(ii) of this section); and
    (iii) In the case of a stock bonus plan, to provide employees or 
their beneficiaries benefits similar to those of profit-sharing plans, 
except that such benefits are distributable in stock of the employer, 
and that the contributions by the employer are not necessarily dependent 
upon profits. If the employer's contributions are dependent upon 
profits, the plan may enable employees or their beneficiaries to 
participate not only in the profits of the employer, but also in the 
profits of an affiliated employer who is entitled to deduct his 
contributions to the plan under section 404(a)(3)(B) (see paragraph 
(b)(1)(iii) of this section).
    (3) In order for a trust forming part of a pension, profit-sharing, 
or stock bonus plan to constitute a qualified trust under section 
401(a), the following tests must be met:
    (i) It must be created or organized in the United States, as defined 
in section 7701(a)(9), and it must be maintained at all times as a 
domestic trust in the United States;
    (ii) It must be part of a pension, profit-sharing, or stock bonus 
plan established by an employer for the exclusive benefit of his 
employees or their beneficiaries (see paragraph (b)(2) through (5) of 
this section);
    (iii) It must be formed or availed of for the purpose of 
distributing to the employees or their beneficiaries the corpus and 
income of the fund accumulated by the trust in accordance with the plan, 
and, in the case of a plan which covers (as defined in paragraph (a)(2) 
of Sec. 1.401-10) any self-employed individual, the time and method of 
such distribution must satisfy the requirements of section 401(a)(9) 
with respect to each employee covered by the plan (see paragraph (e) of 
Sec. 1.401-11);
    (iv) It must be impossible under the trust instrument at any time 
before the satisfaction of all liabilities with respect to employees and 
their beneficiaries under the trust, for any part of the corpus or 
income to be used for,

[[Page 12]]

or diverted to, purposes other than for the exclusive benefit of the 
employees or their beneficiaries (see Sec. 1.401-2);
    (v) It must be part of a plan which benefits prescribed percentages 
of the employees, or which benefits such employees as qualify under a 
classification set up by the employer and found by the Commissioner not 
to be discriminatory in favor of certain specified classes of employees 
(see Sec. 1.401-3 and, in addition, see Sec. 1.401-12 for special rules 
as to plans covering owner-employees);
    (vi) It must be part of a plan under which contributions or benefits 
do not discriminate in favor of certain specified classes of employees 
(see Sec. 1.401-4);
    (vii) It must be part of a plan which provides the nonforfeitable 
rights described in section 401(a)(7) (see Sec. 1.401-6);
    (viii) If the trust forms part of a pension plan, the plan must 
provide that forfeitures must not be applied to increase the benefits 
any employee would receive under such plan (see Sec. 1.401-7);
    (ix) It must, if the plan benefits any self-employed individual who 
is an owner-employee, satisfy the additional requirements for 
qualification contained in section 401(a)(10) and (d).
    (4) For taxable years beginning after December 31, 1962, self-
employed individuals may be included in qualified plans. See 
Secs. 1.401-10 through 1.401-13.
    (b) General rules. (1)(i) A pension plan within the meaning of 
section 401(a) is a plan established and maintained by an employer 
primarily to provide systematically for the payment of definitely 
determinable benefits to his employees over a period of years, usually 
for life, after retirement. Retirement benefits generally are measured 
by, and based on, such factors as years of service and compensation 
received by the employees. The determination of the amount of retirement 
benefits and the contributions to provide such benefits are not 
dependent upon profits. Benefits are not definitely determinable if 
funds arising from forfeitures on termination of service, or other 
reason, may be used to provide increased benefits for the remaining 
participants (see Sec. 1.401-7, relating to the treatment of forfeitures 
under a qualified pension plan). A plan designed to provide benefits for 
employees or their beneficiaries to be paid upon retirement or over a 
period of years after retirement will, for the purposes of section 
401(a), be considered a pension plan if the employer contributions under 
the plan can be determined actuarially on the basis of definitely 
determinable benefits, or, as in the case of money purchase pension 
plans, such contributions are fixed without being geared to profits. A 
pension plan may provide for the payment of a pension due to disability 
and may also provide for the payment of incidental death benefits 
through insurance or otherwise. However, a plan is not a pension plan if 
it provides for the payment of benefits not customarily included in a 
pension plan such as layoff benefits or benefits for sickness, accident, 
hospitalization, or medical expenses (except medical benefits described 
in section 401(h) as defined in paragraph (a) of Sec. 1.401-14).
    (ii) A profit-sharing plan is a plan established and maintained by 
an employer to provide for the participation in his profits by his 
employees or their beneficiaries. The plan must provide a definite 
predetermined formula for allocating the contributions made to the plan 
among the participants and for distributing the funds accumulated under 
the plan after a fixed number of years, the attainment of a stated age, 
or upon the prior occurrence of some event such as layoff, illness, 
disability, retirement, death, or severance of employment. A formula for 
allocating the contributions among the participants is definite if, for 
example, it provides for an allocation in proportion to the basic 
compensation of each participant. A plan (whether or not it contains a 
definite predetermined formula for determining the profits to be shared 
with the employees) does not qualify under section 401(a) if the 
contributions to the plan are made at such times or in such amounts that 
the plan in operation discriminates in favor of officers, shareholders, 
persons whose principal duties consist in supervising the work of other 
employees, or highly compensated employees. For the rules with respect 
to discrimination, see Secs. 1.401-3 and 1.401-4. A profit-sharing plan 
within the meaning of section 401

[[Page 13]]

is primarily a plan of deferred compensation, but the amounts allocated 
to the account of a participant may be used to provide for him or his 
family incidental life or accident or health insurance.
    (iii) A stock bonus plan is a plan established and maintained by an 
employer to provide benefits similar to those of a profit-sharing plan, 
except that the contributions by the employer are not necessarily 
dependent upon profits and the benefits are distributable in stock of 
the employer company. For the purpose of allocating and distributing the 
stock of the employer which is to be shared among his employees or their 
beneficiaries, such a plan is subject to the same requirements as a 
profit-sharing plan.
    (iv) As to inclusion of full-time life insurance salesmen within the 
class of persons considered to be employees, see section 7701(a)(20).
    (2) The term ``plan'' implies a permanent as distinguished from a 
temporary program. Thus, although the employer may reserve the right to 
change or terminate the plan, and to discontinue contributions 
thereunder, the abandonment of the plan for any reason other than 
business necessity within a few years after it has taken effect will be 
evidence that the plan from its inception was not a bona fide program 
for the exclusive benefit of employees in general. Especially will this 
be true if, for example, a pension plan is abandoned soon after pensions 
have been fully funded for persons in favor of whom discrimination is 
prohibited under section 401(a). The permanency of the plan will be 
indicated by all of the surrounding facts and circumstances, including 
the likelihood of the employer's ability to continue contributions as 
provided under the plan. In the case of a profit-sharing plan, other 
than a profit-sharing plan which covers employees and owner-employees 
(see section 401(d)(2)(B)), it is not necessary that the employer 
contribute every year or that he contribute the same amount or 
contribute in accordance with the same ratio every year. However, merely 
making a single or occasional contribution out of profits for employees 
does not establish a plan of profit-sharing. To be a profit-sharing 
plan, there must be recurring and substantial contributions out of 
profits for the employees. In the event a plan is abandoned, the 
employer should promptly notify the district director, stating the 
circumstances which led to the discontinuance of the plan.
    (3) If the plan is so designed as to amount to a subterfuge for the 
distribution of profits to shareholders, it will not qualify as a plan 
for the exclusive benefit of employees even though other employees who 
are not shareholders are also included under the plan. The plan must 
benefit the employees in general, although it need not provide benefits 
for all of the employees. Among the employees to be benefited may be 
persons who are officers and shareholders. However, a plan is not for 
the exclusive benefit of employees in general if, by any device 
whatever, it discriminates either in eligibility requirements, 
contributions, or benefits in favor of employees who are officers, 
shareholders, persons whose principal duties consist in supervising the 
work of other employees, or the highly compensated employees. See 
section 401(a) (3), (4), and (5). Similarly, a stock bonus or profit-
sharing plan is not a plan for the exclusive benefit of employees in 
general if the funds therein may be used to relieve the employer from 
contributing to a pension plan operating concurrently and covering the 
same employees. All of the surrounding and attendant circumstances and 
the details of the plan will be indicative of whether it is a bona fide 
stock bonus, pension, or profit-sharing plan for the exclusive benefit 
of employees in general. The law is concerned not only with the form of 
a plan but also with its effects in operation. For example, section 
401(a)(5) specifies certain provisions which of themselves are not 
discriminatory. However, this does not mean that a plan containing these 
provisions may not be discriminatory in actual operation.
    (4) A plan is for the exclusive benefit of employees or their 
beneficiaries even though it may cover former employees as well as 
present employees and employees who are temporarily on leave, as, for 
example, in the Armed Forces of the United States. A plan covering only 
former employees may

[[Page 14]]

qualify under section 401(a) if it complies with the provisions of 
section 401(a)(3)(B), with respect to coverage, and section 401(a)(4), 
with respect to contributions and benefits, as applied to all of the 
former employees. The term ``beneficiaries'' of an employee within the 
meaning of section 401 includes the estate of the employee, dependents 
of the employee, persons who are the natural objects of the employee's 
bounty, and any persons designated by the employee to share in the 
benefits of the plan after the death of the employee.
    (5)(i) No specific limitations are provided in section 401(a) with 
respect to investments which may be made by the trustees of a trust 
qualifying under section 401(a). Generally, the contributions may be 
used by the trustees to purchase any investments permitted by the trust 
agreement to the extent allowed by local law. However, such a trust will 
be subject to tax under section 511 with respect to any ``unrelated 
business taxable income'' (as defined in section 512) realized by it 
from its investments.
    (ii) Where the trust funds are invested in stock or securities of, 
or loaned to, the employer or other person described in section 503(b), 
full disclosure must be made of the reasons for such arrangement and the 
conditions under which such investments are made in order that a 
determination may be made whether the trust serves any purpose other 
than constituting part of a plan for the exclusive benefit of employees. 
The trustee shall report any of such investments on the return which 
under section 6033 it is required to file and shall with respect to any 
such investment furnish the information required by such return. See 
Sec. 1.6033-1.
    (c) Portions of years. A qualified status must be maintained 
throughout the entire taxable year of the trust in order for the trust 
to obtain any exemption for such year. But see section 401(a)(6) and 
Sec. 1.401-3.
    (d) Plan of several employers. A trust forming part of a plan of 
several employers for their employees will be qualified if all the 
requirements are otherwise satisfied.
    (e) Determination of exemptions and returns. (1) An employees' trust 
may request a determination letter as to its qualification under section 
401 and exemption under section 501. For the procedure for obtaining 
such a determination letter see paragraph (l) of Sec. 601.201 of this 
chapter (Statement of Procedural Rules).
    (2) A trust which qualifies under section 401(a) and which is exempt 
under section 501(a) must file a return in accordance with section 6033 
and the regulations thereunder. See Secs. 1.6033-1 and 1.6033-2(a)(3). 
In case such a trust realizes any unrelated business taxable income, as 
defined in section 512, such trust is also required to file a return 
with respect to such income. See paragraph (e) of Sec. 1.6012-2 and 
paragraph (a)(5) of Sec. 1.6012-3 for requirements with respect to such 
returns. For information required to be furnished periodically by an 
employer with respect to the qualification of a plan, see 
Secs. 1.404(a)-2, 1.404(a)-2A, and 1.6033-2(a)(2)(ii)(i).

[T.D. 6500, 25 FR 11670, Nov. 26, 1960, as amended by T.D. 6675, 28 FR 
10118, Sept. 17, 1963; T.D. 6722, 29 FR 5071, Apr. 14, 1964; T.D. 7168, 
37 FR 5024, Mar. 9, 1972; T.D. 7428, 41 FR 34619, Aug. 16, 1976]



Sec. 1.401-2   Impossibility of diversion under the trust instrument.

    (a) In general. (1) Under section 401(a)(2) a trust is not qualified 
unless under the trust instrument it is impossible (in the taxable year 
and at any time thereafter before the satisfaction of all liabilities to 
employees or their beneficiaries covered by the trust) for any part of 
the trust corpus or income to be used for, or diverted to, purposes 
other than for the exclusive benefit of such employees or their 
beneficiaries. This section does not apply to funds of the trust which 
are allocated to provide medical benefits described in section 401(h) as 
defined in paragraph (a) of Sec. 1.401-14. For the rules prohibiting 
diversion of such funds and the requirement of reversion to the employer 
after satisfaction of all liabilities under the medical benefits 
account, see paragraph (c) (4) and (5) of Sec. 1.401-14. For rules 
permitting reversion to the employer of amounts held in a section 415 
suspense acount, see Sec. 1.401(a)-2(b).

[[Page 15]]

    (2) As used in section 401(a)(2), the phrase ``if under the trust 
instrument it is impossible'' means that the trust instrument must 
definitely and affirmatively make it impossible for the nonexempt 
diversion or use to occur, whether by operation or natural termination 
of the trust, by power of revocation or amendment, by the happening of a 
contingency, by collateral arrangement, or by any other means. Although 
it is not essential that the employer relinquish all power to modify or 
terminate the rights of certain employees covered by the trust, it must 
be impossible for the trust funds to be used or diverted for purposes 
other than for the exclusive benefit of his employees or their 
beneficiaries.
    (3) As used in section 401(a)(2), the phrase ``purposes other than 
for the exclusive benefit of his employees or their beneficiaries'' 
includes all objects or aims not solely designed for the proper 
satisfaction of all liabilities to employees or their beneficiaries 
covered by the trust.
    (b) Meaning of ``liabilities''. (1) The intent and purpose in 
section 401(a)(2) of the phrase ``prior to the satisfaction of all 
liabilities with respect to employees and their beneficiaries under the 
trust'' is to permit the employer to reserve the right to recover at the 
termination of the trust, and only at such termination, any balance 
remaining in the trust which is due to erroneous actuarial computations 
during the previous life of the trust. A balance due to an ``erroneous 
actuarial computation'' is the surplus arising because actual 
requirements differ from the expected requirements even though the 
latter were based upon previous actuarial valuations of liabilities or 
determinations of costs of providing pension benefits under the plan and 
were made by a person competent to make such determinations in 
accordance with reasonable assumptions as to mortality, interest, etc., 
and correct procedures relating to the method of funding. For example, a 
trust has accumulated assets of $1,000,000 at the time of liquidation, 
determined by acceptable actuarial procedures using reasonable 
assumptions as to interest, mortality, etc., as being necessary to 
provide the benefits in accordance with the provisions of the plan. Upon 
such liquidation it is found that $950,000 will satisfy all of the 
liabilities under the plan. The surplus of $50,000 arises, therefore, 
because of the difference between the amounts actuarially determined and 
the amounts actually required to satisfy the liabilities. This $50,000, 
therefore, is the amount which may be returned to the employer as the 
result of an erroneous actuarial computation. If, however, the surplus 
of $50,000 had been accumulated as a result of a change in the benefit 
provisions or in the eligibility requirements of the plan, the $50,000 
could not revert to the employer because such surplus would not be the 
result of an erroneous actuarial computation.
    (2) The term ``liabilities'' as used in section 401(a)(2) includes 
both fixed and contingent obligations to employees. For example, if 
1,000 employees are covered by a trust forming part of a pension plan, 
300 of whom have satisfied all the requirements for a monthly pension, 
while the remaining 700 employees have not yet completed the required 
period of service, contingent obligations to such 700 employees have 
nevertheless arisen which constitute ``liabilities'' within the meaning 
of that term. It must be impossible for the employer (or other non 
employee) to recover any amounts other than such amounts as remain in 
the trust because of ``erroneous actuarial computations'' after the 
satisfaction of all fixed and contingent obligations. Furthermore, the 
trust instrument must contain a definite affirmative provision to this 
effect, irrespective of whether the obligations to employees have their 
source in the trust instrument itself, in the plan of which the trust 
forms a part, or in some collateral instrument or arrangement forming a 
part of such plan, and regardless of whether such obligations are, 
technically speaking, liabilities of the employer, of the trust, or of 
some other person forming a part of the plan or connected with it.

[T.D. 6500, 25 FR 11672, Nov. 26, 1960, as amended by T.D. 6722, 29 FR 
5072, Apr. 14, 1964; T.D. 7748, 46 FR 1695, Jan. 7, 1981]



Sec. 1.401-3   Requirements as to coverage.

    (a)(1) In order to insure that stock bonus, pension, and profit-
sharing

[[Page 16]]

plans are utilized for the welfare of employees in general, and to 
prevent the trust device from being used for the principal benefit of 
shareholders, officers, persons whose principal duties consist in 
supervising the work of other employees, or highly paid employees, or as 
a means of tax avoidance, a trust will not be qualified unless it is 
part of a plan which satisfies the coverage requirements of section 
401(a)(3). However, if the plan covers any individual who is an owner- 
employee, as defined in section 401(c)(3), the requirements of section 
401(a)(3) and this section are not applicable to such plan, but the plan 
must satisfy the requirements of section 401(d) (see Sec. 1.401-12).
    (2) The percentage requirements in section 401(a)(3)(A) refer to a 
percentage of all the active employees, including employees temporarily 
on leave, such as those in the Armed Forces of the United States, if 
such employees are eligible under the plan.
    (3) The application of section 401(a)(3)(A) may be illustrated by 
the following example:

    Example. A corporation adopts a plan at a time when it has 1,000 
employees. The plan provides that all full-time employees who have been 
employed for a period of two years and have reached the age of 30 shall 
be eligible to participate. The plan also requires participating 
employees to contribute 3 percent of their monthly pay. At the time the 
plan is made effective 100 of the 1,000 employees had not been employed 
for a period of two years. Fifty of the employees were seasonal 
employees whose customary employment did not exceed five months in any 
calendar year. Twenty-five of the employees were part-time employees 
whose customary employment did not exceed 20 hours in any one week. One 
hundred and fifty of the full-time employees who had been employed for 
two years or more had not yet reached age 30. The requirements of 
section 401(a)(3)(A) will be met if 540 employees are covered by the 
plan, as shown by the following computation:

                                                                        
(i) Total employees with respect to whom the percentage                 
 requirements are applicable (1,000 minus 175 (100 plus 50              
 plus 25) )..................................................        825
(ii) Employees not eligible to participate because of age               
 requirements................................................        150
                                                              ----------
(iii) Total employees eligible to participate................        675
(iv) Percentage of employees in item (i) eligible to                    
 participate.................................................       81+%
(v) Minimum number of participating employees to qualify the            
 plan (80 percent of 675)....................................        540
                                                                        

If only 70 percent, or 578, of the 825 employees satisfied the age and 
service requirements, then 462 (80 percent of 578) participating 
employees would satisfy the percentage requirements.

    (b) If a plan fails to qualify under the percentage requirements of 
section 401(a)(3)(A), it may still qualify under section 401(a)(3)(B) 
provided always that (as required by section 401(a) (3) and (4)) the 
plan's eligibility conditions, benefits, and contributions do not 
discriminate in favor of employees who are officers, shareholders, 
persons whose principal duties consist in supervising the work of other 
employees, or the highly compensated employees.
    (c) Since, for the purpose of section 401, a profit-sharing plan is 
a plan which provides for distributing the funds accumulated under the 
plan after a fixed number of years, the attainment of a stated age, or 
upon the prior occurrence of some event such as illness, disability, 
retirement, death, layoff, or severance of employment, employees who 
receive the amounts allocated to their accounts before the expiration of 
such a period of time or the occurrence of such a contingency shall not 
be considered covered by a profit-sharing plan in determining whether 
the plan meets the coverage requirements of section 401(a)(3) (A) and 
(B). Thus, in case a plan permits employees to receive immediately the 
amounts allocated to their accounts, or to have such amounts paid to a 
profit- sharing plan for them, the employees who receive the shares 
immediately shall not, for the purpose of section 401, be considered 
covered by a profit-sharing plan.
    (d) Section 401(a)(5) sets out certain classifications that will not 
in themselves be considered discriminatory. However, those so designated 
are not intended to be exclusive. Thus, plans may qualify under section 
401(a)(3)(B) even though coverage thereunder is limited to employees who 
have either reached a designated age or have been employed for a 
designated number of years, or who are employed in certain designated 
departments or are in other classifications, provided the effect of

[[Page 17]]

covering only such employees does not discriminate in favor of officers, 
shareholders, employees whose principal duties consist in supervising 
the work of other employees, or highly compensated employees. For 
example, if there are 1,000 employees, and the plan is written for only 
salaried employees, and consequently only 500 employees are covered, 
that fact alone will not justify the conclusion that the plan does not 
meet the coverage requirements of section 401(a)(3)(B). Conversely, if a 
contributory plan is offered to all of the employees but the 
contributions required of the employee participants are so burdensome as 
to make the plan acceptable only to the highly paid employees, the 
classification will be considered discriminatory in favor of such highly 
paid employees.
    (e)(1) Section 401(a)(5) contains a provision to the effect that a 
classification shall not be considered discriminatory within the meaning 
of section 401(a)(3)(B) merely because all employees whose entire annual 
remuneration constitutes ``wages'' under section 3121(a)(1) (for 
purposes of the Federal Insurance Contributions Act, chapter 21 of the 
Code) are excluded from the plan. A reference to section 3121(a)(1) for 
years after 1954 shall be deemed a reference to section 1426(a)(1) of 
the Internal Revenue Code of 1939 for years before 1955. This provision, 
in conjunction with section 401(a)(3)(B), is intended to permit the 
qualification of plans which supplement the old-age, survivors, and 
disability insurance benefits under the Social Security Act (42 U.S.C. 
ch. 7). Thus, a classification which excludes all employees whose entire 
remuneration constitutes ``wages'' under section 3121(a)(1), will not be 
considered discriminatory merely because of such exclusion. Similarly, a 
plan which includes all employees will not be considered discriminatory 
solely because the contributions or benefits based on that part of their 
remuneration which is excluded from wages under section 3121(a)(1) 
differ from the contributions or benefits based on that part of their 
remuneration which is not so excluded. However, in making his 
determination with respect to discrimination in classification under 
section 401(a)(3)(B), the Commissioner will consider whether the total 
benefits resulting to each employee under the plan and under the Social 
Security Act, or under the Social Security Act only, establish an 
integrated and correlated retirement system satisfying the tests of 
section 401(a). If, therefore, a classification of employees under a 
plan results in relatively or proportionately greater benefits for 
employees earning above any specified salary amount or rate than for 
those below any such salary amount or rate, it may be found to be 
discriminatory within the meaning of section 401(a)(3)(B). If, however, 
the relative or proportionate differences in benefits which result from 
such classification are approximately offset by the old-age, survivors, 
and disability insurance benefits which are provided by the Social 
Security Act and which are not attributable to employee contributions 
under the Federal Insurance Contributions Act, the plan will be 
considered to be properly integrated with the Social Security Act and 
will, therefore, not be considered discriminatory.
    (2)(i) For purposes of determining whether a plan is properly 
integrated with the Social Security Act, the amount of old-age, 
survivors, and disability insurance benefits which may be considered as 
attributable to employer contributions under the Federal Insurance 
Contributions Act is computed on the basis of the following:
    (A) The rate at which the maximum monthly old-age insurance benefit 
is provided under the Social Security Act is considered to be the 
average of (1) the rate at which the maximum benefit currently payable 
under the Act (i.e., in 1971) is provided to an employee retiring at age 
65, and (2) the rate at which the maximum benefit ultimately payable 
under the Act (i.e., in 2010) is provided to an employee retiring at age 
65. The resulting figure is 43 percent of the average monthly wage on 
which such benefit is computed.
    (B) The total old-age, survivors, and disability insurance benefits 
with respect to an employee is considered to be 162 percent of the 
employee's old-age insurance benefits. The resulting figure is 70 
percent of the average monthly wage on which it is computed.

[[Page 18]]

    (C) In view of the fact that social security benefits are funded 
through equal contributions by the employer and employee, 50 percent of 
such benefits is considered attributable to employer contributions. The 
resulting figure is 35 percent of the average monthly wage on which the 
benefit is computed.

Under these assumptions, the maximum old-age, survivors, and disability 
insurance benefits which may be attributed to employer contributions 
under the Federal Insurance Contributions Act is an amount equal to 35 
percent of the earnings on which they are computed. These computations 
take into account all amendments to the Society Security Act through the 
Social Security Amendments of 1971 (85 Stat. 6). It is recognized, 
however, that subsequent amendments to this Act may increase the 
percentages described in (A) or (B) of this subdivision (i), or both. If 
this occurs, the method used in this subparagraph for determining the 
integration formula may result in a figure under (C) of this subdivision 
(i) which is greater than 35 percent and a plan could be amended to 
adopt such greater figure in its benefit formula. In order to minimize 
future plan amendments of this nature, an employer may anticipate future 
changes in the Social Security Act by immediately utilizing such a 
higher figure, but not in excess of 37\1/2\ percent, in developing its 
benefit formula.
    (ii) Under the rules provided in this subparagraph, a classification 
of employees under a noncontributory pension or annuity plan which 
limits coverage to employees whose compensation exceeds the applicable 
integration level under the plan will not be considered discriminatory 
within the meaning of section 401(a)(3)(B), where:
    (A) The integration level applicable to an employee is his covered 
compensation, or is (1) in the case of an active employee, a stated 
dollar amount uniformly applicable to all active employees which is not 
greater than the covered compensation of any active employee, and (2) in 
the case of a retired employee an amount which is not greater than his 
covered compensation. (For rules relating to determination of an 
employee's covered compensation, see subdivision (iv) of this 
subparagraph.)
    (B) The rate at which normal annual retirement benefits are provided 
for any employee with respect to his average annual compensation in 
excess of the plan's integration level applicable to him does not exceed 
37\1/2\ percent.
    (C) Average annual compensation is defined to mean the average 
annual compensation over the highest 5 consecutive years.
    (D) There are no benefits payable in case of death before 
retirement.
    (E) The normal form of retirement benefits is a straight life 
annuity, and if there are optional forms, the benefit payments under 
each optional form are actuarially equivalent to benefit payments under 
the normal form.
    (F) In the case of any employee who reaches normal retirement age 
before completion of 15 years of service with the employer, the rate at 
which normal annual retirement benefits are provided for him with 
respect to his average annual compensation in excess of the plan's 
integration level applicable to him does not exceed 2\1/2\ percent for 
each year of service.
    (G) Normal retirement age is not lower than age 65.
    (H) Benefits payable in case of retirement or any other severance of 
employment before normal retirement age cannot exceed the actuarial 
equivalent of the maximum normal retirement benefits, which might be 
provided in accordance with (A) through (G) of this subdivision (ii), 
multiplied by a fraction, the numerator of which is the actual number of 
years of service of the employee at retirement or severance, and the 
denominator of which is the total number of years of service he would 
have had if he had remained in service until normal retirement age. A 
special disabled life mortality table shall not be used in determining 
the actuarial equivalent in the case of severance due to disability.
    (iii) (A) If a plan was properly integrated with old-age and 
survivors insurance benefits on July 5, 1968 (hereinafter referred to as 
an ``existing plan''), then, notwithstanding the fact that

[[Page 19]]

such plan does not satisfy the requirements of subdivision (ii) of this 
subparagraph, it will continue to be considered properly integrated with 
such benefits until January 1, 1972. Such plan will be considered 
properly integrated after December 31, 1971, so long as the benefits 
provided under the plan for each employee equal the sum of--
    (1) The benefits to which he would be entitled under a plan which, 
on July 5, 1968, would have been considered properly integrated with 
old-age and survivors insurance benefits, and under which benefits are 
provided at the same (or a lesser) rate with respect to the same portion 
of compensation with respect to which benefits are provided under the 
existing plan, multiplied by the percentage of his total service with 
the employer performed before a specified date not later than January 1, 
1972; and
    (2) The benefits to which he would be entitled under a plan 
satisfying the requirements of subdivision (ii) of this subparagraph, 
multiplied by the percentage of his total service with the employer 
performed on and after such specified date.
    (B) A plan which, on July 5, 1968, was properly integrated with old-
age and survivors insurance benefits will not be considered not to be 
properly integrated with such benefits thereafter merely because such 
plan provides a minimum benefit for each employee (other than an 
employee who owns, directly or indirectly, stock possessing more than 10 
percent of the total combined voting power or value of all classes of 
stock of the employer corporation) equal to the benefit to which he 
would be entitled under the plan as in effect on July 5, 1968, if he 
continued to earn annually until retirement the same amount of 
compensation as he earned in 1967.
    (C) If a plan was properly integrated with old-age and survivors 
insurance benefits on May 17, 1971, notwithstanding the fact that such 
plan does not satisfy the requirements of subdivision (ii) of this 
subparagraph, it will continue to be considered properly integrated with 
such benefits until January 1, 1972.
    (iv) For purposes of this subparagraph, an employee's covered 
compensation is the amount of compensation with respect to which old-age 
insurance benefits would be provided for him under the Social Security 
Act (as in effect at any uniformly applicable date occurring before the 
employee's separation from the service) if for each year until he 
attains age 65 his annual compensation is at least equal to the maximum 
amount of earnings subject to tax in each such year under the Federal 
Insurance Contributions Act. A plan may provide that an employee's 
covered compensation is the amount determined under the preceding 
sentence rounded to the nearest whole multiple of a stated dollar amount 
which does not exceed $600.
    (v) In the case of an integrated plan providing benefits different 
from those described in subdivision (ii) or (iii) (whichever is 
applicable) of this subparagraph, or providing benefits related to years 
of service, or providing benefits purchasable by stated employer 
contributions, or under the terms of which the employees contribute, or 
providing a combination of any of the foregoing variations, the plan 
will be considered to be properly integrated only if, as determined by 
the Commissioner, the benefits provided thereunder by employer 
contributions cannot exceed in value the benefits described in 
subdivision (ii) or (iii) (whichever is applicable) of this 
subparagraph. Similar principles will govern in determining whether a 
plan is properly integrated if participation therein is limited to 
employees earning in excess of amounts other than those specified in 
subdivision (iv) of this subparagraph, or if it bases benefits or 
contributions on compensation in excess of such amounts, or if it 
provides for an offset of benefits otherwise payable under the plan on 
account of old-age, survivors, and disability insurance benefits. 
Similar principles will govern in determining whether a profit-sharing 
or stock bonus plan is properly integrated with the Social Security Act.
    (3) A plan supplementing the Social Security Act and excluding all 
employees whose entire annual remuneration constitutes ``wages'' under 
section 3121(a)(1) will not, however, be deemed discriminatory merely 
because, for administrative convenience, it provides a

[[Page 20]]

reasonable minimum benefit not to exceed $20 a month.
    (4) Similar considerations, to the extent applicable in any case, 
will govern classifications under a plan supplementing the benefits 
provided by other Federal or State laws. See section 401(a)(5).
    (5) If a plan provides contributions or benefits for a self-employed 
individual, the rules relating to the integration of such a plan with 
the contributions or benefits under the Social Security Act are set 
forth in paragraph (c) of Sec. 1.401-11 and paragraph (h) of Sec. 1.401-
12.
    (6) This paragraph (e) does not apply to plan years beginning on or 
after January 1, 1989.
    (f) An employer may designate several trusts or a trust or trusts 
and an annuity plan or plans as constituting one plan which is intended 
to qualify under section 401(a)(3), in which case all of such trusts and 
plans taken as a whole may meet the requirements of such section. The 
fact that such combination of trusts and plans fails to qualify as one 
plan does not prevent such of the trusts and plans as qualify from 
meeting the requirements of section 401(a).
    (g) It is provided in section 401(a)(6) that a plan will satisfy the 
requirements of section 401(a)(3), if on at least one day in each 
quarter of the taxable year of the plan it satisfies such requirements. 
This makes it possible for a new plan requiring contributions from 
employees to qualify if by the end of the quarter-year in which the plan 
is adopted it secures sufficient contributing participants to meet the 
requirements of section 401(a)(3). It also affords a period of time in 
which new participants may be secured to replace former participants, so 
as to meet the requirements of either subparagraph (A) or (B) of section 
401(a)(3).

[T.D. 6500, 25 FR 11672, Nov. 26, 1960, as amended by T.D. 6675, 28 FR 
10119, Sept. 17, 1963; T.D. 6982, 33 FR 16499, Nov. 13, 1968; T.D. 7134, 
36 FR 13592, July 22, 1971; 36 FR 13990, July 29, 1971; T.D. 8359, 56 FR 
47614, Sept. 19, 1991]



Sec. 1.401-4  Discrimination as to contributions or benefits (before 1994).

    (a)(1)(i) In order to qualify under section 401(a), a trust must not 
only meet the coverage requirements of section 401(a)(3), but, as 
provided in section 401(a)(4), it must also be part of a plan under 
which there is no discrimination in contributions or benefits in favor 
of officers, shareholders, employees whose principal duties consist in 
supervising the work of other employees, or highly compensated employees 
as against other employees whether within or without the plan.
    (ii) Since, for the purpose of section 401, a profit-sharing plan is 
a plan which provides for distributing the funds accumulated under the 
plan after a fixed number of years, the attainment of a stated age, or 
upon the prior occurrence of some event such as illness, disability, 
retirement, death, layoff, or severance of employment, any amount 
allocated to an employee which is withdrawn before the expiration of 
such a period of time or the occurrence of such a contingency shall not 
be considered in determining whether the contributions under the plan 
discriminate in favor of officers, shareholders, employees whose 
principal duties consist in supervising the work of other employees, or 
highly compensated employees. Thus, in case a plan permits employees to 
receive immediately the whole or any part of the amounts allocated to 
their accounts, or to have the whole or any part of such amounts paid to 
a profit-sharing plan for them, any amounts which are received 
immediately shall not, for the purpose of section 401, be considered 
contributed to a profit-sharing plan.
    (iii) Funds in a stock bonus or profit-sharing plan arising from 
forfeitures on termination of service, or other reason, must not be 
allocated to the remaining participants in such a manner as will effect 
the prohibited discrimination. With respect to forfeitures in a pension 
plan, see Sec. 1.401-7.
    (2)(i) Section 401(a)(5) sets out certain provisions which will not 
in and of themselves be discriminatory within the meaning of section 401 
a) (3) or (4). See Sec. 1.401-3. Thus, a plan will not be considered 
discriminatory merely because the contributions or benefits bear a 
uniform relationship to total compensation or to the basic or regular

[[Page 21]]

rate of compensation, or merely because the contributions or benefits 
based on that part of the annual compensation of employees which is 
subject to the Federal Insurance Contributions Act (chapter 21 of the 
Code) differ from the contributions or benefits based on any excess of 
such annual compensation over such part. With regard to the application 
of the rules of section 401(a)(5) in the case of a plan which benefits a 
self-employed individual, see paragraph (c) of Sec. 1.401-11.
    (ii) The exceptions specified in section 401(a)(5) are not an 
exclusive enumeration, but are merely a recital of provisions frequently 
encountered which will not of themselves constitute forbidden 
discrimination in contributions or benefits.
    (iii) Variations in contributions or benefits may be provided so 
long as the plan, viewed as a whole for the benefit of employees in 
general, with all its attendant circumstances, does not discriminate in 
favor of employees within the enumerations with respect to which 
discrimination is prohibited. Thus, benefits in a stock bonus or profit-
sharing plan which vary by reason of an allocation formula which takes 
into consideration years of service, or other factors, are not 
prohibited unless they discriminate in favor of such employees.
    (b) A plan which excludes all employees whose entire remuneration 
constitutes wages under section 3121(a)(1) (relating to the Federal 
Insurance Contributions Act), or a plan under which the contributions or 
benefits based on that part of an employee's remuneration which is 
excluded from ``wages'' under such act differs from the contributions or 
benefits based on that part of the employee's remuneration which is not 
so excluded, or a plan under which the contributions or benefits differ 
because of any retirement benefit created under State or Federal law, 
will not be discriminatory because of such exclusion or difference, 
provided the total benefits resulting under the plan and under such law 
establish an integrated and correlated retirement system satisfying the 
tests of section 401(a).
    (c)(1) Although a qualified plan may provide for termination at will 
by the employer or discontinuance of contributions thereunder, this will 
not of itself prevent a trust from being a qualified trust. However, a 
qualified pension plan must expressly incorporate provisions which 
comply with the restrictions contained in subparagraph (2) of this 
paragraph at the time the plan is established, unless (i) it is 
reasonably certain at the inception of the plan that such restrictions 
would not affect the amount of contributions which may be used for the 
benefit of any employee, or (ii) the Commissioner determines that such 
provisions are not necessary to prevent the prohibited discrimination 
that may occur in the event of any early termination of the plan. 
Although these provisions are the only provisions required to be 
incorporated in the plan to prevent the discrimination that may arise 
because of an early termination of the plan, the plan may in operation 
result in the discrimination prohibited by section 401(a)(4), unless 
other provisions are later incorporated in the plan. Any pension plan 
containing a provision described in this paragraph shall not fail to 
satisfy section 411(a), (d)(2) and (d)(3) merely by reason of such a 
plan provision. Paragraph (c)(7) of this section sets forth special 
early termination rules applicable to certain qualified defined benefit 
plans for plan years affected by the Employee Retirement Income Security 
Act of 1974 (``ERISA''). Paragraph (c)(7) of this section does not 
contain all the rules required by the enactment of ERISA.
    (2)(i) If employer contributions under a qualified pension plan may 
be used for the benefit of an employee who is among the 25 highest paid 
employees of the employer at the time the plan is established and whose 
anticipated annual pension under the plan exceeds $1,500, such plan must 
provide that upon the occurrence of the conditions described in 
subdivision (ii) of this subparagraph, the employer contributions which 
are used for the benefit of any such employee are restricted in 
accordance with subdivision (iii) of this subparagraph.
    (ii) The restrictions described in subdivision (iii) of this 
subparagraph become applicable if--

[[Page 22]]

    (A) The plan is terminated within 10 years after its establishment,
    (B) The benefits of an employee described in subdivision (i) of this 
subparagraph become payable within 10 years after the establishment of 
the plan, or
    (C) The benefits of an employee described in subdivision (i) of this 
subparagraph become payable after the plan has been in effect for 10 
years, and the full current costs of the plan for the first 10 years 
have not been funded.

In the case of an employee described in (B) of this subdivision, the 
restrictions will remain applicable until the plan has been in effect 
for 10 years, but if at that time the full current costs have been 
funded the restrictions will no longer apply to the benefits payable to 
such an employee. In the case of an employee described in (B) or (C) of 
this subdivision, if at the end of the first 10 years the full current 
costs are not met, the restrictions will continue to apply until the 
full current costs are funded for the first time.
    (iii) The restrictions required under subdivision (i) of this 
subparagraph must provide that the employer contributions which may be 
used for the benefit of an employee described in such subdivision shall 
not exceed the greater of $20,000, or 20 percent of the first $50,000 of 
the annual compensation of such employee multiplied by the number of 
years between the date of the establishment of the plan and--
    (A) The date of the termination of the plan,
    (B) In the case of an employee described in subdivision (ii)(B) of 
this subparagraph, the date the benefit of the employee becomes payable, 
if before the date of the termination of the plan, or
    (C) In the case of an employee described in subdivision (ii)(C) of 
this subparagraph, the date of the failure to meet the full current 
costs of the plan. However, if the full current costs of the plan have 
not been met on the date described in (A) or (B) of this subdivision, 
whichever is applicable, then the date of the failure to meet such full 
current costs shall be substituted for the date referred to in (A) or 
(B) of this subdivision. For purposes of determining the contributions 
which may be used for the benefit of an employee when (b) of this 
subdivision applies, the number of years taken into account may be 
recomputed for each year if the full current costs of the plan are met 
for such year.
    (iv) For purposes of this subparagraph, the employer contributions 
which, at a given time, may be used for the benefits of an employee 
include any unallocated funds which would be used for his benefits if 
the plan were then terminated or the employee were then to withdraw from 
the plan, as well as all contributions allocated up to that time 
exclusively for his benefits.
    (v) The provisions of this subparagraph apply to a former or retired 
employee of the employer, as well as to an employee still in the 
employer's service.
    (vi) The following terms are defined for purposes of this 
subparagraph--
    (A) The term ``benefits'' includes any periodic income, any 
withdrawal values payable to a living employee, and the cost of any 
death benefits which may be payable after retirement on behalf of an 
employee, but does not include the cost of any death benefits with 
respect to an employee before retirement nor the amount of any death 
benefits actually payable after the death of an employee whether such 
death occurs before or after retirement.
    (B) The term full current costs means the normal cost, as defined in 
Sec. 1.404(a)-6, for all years since the effective date of the plan, 
plus interest on any unfunded liability during such period.
    (C) The term annual compensation of an employee means either such 
employee's average regular annual compensation, or such average 
compensation over the last five years, or such employee's last annual 
compensation if such compensation is reasonably similar to his average 
regular annual compensation for the five preceding years.
    (3) The amount of the employer contributions which can be used for 
the benefit of a restricted employee may be limited either by limiting 
the annual amount of the employer contributions for the designated 
employee during the period affected by the limitation, or by limiting 
the amount of funds under the plan which can be used for the benefit

[[Page 23]]

of such employee, regardless of the amount of employer contributions.
    (4) The restrictions contained in subparagraph (2) of this paragraph 
may be exceeded for the purpose of making current retirement income 
benefit payments to retired employees who would otherwise be subject to 
such restrictions, if--
    (i) The employer contributions which may be used for any such 
employee in accordance with the restrictions contained in subparagraph 
(2) of this paragraph are applied either (A) to provide level amounts of 
annuity in the basic form of benefit provided for under the plan for 
such employee at retirement (or, if he has already retired, beginning 
immediately), or (B) to provide level amounts of annuity in an optional 
form of benefit provided under the plan if the level amount of annuity 
under such optional form of benefit is not greater than the level amount 
of annuity under the basic form of benefit provided under the plan;
    (ii) The annuity thus provided is supplemented, to the extent 
necessary to provide the full retirement income benefits in the basic 
form called for under the plan, by current payments to such employee as 
such benefits come due; and
    (iii) Such supplemental payments are made at any time only if the 
full current costs of the plan have then been met, or the aggregate of 
such supplemental payments for all such employees does not exceed the 
aggregate employer contributions already made under the plan in the year 
then current.

If disability income benefits are provided under the plan, the plan may 
contain like provisions with respect to the current payment of such 
benefits.
    (5) If a plan has been changed so as to increase substantially the 
extent of possible discrimination as to contributions and as to benefits 
actually payable in event of the subsequent termination of the plan or 
the subsequent discontinuance of contributions thereunder, then the 
provisions of this paragraph shall be applied to the plan as so changed 
as if it were a new plan established on the date of such change. 
However, the provision in subparagraph (2)(iii) of this paragraph that 
the unrestricted amount of employer contributions on behalf of any 
employee is at least $20,000 is applicable to the aggregate amount 
contributed by the employer on behalf of such employee from the date of 
establishment of the original plan, and, for purposes of determining if 
the employee's anticipated annual pension exceeds $1,500, both the 
employer contributions on the employee's behalf prior to the date of the 
change in the plan and those expected to be made on his behalf 
subsequent to the date of the change (based on the employee's rate of 
compensation on the date of the change) are to be taken into account.
    (6) This paragraph shall apply to taxable years of a qualified plan 
commencing after September 30, 1963. In the case of an early termination 
of a qualified pension plan during any such taxable year, the employer 
contributions which may be used for the benefit of any employee must 
conform to the requirements of this paragraph. However, any pension plan 
which is qualified on September 30, 1963, will not be disqualified 
merely because it does not expressly include the provisions prescribed 
in this paragraph.
    (7)(i) A qualified defined benefit plan subject to section 412 
(without regard to section 412(h)(2)) shall not be required to contain 
the restriction described in paragraph (c)(2)(ii)(c) of this section 
applicable to an employee in a plan whose full current costs for the 
first 10 years have not been funded.
    (ii) A qualified defined benefit plan covered by section 4021(a) of 
ERISA (``qualified Title IV plan'') shall satisfy the restrictions in 
paragraph (c)(2) of this section only if the plan satisfies this 
paragraph (c)(7). A plan satisfies this paragraph (c)(7) by providing 
that employer contributions which may be used for the benefit of an 
employee described in paragraph (c)(2) of this section who is a 
substantial owner, as defined in section 4022(b)(5) of ERISA, shall not 
exceed the greater of the dollar amount described in paragraph 
(c)(2)(iii) of this section or a dollar amount which equals the present 
value of the benefit guaranteed for such employee under section 4022 of 
ERISA, or if the plan has not terminated, the present value of the 
benefit that would

[[Page 24]]

be guaranteed if the plan terminated on the date the benefit commences, 
determined in accordance with regulations of the Pension Benefit 
Guaranty Corporation (``PBGC'').
    (iii) A plan satisfies this paragraph (c)(7) by providing that 
employer contributions which may be used for the benefit of all 
employees described in paragraph (c)(2) of this section (other than an 
employee who is a substantial owner as defined in section 4022(b)(5) of 
ERISA) shall not exceed the greater of the dollar amount described in 
paragraph (c)(2)(iii) of this section or a dollar amount which equals 
the present value of the maximum benefit described in section 
4022(b)(3)(B) of ERISA (determined on the date the plan terminates or on 
the date benefits commence, whichever is earlier and determined in 
accordance with regulations of PBGC) without regard to any other 
limitations in section 4022 of ERISA.
    (iv) A plan provision satisfying this paragraph (c)(7) may be 
adopted by amendment or by incorporation at the time of establishment. 
Any allocation of assets attributable to employer contributions to an 
employee which exceeds the dollar limitation in this paragraph (c)(7) 
may be reallocated to prevent prohibited discrimination.
    (v) The early termination rules in the preceding subparagraphs (1) 
through (6) apply to a qualified Title IV plan except where such rules 
are determined by the Commissioner to be inconsistent with the rules of 
this paragraph (c)(7), Sec. 1.411(d)-2, and section 4044(b)(4) of ERISA. 
The early termination rules of this paragraph (c)(7) contain some of the 
rules under section 401(a)(4) and (a)(7), as in effect on September 2, 
1974, and section 411(d) (2) and (3). Section 1.411(d)-2 also contains 
certain discrimination and vesting rules which are applicable to plan 
terminations.
    (vi) Paragraph (c)(7) of this section applies to plan terminations 
occurring on or after March 12, 1984. For distributions not on account 
of plan terminations, paragraph (c)(7) applies to distributions in plan 
years beginning after December 31, 1983. However, a plan may elect to 
apply that paragraph to distributions not on account of plan termination 
on or after January 10, 1984.
    (d)(1) Except as provided in paragraph (d)(2) of this section, the 
provisions of this section do not apply to plan years beginning on or 
after January 1, 1994. For rules applicable to plan years beginning on 
or after January 1, 1994, see Secs. 1.401(a)(4)-1 through 1.401(a)(4)-
13.
    (2) In the case of plans maintained by organizations exempt from 
income taxation under section 501(a), including plans subject to section 
403(b)(12)(A)(i) (nonelective plans), the provisions of this section do 
not apply to plan years beginning on or after January 1, 1996. For rules 
applicable to plan years beginning on or after January 1, 1996, see 
Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13.

(Secs. 411 (d)(2) and (3) and 7805 of the Internal Revenue Code of 1954 
(68A Stat. 917, 88 Stat. 912; 26 U.S.C. 411(d)(2) and (3) and 7805))

[T.D. 6500, 25 FR 11674, Nov. 26, 1960, as amended by T.D. 6675, 28 FR 
10119, Sept. 17, 1963; T.D. 7934, 49 FR 1183, Jan. 10, 1984; 49 FR 2104, 
Jan. 18, 1984; T.D. 8360, 56 FR 47536, Sept. 19, 1991; T.D. 8485, 58 FR 
46778, Sept. 3, 1993]



Sec. 1.401-5   Period for which requirements of section 401(a) (3), (4), (5), and (6) are applicable with respect to plans put into effect before September 2, 
          1974.

    A pension, profit-sharing, stock bonus, or annuity plan shall be 
considered as satisfying the requirements of section 401(a) (3), (4), 
(5), and (6) for the period beginning with the date on which it was put 
into effect and ending with the 15th day of the third month following 
the close of the taxable year of the employer in which the plan was put 
into effect, if all the provisions of the plan which are necessary to 
satisfy such requirements are in effect by the end of such period and 
have been made effective for all purposes with respect to the whole of 
such period. Thus, if an employer in 1954 adopts such a plan as of 
January 1, 1954, and makes a return on the basis of the calendar year, 
he will have until March 15, 1955, to amend his plan so as to make it 
satisfy the requirements of section 401(a) (3), (4), (5), and (6) for 
the calendar year 1954 provided that by March 15, 1955, all provisions 
of such plan necessary to satisfy such requirements are in effect and 
have been made retroactive for all

[[Page 25]]

purposes to January 1, 1954, the effective date of the plan. If an 
employer is on a fiscal year basis, for example, April 1 to March 31, 
and in 1954 adopts such a plan effective as of April 1, 1954, he will 
have until June 15, 1955, to amend his plan so as to make it satisfy the 
requirements of section 401(a) (3), (4), (5), and (6) for the fiscal 
year beginning April 1, 1954, provided that by June 15, 1955, all 
provisions of such plan necessary to satisfy such requirements are in 
effect and have been made retroactive for all purposes to April 1, 1954, 
the effective date of the plan. It should be noted that under section 
401(b) the period in which a plan may be amended to qualify under 
section 401(a) ends before the date on which taxpayers other than 
corporations are required to file income tax returns. See section 6072. 
This section shall not apply to any pension, profit-sharing, stock 
bonus, or annuity plan put into effect after September 1, 1974, and 
shall not apply with respect to any disqualifying provision to which 
Sec. 1.401(b)-1 applies.

[T.D. 6500, 25 FR 11674, Nov. 26, 1960; as amended by T.D. 7436, 41 FR 
42653, Sept. 28, 1976]



Sec. 1.401-6   Termination of a qualified plan.

    (a) General rules. (1) In order for a pension, profit-sharing, or 
stock bonus trust to satisfy the requirements of section 401, the plan 
of which such trust forms a part must expressly provide that, upon the 
termination of the plan or upon the complete discontinuance of 
contributions under the plan, the rights of each employee to benefits 
accrued to the date of such termination or discontinuance, to the extent 
then funded, or the rights of each employee to the amounts credited to 
his account at such time, are nonforfeitable. As to what constitutes 
nonforfeitable rights of an employee, see paragraph (a)(2) of 
Sec. 1.402(b)-1.
    (2)(i) A qualified plan must also provide for the allocation of any 
previously unallocated funds to the employees covered by the plan upon 
the termination of the plan or the complete discontinuance of 
contributions under the plan. Such provision may be incorporated in the 
plan at its inception or by an amendment made prior to the termination 
of the plan or the discontinuance of contributions thereunder.
    (ii) Any provision for the allocation of unallocated funds is 
acceptable if it specifies the method to be used and does not conflict 
with the provisions of section 401(a)(4) and the regulations thereunder. 
The allocation of unallocated funds may be in cash or in the form of 
other benefits provided under the plan. However, the allocation of the 
funds contributed by the employer among the employees need not 
necessarily benefit all the employees covered by the plan. For example, 
an allocation may be satisfactory if priority is given to benefits for 
employees over the age of 50 at the time of the termination of the plan, 
or those who then have at least 10 years of service, if there is no 
possibility of discrimination in favor of employees who are officers, 
shareholders, employees whose principal duties consist in supervising 
the work of other employees, or highly compensated employees.
    (iii) Subdivisions (i) and (ii) of this subparagraph do not require 
the allocation of amounts to the account of any employee if such amounts 
are not required to be used to satisfy the liabilities with respect to 
employees and their beneficiaries under the plan (see section 
401(a)(2)).
    (b) Termination defined. (1) Whether a plan is terminated is 
generally a question to be determined with regard to all the facts and 
circumstances in a particular case. For example, a plan is terminated 
when, in connection with the winding up of the employer's trade or 
business, the employer begins to discharge his employees. However, a 
plan is not terminated, for example, merely because an employer 
consolidates or replaces that plan with a comparable plan. Similarly, a 
plan is not terminated merely because the employer sells or otherwise 
disposes of his trade or business if the acquiring employer continues 
the plan as a separate and distinct plan of its own, or consolidates or 
replaces that plan with a comparable plan. See paragraph (d)(4) of 
Sec. 1.381(c)(11)-1 for the definition of comparable plan. In addition, 
the Commissioner may determine that other plans

[[Page 26]]

are comparable for purposes of this section.
    (2) For purposes of this section, the term termination includes both 
a partial termination and a complete termination of a plan. Whether or 
not a partial termination of a qualified plan occurs when a group of 
employees who have been covered by the plan are subsequently excluded 
from such coverage either by reason of an amendment to the plan, or by 
reason of being discharged by the employer, will be determined on the 
basis of all the facts and circumstances. Similarly, whether or not a 
partial termination occurs when benefits or employer contributions are 
reduced, or the eligibility or vesting requirements under the plan are 
made less liberal, will be determined on the basis of all the facts and 
circumstances. However, if a partial termination of a qualified plan 
occurs, the provisions of section 401(a)(7) and this section apply only 
to the part of the plan that is terminated.
    (c) Complete discontinuance defined. (1) For purposes of this 
section, a complete discontinuance of contributions under the plan is 
contrasted with a suspension of contributions under the plan, which is 
merely a temporary cessation of contributions by the employer. A 
complete discontinuance of contributions may occur although some amounts 
are contributed by the employer under the plan if such amounts are not 
substantial enough to reflect the intent on the part of the employer to 
continue to maintain the plan. The determination of whether a complete 
discontinuance of contributions under the plan has occurred will be made 
with regard to all the facts and circumstances in the particular case, 
and without regard to the amount of any contributions made under the 
plan by employees.
    (2) In the case of a pension plan, a suspension of contributions 
will not constitute a discontinuance if--
    (i) The benefits to be paid or made available under the plan are not 
affected at any time by the suspension, and
    (ii) The unfunded past service cost at any time (which includes the 
unfunded prior normal cost and unfunded interest on any unfunded cost) 
does not exceed the unfunded past service cost as of the date of 
establishment of the plan, plus any additional past service or 
supplemental costs added by amendment.
    (3) In any case in which a suspension of a profit-sharing plan is 
considered a discontinuance, the discontinuance becomes effective not 
later than the last day of the taxable year of the employer following 
the last taxable year of such employer for which a substantial 
contribution was made under the profit-sharing plan.
    (d) Contributions or benefits which remain forfeitable. The 
provisions of this section do not apply to amounts which are reallocated 
to prevent the discrimination prohibited by section 401(a)(4) (see 
paragraph (c) of Sec. 1.401-4).
    (e) Effective date. This section shall apply to taxable years of a 
qualified plan commencing after September 30, 1963. In the case of the 
termination or complete discontinuance (as defined in this section) of 
any qualified plan during any such taxable year, the rights accorded to 
each employee covered under the plan must conform to the requirements of 
this section. However, a plan which is qualified on September 30, 1963, 
will not be disqualified merely because it does not expressly include 
the provisions prescribed by this section.

[T.D. 6675, 28 FR 10120, Sept. 17, 1963]



Sec. 1.401-7   Forfeitures under a qualified pension plan.

    (a) General rules. In the case of a trust forming a part of a 
qualified pension plan, the plan must expressly provide that forfeitures 
arising from severance of employment, death, or for any other reason, 
must not be applied to increase the benefits any employee would 
otherwise receive under the plan at any time prior to the termination of 
the plan or the complete discontinuance of employer contributions 
thereunder. The amounts so forfeited must be used as soon as possible to 
reduce the employer's contributions under the plan. However, a qualified 
pension plan may anticipate the effect of forfeitures in determining the 
costs under the plan. Furthermore, a qualified plan will not be 
disqualified merely because a determination of the amount of forfeitures

[[Page 27]]

under the plan is made only once during each taxable year of the 
employer.
    (b) Examples. The rules of paragraph (a) of this section may be 
illustrated by the following examples:

    Example (1). The B Company Pension Trust forms a part of a pension 
plan which is funded by individual level annual premium annuity 
contracts. The plan requires ten years of service prior to obtaining a 
vested right to benefits under the plan. One of the company's employees 
resigns his position after two years of service. The insurance company 
paid to the trustees the cash surrender value of the contract--$750. The 
B Company must reduce its next contribution to the pension trust by this 
amount.
    Example (2). The C Corporation's trusteed pension plan has been in 
existence for 20 years. It is funded by individual contracts issued by 
an insurance company, and the premiums thereunder are paid annually. 
Under such plan, the annual premium accrued for the year 1966 is due and 
is paid on January 2, 1966, and on July 1 of the same year the plan is 
terminated due to the liquidation of the employer. Some forfeitures were 
incurred and collected by the trustee with respect to those participants 
whose employment terminated between January 2 and July 1. The plan 
provides that the amount of such forfeitures is to be applied to provide 
additional annuity benefits for the remaining employees covered by the 
plan. The pension plan of the C Corporation satisfies the provisions of 
section 401(a)(8). Although forfeitures are used to increase benefits in 
this case, this use of forfeitures is permissible since no further 
contributions will be made under the plan.

    (c) Effective date. This section applies to taxable years of a 
qualified plan commencing after September 30, 1963. However, a plan 
which is qualified on September 30, 1963, will not be disqualified 
merely because it does not expressly include the provisions prescribed 
by this section.

[T.D. 6675, 28 FR 10121, Sept. 17, 1963]



Sec. 1.401-8  Custodial accounts prior to January 1, 1974.

    (a) Treatment of a custodial account as a qualified trust. For 
taxable years of a plan beginning after December 31, 1962, a custodial 
account may be used, in lieu of a trust, under any pension, profit-
sharing, or stock bonus plan, described in section 401 if the 
requirements of paragraph (b) of this section are met. A custodial 
account may be used under such a plan, whether the plan covers common-
law employees, self-employed individuals who are treated as employees by 
reason of section 401(c), or both. The use of a custodial account as 
part of a plan does not preclude the use of a trust or another custodial 
account as part of the same plan. A plan under which a custodial account 
is used may be considered in connection with other plans of the employer 
in determining whether the requirements of section 401 are satisfied. 
For regulations relating to the period after December 31, 1973, see 
Sec. 1.401(f)-11.
    (b) Rules applicable to custodial accounts. (1) A custodial account 
shall be treated for taxable years beginning after December 31, 1962, as 
a qualified trust under section 401 if such account meets the following 
requirements described in subdivisions (i) through (iii) of this 
subparagraph:
    (i) The custodial account must satisfy all the requirements of 
section 401 that are applicable to qualified trusts. See subparagraph 
(2) of this paragraph.
    (ii) The custodian of the custodial account must be a bank.
    (iii) The custodial agreement provides that the investment of the 
funds in the account is to be made--
    (A) Solely in stock of one or more regulated investment companies 
which is registered in the name of the custodian or its nominee and with 
respect to which an employee who is covered by the plan is the 
beneficial owner, or
    (B) Solely in annuity, endowment, or life insurance contracts, 
issued by an insurance company and held by the custodian until 
distributed pursuant to the terms of the plan. For purposes of the 
preceding sentence, a face-amount certificate described in section 
401(g) and Sec. 1.401-9 is treated as an annuity issued by an insurance 
company.

See subparagraphs (3) and (4) of this paragraph.
    (2) As a result of the requirement described in subparagraph (1)(i) 
of this paragraph (relating to the requirements applicable to qualified 
trusts), the custodial account must, for example, be created pursuant to 
a written agreement which constitutes a valid contract under local law. 
In addition, the terms of the contract must make it impossible, prior to 
the satisfaction of

[[Page 28]]

all liabilities with respect to the employees and their beneficiaries 
covered by the plan, for any part of the funds of the custodial account 
to be used for, or diverted to, purposes other than for the exclusive 
benefit of the employees or their beneficiaries as provided for in the 
plan (see paragraph (a) of Sec. 1.401-2).
    (3) The requirement described in subparagraph (1)(iii) of this 
paragraph, relating to the investment of the funds of the plan, applies, 
for example, to the employer contributions under the plan, any employee 
contributions under the plan, and any earnings on such contributions. 
Such requirement also applies to capital gains realized upon the sale of 
stock described in (A) of such subdivision, to any capital gain 
dividends received in connection with such stock, and to any refunds 
described in section 852(b)(3)(D)(ii) (relating to undistributed capital 
gains of a regulated investment company) which is received in connection 
with such stock. However, since such requirement relates only to the 
investment of the funds of the plan, the custodian may deposit funds 
with a bank, in either a checking or savings account, while accumulating 
sufficient funds to make additional investments or while awaiting an 
appropriate time to make additional investments.
    (4) The requirement in subparagraph (1)(iii)(A) of this paragraph 
that an employee covered by the plan be the beneficial owner of the 
stock does not mean that the employee who is the beneficial owner must 
have a nonforfeitable interest in the stock. Thus, a plan may provide 
for forfeitures of an employee's interest in such stock in the same 
manner as plans which use a trust. In the event of a forfeiture of an 
employee's beneficial ownership in the stock of a regulated investment 
company, the beneficial ownership of such stock must pass to another 
employee covered by the plan.
    (c) Effects of qualification. (1) Any custodial account which 
satisfies the requirements of section 401(f) shall be treated as a 
qualified trust for all purposes of the Internal Revenue Code of 1954. 
Accordingly, such a custodial account shall be treated as a separate 
legal person which is exempt from the income tax by section 501(a). On 
the other hand, such a custodial account is required to file the returns 
described in sections 6033 and 6047 and to supply any other information 
which a qualified trust is required to furnish.
    (2) In determining whether the funds of a custodial account are 
distributed or made available to an employee or his beneficiary, the 
rules which under section 402(a) are applicable to trusts will also 
apply to the custodial account as though it were a separate legal person 
and not an agent of the employee.
    (d) Effect of loss of qualification. If a custodial account which 
has qualified under section 401 fails to qualify under such section for 
any taxable year, such custodial account will not thereafter be treated 
as a separate legal person, and the funds in such account shall be 
treated as made available within the meaning of section 402(a)(1) to the 
employees for whom they are held.
    (e) Definitions. For purposes of this section--
    (1) The term bank means a bank as defined in section 401(d)(1).
    (2) The term regulated investment company means any domestic 
corporation which issues only redeemable stock and is a regulated 
investment company within the meaning of section 851(a) (but without 
regard to whether such corporation meets the limitations of section 
851(b)).

(Secs. 401(f)(2), 7805, Internal Revenue Code of 1954 (88 Stat. 939 and 
68A Stat. 917; 26 U.S.C. 401(f)(2), 7805))

[T.D. 6675, 28 FR 10121, Sept. 17, 1963, as amended by T.D. 7565, 43 FR 
41204, Sept. 15, 1978. Redesignated and amended by T.D. 7748, 46 FR 
1695, Jan. 7, 1981]



Sec. 1.401-9   Face-amount certificates--nontransferable annuity contracts.

    (a) Face-amount certificates treated as annuity contracts. Section 
401(g) provides that a face-amount certificate (as defined in section 
2(a)(15) of the Investment Company Act of 1940 (15 U.S.C. sec. 80a-2) ) 
which is not transferable within the meaning of paragraph (b)(3) of this 
section shall be treated as an annuity contract for purposes of sections 
401 through 404 for any taxable year of a plan subject to such sections 
beginning after December 31, 1962. Accordingly, there may be established 
for any such taxable year a qualified plan

[[Page 29]]

under which such face-amount certificates are purchased for the 
participating employees without the creation of a trust or custodial 
account. However, for such a plan to qualify, the plan must satisfy all 
the requirements applicable to a qualified annuity plan (see section 
403(a) and the regulations thereunder).
    (b) Nontransferability of face-amount certificates and annuity 
contracts. (1)(i) Section 401(g) provides that, in order for any face-
amount certificate, or any other contract issued after December 31, 
1962, to be subject to any provision under sections 401 through 404 
which is applicable to annuity contracts, as compared to other forms of 
investment, such certificate or contract must be nontransferable at any 
time when it is held by any person other than the trustee of a trust 
described in section 401(a) and exempt under section 501(a). Thus, for 
example, in order for a group or individual retirement income contract 
to be treated as an annuity contract, if such contract is not held by 
the trustee of an exempt employees' trust, it must satisfy the 
requirements of this section. Furthermore, a face-amount certificate or 
an annuity contract will be subject to the tax treatment under section 
403(b) only if it satisfies the requirements of section 401(g) and this 
section. Any certificate or contract in order to satisfy the provisions 
of this section must expressly contain the provisions that are necessary 
to make such certificate or contract not transferable within the meaning 
of this paragraph.
    (ii) In the case of any group contract purchased by an employer 
under a plan to which sections 401 through 404 apply, the restriction on 
transferability required by section 401(g) and this section applies to 
the interest of the employee participants under such group contract but 
not to the interest of the employer under such contract.
    (2) If a trust described in section 401(a) which is exempt from tax 
under section 501(a) distributes any annuity, endowment, retirement 
income, or life insurance contract, then the rules relating to the 
taxability of the distributee of any such contract are set forth in 
paragraph (a)(2) of Sec. 1.402(a)-1.
    (3) A face-amount certificate or an annuity contract is transferable 
if the owner can transfer any portion of his interest in the certificate 
or contract to any person other than the issuer thereof. Accordingly, 
such a certificate or contract is transferable if the owner can sell, 
assign, discount, or pledge as collateral for a loan or as security for 
the performance of an obligation or for any other purpose his interest 
in the certificate or contract to any person other than the issuer 
thereof. On the other hand, for purposes of section 401(g), a face-
amount certificate or annuity contract is not considered to be 
transferable merely because such certificate or contract, or the plan of 
which it is a part, contains a provision permitting the employee to 
designate a beneficiary to receive the proceeds of the certificate or 
contract in the event of his death, or contains a provision permitting 
the employee to elect to receive a joint and survivor annuity, or 
contains other similar provisions.
    (4) A material modification in the terms of an annuity contract 
constitutes the issuance of a new contract regardless of the manner in 
which it is made.
    (c) Examples. The rules of this section may be illustrated by the 
following examples:

    Example (1). The P Employees' Annuity Plan is a nontrusteed plan 
which is funded by individual annuity contracts issued by the Y 
Insurance Company. Each annuity contract issued by such company after 
December 31, 1962, provides, on its face, that it is ``not 
transferable''. The terms of each such contract further provide that, 
``This contract may not be sold, assigned, discounted, or pledged as 
collateral for a loan or as security for the performance of an 
obligation or for any other purpose, to any person other than this 
company.'' The annuity contracts of the P Employees' Annuity Plan 
satisfy the requirements of section 401(g) and this section.
    Example (2). The R Company Pension Trust forms a part of a pension 
plan which is funded by individual level premium annuity contracts. Such 
contracts are purchased by the trustee of the R Company Pension Trust 
from the Y Insurance Company. The trustee of the R Company Pension Trust 
is the legal owner of each such contract at all times prior to the 
distribution of such contract to a qualifying annuitant. The trustee 
purchases such a contract on January 3, 1963, in the name of an employee 
who qualifies on

[[Page 30]]

that date for coverage under the plan. At the time such contract is 
purchased, and while the contract is held by the trustee of the R 
Company Pension Trust, the contract does not contain any restrictions 
with respect to its transferability. The annuity contract purchased by 
the trustee of the R Company Pension Trust satisfies the requirements of 
section 401(g) and this section while it is held by the trustee.
    Example (3). A is the trustee of the X Corporation's Employees' 
Pension Trust. The trust forms a part of a pension plan which is funded 
by individual level premium annuity contracts. The trustee is the legal 
owner of such contracts, but the employees covered under the plan obtain 
beneficial interests in such contracts after ten years of service with 
the X Corporation. On January 15, 1980, A distributes to D an annuity 
contract issued to A in D's name on June 25, 1959, and distributes to E 
an annuity contract issued to A in E's name on September 30, 1963. The 
contract issued to D need not be nontransferable, but the contract 
issued to E must be nontransferable in order to satisfy the requirements 
of section 401(g) and this section.
    Example (4). The corpus of the Y Corporation's Employees' Pension 
Plan consists of individual insurance contracts in the names of the 
covered employees and an auxiliary fund which is used to convert such 
policies to annuity contracts at the time a beneficiary of such trust 
retires. F retires on June 15, 1963, and the trustee converts the 
individual insurance contract on F's life to a life annuity which is 
distributed to him. The life annuity issued on F's life must be 
nontransferable in order to satisfy the requirements of section 401(g) 
and this section.

[T.D. 6675, 28 FR 10122, Sept. 17, 1963]



Sec. 1.401-10   Definitions relating to plans covering self-employed individuals.

    (a) In general. (1) Certain self-employed individuals may be covered 
by a qualified pension, annuity, or profit- sharing plan for taxable 
years beginning after December 31, 1962. This section contains 
definitions relating to plans covering self-employed individuals. The 
provisions of Secs. 1.401-1 through 1.401-9, relating to requirements 
which are applicable to all qualified plans, are also generally 
applicable to any plan covering a self-employed individual. However, in 
addition to such requirements, any plan covering a self-employed 
individual is subject to the rules contained in Secs. 1.401-11 through 
1.401-13. Section 1.401-11 contains general rules which are applicable 
to any plan covering a self-employed individual who is an employee 
within the meaning of paragraph (b) of this section. Section 1.401-12 
contains special rules which are applicable to plans covering self-
employed individuals when one or more of such individuals is an owner-
employee within the meaning of paragraph (d) of this section. Section 
1.401-13 contains rules relating to excess contributions by, or for, an 
owner-employee. The provisions of this section and of Secs. 1.401-11 
through 1.401-13 are applicable to taxable years beginning after 
December 31, 1962.
    (2) A self-employed individual is covered under a qualified plan 
during the period beginning with the date a contribution is first made 
by, or for, him under the qualified plan and ending when there are no 
longer funds under the plan which can be used to provide him or his 
beneficiaries with benefits.
    (b) Treatment of a self-employed individual as an employee. (1) For 
purposes of section 401, a self-employed individual who receives earned 
income from an employer during a taxable year of such employer beginning 
after December 31, 1962, shall be considered an employee of such 
employer for such taxable year. Moreover, such an individual will be 
considered an employee for a taxable year if he would otherwise be 
treated as an employee but for the fact that the employer did not have 
net profits for that taxable year. Accordingly, the employer may cover 
such an individual under a qualified plan during years of the plan 
beginning with or within a taxable year of the employer beginning after 
December 31, 1962.
    (2) If a self-employed individual is engaged in more than one trade 
or business, each such trade or business shall be considered a separate 
employer for purposes of applying the provisions of sections 401 through 
404 to such individual. Thus, if a qualified plan is established for one 
trade or business but not the others, the individual will be considered 
an employee only if he received earned income with respect to such trade 
or business and only the amount of such earned income derived from that 
trade or business shall be taken into account for purposes of the 
qualified plan.
    (3)(i) The term employee, for purposes of section 401, does not 
include a self-

[[Page 31]]

employed individual when the term ``common-law'' employee is used or 
when the context otherwise requires that the term ``employee'' does not 
include a self-employed individual. The term ``common- law'' employee 
also includes an individual who is treated as an employee for purposes 
of section 401 by reason of the provisions of section 7701(a)(20), 
relating to the treatment of certain full-time life insurance salesmen 
as employees. Furthermore, an individual who is a common-law employee is 
not a self-employed individual with respect to income attributable to 
such employment, even though such income constitutes net earnings from 
self-employment as defined in section 1402(a). Thus, for example, a 
minister who is a common-law employee is not a self-employed individual 
with respect to income attributable to such employment, even though such 
income constitutes net earnings from self-employment as defined in 
section 1402(a).
    (ii) An individual may be treated as an employee within the meaning 
of section 401(c)(1) of one employer even though such individual is also 
a common-law employee of another employer. For example, an attorney who 
is a common-law employee of a corporation and who, in the evenings 
maintains an office in which he practices law as a self-employed 
individual is an employee within the meaning of section 401(c)(1) with 
respect to the law practice. This example would not be altered by the 
fact that the corporation maintained a qualified plan under which the 
attorney is benefited as a common-law employee.
    (4) For the purpose of determining whether an employee within the 
meaning of section 401(c)(1) satisfies the requirements for eligibility 
under a qualified plan established by an employer, such an employer may 
take into account past services rendered by such an employee both as a 
self-employed individual and as a common-law employee if past services 
rendered by other employees, including common-law employees, are 
similarly taken into account. However, an employer cannot take into 
account only past services rendered by employees within the meaning of 
section 401(c)(1) if past services rendered to such employer by 
individuals who are, or were, common-law employees are not taken into 
account. Past service as described in this subparagraph may be taken 
into account for the purpose of determining whether an individual who 
is, or was, an employee within the meaning of section 401(c)(1) 
satisfies the requirements for eligibility even if such service was 
rendered prior to January 1, 1963. On the other hand, past service 
cannot be taken into account for purposes of determining the 
contributions which may be made on such an individual's behalf under a 
qualified plan.
    (c) Definition of earned income--(1) General rule. For purposes of 
section 401 and the regulations thereunder, ``earned income'' means, in 
general, net earnings from self-employment (as defined in section 
1402(a)) to the extent such net earnings constitute compensation for 
personal services actually rendered within the meaning of section 
911(b).
    (2) Net earnings from self-employment. (i) The computation of the 
net earnings from self-employment shall be made in accordance with the 
provisions of section 1402(a) and the regulations thereunder, with the 
modifications and exceptions described in subdivisions (ii) through (iv) 
of this subparagraph. Thus, an individual may have net earnings from 
self-employment, as defined in section 1402(a), even though such 
individual does not have self-employment income, as defined in section 
1402(b), and, therefore, is not subject to the tax on self-employment 
income imposed by section 1401.
    (ii) Items which are not included in gross income for purposes of 
chapter 1 of the Code and the deductions properly attributable to such 
items must be excluded from the computation of net earnings from self-
employment even though the provisions of section 1402(a) specifically 
require the inclusion of such items. For example, if an individual is a 
resident of Puerto Rico, so much of his net earnings from self-
employment as are excluded from gross income under section 933 must not 
be taken into account in computing his net earnings from self-employment 
which are earned income for purposes of section 401.

[[Page 32]]

    (iii) In computing net earnings from self-employment for the purpose 
of determining earned income, a self-employed individual may disregard 
only deductions for contributions made on his own behalf under a 
qualified plan. However, such computation must take into account the 
deduction allowed by section 404 or 405 for contributions under a 
qualified plan on behalf of the common-law employees of the trade or 
business.
    (iv) For purposes of determining whether an individual has net 
earnings from self-employment and, thus, whether he is an employee 
within the meaning of section 401(c)(1), the exceptions in section 
1402(c) (4) and (5) shall not apply. Thus, certain ministers, certain 
members of religious orders, doctors of medicine, and Christian Science 
practitioners are treated for purposes of section 401 as being engaged 
in a trade or business from which net earnings from self-employment are 
derived. In addition, the exceptions in section 1402(c)(2) shall not 
apply in the case of any individual who is treated as an employee under 
section 3121(d)(3) (A), (C), or (D). Therefore, such individuals are 
treated, for purposes of section 401, as being engaged in a trade or 
business from which net earnings from self-employment may be derived.
    (3) Compensation for personal services actually rendered. (i) For 
purposes of section 401, the term ``earned income'' includes only that 
portion of an individual's net earnings from self-employment which 
constitutes earned income as defined in section 911(b) and the 
regulations thereunder. Thus, such term includes only professional fees 
and other amounts received as compensation for personal services 
actually rendered by the individual. There is excluded from ``earned 
income'' the amount of any item of income, and any deduction properly 
attributable to such item, if such amount is not received as 
compensation for personal services actually rendered. Therefore, an 
individual who renders no personal services has no ``earned income'' 
even though such an individual may have net earnings from self-
employment from a trade or business.
    (ii) If a self-employed individual is engaged in a trade or business 
in which capital is a material income-producing factor, then, under 
section 911(b), his earned income is only that portion of the net 
profits from the trade or business which constitutes a reasonable 
allowance as compensation for personal services actually rendered. 
However, such individual's earned income cannot exceed 30 percent of the 
net profits of such trade or business. The net profits of the trade or 
business is not necessarily the same as the net earnings from self-
employment derived from such trade or business.
    (4) Minimum earned income when both personal services and capital 
are material income-producing factors. (i) If a self-employed individual 
renders personal services on a full-time, or substantially full-time, 
basis to only one trade or business, and if with respect to such trade 
or business capital is a material income-producing factor, then the 
amount of such individual's earned income from the trade or business is 
considered to be not less than so much of his share in the net profits 
of such trade or business as does not exceed $2,500.
    (ii) If a self-employed individual renders substantial personal 
services to more than one trade or business, and if with respect to all 
such trades or businesses such self-employed individual actually renders 
personal services on a full-time, or substantially full-time, basis, 
then the earned income of the self-employed individual from trades or 
businesses for which he renders substantial personal services and in 
which both personal services and capital are material income-producing 
factors is considered to be not less than--
    (A) So much of such individual's share of the net profits from all 
trades or businesses in which he renders substantial personal services 
as does not exceed $2,500, reduced by.
    (B) Such individual's share of the net profits of any trade or 
business in which only personal services is a material income-producing 
factor.

However, in no event shall the share of the net profits of any trade or 
business in which capital is a material income-producing factor be 
reduced below the amount which would, without regard to the provisions 
of this subdivision, be treated as the earned income derived

[[Page 33]]

from such trade or business under section 911(b). In making the 
computation required by this subdivision, any trade or business with 
respect to which the individual renders substantial personal services 
shall be taken into account irrespective of whether a qualified plan has 
been established by such trade or business.
    (iii) If the provisions of subdivision (ii) of this subparagraph 
apply in determining the earned income of a self-employed individual, 
and such individual is engaged in two or more trades or businesses in 
which capital and personal services are material income-producing 
factors, then the total amount treated as the earned income shall be 
allocated to each such trade or business for which he performs 
substantial personal services in the same proportion as his share of net 
profits from each such trade or business bears to his share of the total 
net profits from all such trades or businesses. Thus, in such case, the 
amount of earned income attributable to any such trade or business is 
computed by multiplying the total earned income as determined under 
subdivision (ii) of this subparagraph by the individual's net profits 
from such trade or business and dividing that product by the 
individual's total net profits from all such trades or businesses.
    (iv) For purposes of this subparagraph, the determination of whether 
an individual renders personal services on a full-time, or substantially 
full-time, basis is to be made with regard to the aggregate of the 
trades and businesses with respect to which the employee renders 
substantial personal services as a common-law employee or as a self-
employed individual. However, for all other purposes in applying the 
rules of this subparagraph, a trade or business with respect to which an 
individual is a common-law employee shall be disregarded.
    (d) Definition of owner-employee. For purposes of section 401 and 
the regulations thereunder, the term ``owner-employee'' means a 
proprietor of a proprietorship, or, in the case of a partnership, a 
partner who owns either more than 10 percent of the capital interest, or 
more than 10 percent of the profits interest, of the partnership. Thus, 
an individual who owns only 2 percent of the profits interest but 11 
percent of the capital interest of a partnership is an owner-employee. A 
partner's interest in the profits and the capital of the partnership 
shall be determined by the partnership agreement. In the absence of any 
provision regarding the sharing of profits, the interest in profits of 
the partners will be determined in the same manner as their distributive 
shares of partnership taxable income. However, a guaranteed payment (as 
described in section 707(c)) is not considered a distributive share of 
partnership income for such purpose. See section 704(b), relating to the 
determination of the distributive share by the income or loss ratio, and 
the regulations thereunder. In the absence of a provision in the 
partnership agreement, a partner's capital interest in a partnership 
shall be determined on the basis of his interest in the assets of the 
partnership which would be distributable to such partner upon his 
withdrawal from the partnership, or upon liquidation of the partnership, 
whichever is the greater.
    (e) Definition of employer. (1) For purposes of section 401, a sole 
proprietor is considered to be his own employer, and the partnership is 
considered to be the employer of each of the partners. Thus, an 
individual partner is not an employer who may establish a qualified plan 
with respect to his services to the partnership.
    (2) Regardless of the provision of local law, a partnership is 
deemed, for purposes of section 401, to be continuing until such time as 
it is terminated within the meaning of section 708, relating to the 
continuation of a partnership.

[T.D. 6675, 28 FR 10123, Sept. 17, 1963]



Sec. 1.401-11   General rules relating to plans covering self-employed individuals.

    (a) Introduction. This section provides certain rules which 
supplement, and modify, the rules of Secs. 1.401-1 through 1.401-9 in 
the case of a qualified pension, annuity, or profit-sharing plan which 
covers a self-employed individual who is an employee within the meaning 
of section 401(c)(1). The provisions of this section apply to taxable 
years beginning after December 31,

[[Page 34]]

1962. Except as otherwise provided, paragraphs (b) through (m) of this 
section apply to taxable years beginning after December 31, 1962. 
Paragraph (n) of this section applies to plan years determined in 
accordance with paragraph (n)(1) of this section.
    (b) General rules. (1) If the amount of employer contributions for 
common-law employees covered under a qualified plan is related to the 
earned income (as defined in section 401(c)(2)) of a self-employed 
individual, or group of self-employed individuals, such a plan is a 
profit-sharing plan (as described in paragraph (b)(1)(ii) of Sec. 1.401-
1) since earned income is dependent upon the profits of the trade or 
business with respect to which the plan is established. Thus, for 
example, a plan, which provides that the employer will contribute 10 
percent of the earned income of a self-employed individual but no more 
than $2,500, and that the employer contribution on behalf of common-law 
employees shall be the same percentage of their salaries as the 
contribution on behalf of the self-employed individual bears to his 
earned income, is a profit-sharing plan, since the amount of the 
employer's contribution for common-law employees covered under the plan 
is related to the earned income of a self-employed individual and 
thereby to the profits of the trade or business. On the other hand, for 
example, a plan which defines the compensation of any self-employed 
individual as his earned income and which provides that the employer 
will contribute 10 percent of the compensation of each employee covered 
under the plan is a pension plan since the contribution on behalf of 
common-law employees is fixed without regard to whether the self-
employed individual has earned income or the amount thereof.
    (2) The Self-Employed Individuals Tax Retirement Act of 1962 (76 
Stat. 809) permits self-employed individuals to be treated as employees 
and therefore included in qualified plans, but it is clear that such law 
requires such self-employed individuals to provide benefits for their 
employees on a nondiscriminatory basis. Self-employed individuals will 
not be considered as providing contributions or benefits for an employee 
to the extent that the wages or salary of the employee covered under the 
plan are reduced at or about the time the plan is adopted.
    (3) In addition to permitting self-employed individuals to 
participate in qualified plans, the Self-Employed Individuals Tax 
Retirement Act of 1962 extends to such individuals some of the tax 
benefits allowed common-law employee-participants in such plans. 
However, the tax benefits allowed a self-employed individual are 
restricted by the limits which are placed on the deductions allowed for 
contributions on such an individual's behalf. In view of these 
restrictions on the tax benefits extended to any self-employed 
individual, a self-employed individual participating in a qualified plan 
may not participate in any forfeitures. Therefore, in the case of a 
qualified plan which covers any self-employed individual, a separate 
account must be established for each self-employed individual to which 
no forfeitures can be allocated.
    (c) Requirements as to coverage. (1) In general, section 401(a)(3) 
and the regulations thereunder prescribe the coverage requirements which 
a qualified plan must satisfy. However, if such a plan covers self-
employed individuals who are not owner-employees, it must, in addition 
to satisfying such requirements, satisfy the requirements of this 
paragraph. If any owner-employee is covered under a qualified plan, the 
provisions of this paragraph do not apply, but the provisions of section 
401(d), including section 401(d)(3), do apply (see Sec. 1.401-12).
    (2)(i) Section 401(a)(3)(B) provides that a plan may satisfy the 
coverage requirements for qualification if it covers such employees as 
qualify under a classification which is found not to discriminate in 
favor of employees who are officers, shareholders, persons whose 
principal duties consist in supervising the work of other employees, or 
highly compensated employees. Section 401(a)(5) sets forth certain 
classifications that will not in themselves be considered 
discriminatory. Under such section, a classification which excludes all 
employees whose entire remuneration constitutes ``wages'' under section

[[Page 35]]

3121(a)(1), will not be considered discriminatory merely because of such 
exclusion. Similarly, a plan which includes all employees will not be 
considered discriminatory solely because the contributions or benefits 
based on that part of their remuneration which is excluded from 
``wages'' under section 3121(a)(1) differ from the contributions or 
benefits based on that part of their remuneration which is not so 
excluded. However, in determining if a classification is discriminatory 
under section 401(a)(3)(B), consideration will be given to whether the 
total benefits resulting to each employee under the plan and under the 
Social Security Act, or under the Social Security Act only, establish an 
integrated and correlated retirement system satisfying the tests of 
section 401(a). A plan which covers self-employed individuals, none of 
whom is an owner-employee, may also be integrated with the contributions 
or benefits under the Social Security Act. In such a case, the portion 
of the earned income (as defined in section 401(c)(2)) of such an 
individual which does not exceed the maximum amount which may be treated 
as self-employment income under section 1402(b)(1), and which is derived 
from the trade or business with respect to which the plan is 
established, shall be treated as ``wages'' under section 3121(a)(1) 
subject to the tax imposed by section 3111 (relating to the tax on 
employers) for purposes of applying the rules of paragraph (e)(2) of 
Sec. 1.401-3, relating to the determination of whether a plan is 
properly integrated. However, if the plan covers an owner-employee, the 
rules relating to the integration of the plan with the contributions or 
benefits under the Social Security Act contained in paragraph (b) of 
Sec. 1.401-12 apply.
    (ii) Certain of the classifications enumerated in section 401(a)(5) 
do not apply to plans which provide contributions or benefits for any 
self-employed individual. Since self-employed individuals are not 
salaried or clerical employees, the provision in section 401(a)(5) 
permitting a plan, in certain cases to cover only this type of employee 
is inapplicable to plans which cover any self-employed individual.
    (iii) The classifications enumerated in section 401(a)(5) are not 
exclusive, and it is not necessary that a qualified plan cover all 
employees or all full-time employees. Plans may qualify even though 
coverage is limited in accordance with a particular classification 
incorporated in the plan, provided the effect of covering only such 
employees as satisfy such eligibility requirement does not result in the 
prohibited discrimination.
    (d) Discrimination as to contributions or benefits--(1) In general. 
In order for a plan to be qualified, there must be no discrimination in 
contributions or benefits in favor of employees who are officers, 
shareholders, supervisors, or highly compensated, as against other 
employees whether within or without the plan. A self-employed 
individual, by reason of the contingent nature of his compensation, is 
considered to be a highly-compensated employee, and thus is a member of 
the group in whose favor discrimination is prohibited. In determining 
whether the prohibited discrimination exists, the total employer 
contribution on behalf of a self-employed individual shall be taken into 
account regardless of the fact that only a portion of such contribution 
is allowed as a deduction. For additional rules relating to 
discrimination as to contributions or benefits with regard to plans 
covering any owner-employee, see Sec. 1.401-12.
    (2) Base for computing contributions or benefits. (i) A plan which 
is otherwise qualified is not considered discriminatory merely because 
the contributions or benefits provided under the plan bear a uniform 
relationship to the total compensation, basic compensation, or regular 
rate of compensation of the employees, including self-employed 
individuals, covered under the plan.
    (ii) In the case of a self-employed individual who is covered under 
a qualified plan, the total compensation of such individual is the 
earned income (as defined in section 401(c)(2)) which such individual 
derives from the employer's trade or business, or trades or businesses, 
with respect to which the qualified plan is established. Thus, for 
example, in the case of a partner, his total compensation includes both 
his

[[Page 36]]

distributive share of partnership income, whether or not distributed, 
and guaranteed payments described in section 707(c) made to him by the 
partnership establishing the plan, to the extent that such income 
constitutes earned income as defined in section 401(c)(2).
    (iii)(A) The basic or regular rate of compensation of any self-
employed individual is that portion of his earned income which bears the 
same ratio to his total earned income derived from the trade or 
business, or trades or businesses, with respect to which the qualified 
plan is established as the aggregate basic or regular compensation of 
all common-law employees covered under the plan bears to the aggregate 
total compensation of such employees derived from such trade or 
business, or trades or businesses.
    (B) If an employer establishes two or more plans which satisfy the 
requirements of section 401(a) separately, and only one such plan covers 
a self-employed individual, the determination of the basic or regular 
rate of compensation of such self-employed individual is made with 
regard to the compensation of common-law employees covered under the 
plan which provides contributions or benefits for such self-employed 
individual. On the other hand, if two or more plans must be considered 
together in order to satisfy the requirements of section 401(a), the 
computation of the basic or regular rate of compensation of a self-
employed individual must be made with regard to the compensation of the 
common-law employees covered by so many of such plans as are required to 
be taken together in order to satisfy the qualification requirements of 
section 401(a).
    (3) Discriminatory contributions. If a discriminatory contribution 
is made by, or for, a self-employed individual who is an employee within 
the meaning of section 401(c)(1) because of an erroneous assumption as 
to the earned income of such individual, the plan will not be considered 
discriminatory if adequate adjustment is made to remove such 
discrimination. In the case of any self-employed individual who is an 
owner-employee, the amount of any excess contribution to be returned and 
the manner in which it is to be repaid are determined by the provisions 
of section 401(d)(8) and (e). However, if any self-employed individual, 
including any owner-employee, has not made the full contribution 
permitted to be made on his behalf as an employee, then, if the plan 
expressly provides, so much of any excess contribution by such self-
employed individual's employer as may, under the provisions of the plan, 
be treated as a contribution made by such individual as an employee can 
be so treated.
    (e) Distribution of entire interest. (1) If a trust forms part of a 
plan which covers a self-employed individual, such trust shall 
constitute a qualified trust under section 401 only if the plan of which 
such trust is a part expressly provides that the entire interest of each 
employee, including any common-law employee, will be distributed in 
accordance with the provisions of subparagraph (2) or (3) of this 
paragraph.
    (2) Unless the provisions of subparagraph (3) of this paragraph 
apply, the entire interest of each employee (including contributions he 
has made on his own behalf, contributions made on his behalf by his 
employer, and interest thereon) must be actually distributed to such 
employee--
    (i) In the case of an employee, other than an individual who is, or 
has been, an owner-employee under the plan, not later than the last day 
of the taxable year of such employee in which he attains the age of 
70\1/2\, or not later than the last day of the taxable year in which 
such employee retires, whichever is later, and
    (ii) In the case of an employee who is, or has been, an owner-
employee under the plan, not later than the last day of the taxable year 
in which he attains the age of 70\1/2\.
    (3) In lieu of distributing an employee's entire interest in a 
qualified plan as provided in subparagraph (2) of this paragraph, such 
interest may be distributed commencing no later than the last taxable 
year described in such subparagraph (2). In such case, the plan must 
expressly provide that the entire interest of such an employee shall be 
distributed to him and his beneficiaries, in a manner which satisfies 
the requirements of subparagraph (5) of

[[Page 37]]

this paragraph, over any of the following periods (or any combination 
thereof)--
    (i) The life of the employee, or
    (ii) The lives of the employee and his spouse, or
    (iii) A period certain not longer than the life expectancy of the 
employee, or
    (iv) A period certain not longer than the joint life and last 
survivor expectancy of the employee and his spouse.
    (4) For purposes of subparagraphs (3) and (5) of this paragraph, the 
determination of the life expectancy of the employee or the joint life 
and last survivor expectancy of the employee and his spouse is to be 
made either (i) only once, at the time the employee receives the first 
distribution of his entire interest under the plan, or (ii) 
periodically, in a consistent manner. Such life expectancy or joint life 
and last survivor expectancy cannot exceed the period computed by the 
use of the expected return multiples in Sec. 1.72-9, or, in the case of 
payments under a contract issued by an insurance company, the period 
computed by use of the life expectancy tables of such company.
    (5) If an employee's entire interest is to be distributed over a 
period described in subparagraph (3) of this paragraph, then the amount 
to be distributed each year must be at least an amount equal to the 
quotient obtained by dividing the entire interest of the employee under 
the plan at the time the distribution is made (expressed in either 
dollars or units) by the life expectancy of the employee, or joint life 
and last survivor expectancy of the employee and his spouse (whichever 
is applicable), determined in accordance with the provisions of 
subparagraph (4) of this paragraph. However, no distribution need be 
made in any year, or a lesser amount may be distributed, if the 
aggregate amounts distributed by the end of that year are at least equal 
to the aggregate of the minimum amounts required by this subparagraph to 
have been distributed by the end of such year.
    (6) If an employee's entire interest is distributed in the form of 
an annuity contract, then the requirements of section 401(a)(9) are 
satisfied if the distribution of such contract takes place before the 
end of the latest taxable year described in subparagraph (2) of this 
paragraph, and if the employee's interest will be paid over a period 
described in subparagraph (3) of this paragraph and at a rate which 
satisfies the requirements of subparagraph (5) of this paragraph.
    (7) The requirements of section 401(a)(9) do not preclude 
contributions from being made on behalf of an owner-employee under a 
qualified plan subsequent to the taxable year in which the distribution 
of his entire interest is required to commence. Thus, if all other 
requirements for qualification are satisfied, a qualified plan may 
provide contributions for an owner-employee who has already attained age 
70\1/2\. However, a distribution of benefits attributable to 
contributions made on behalf of an owner-employee in a taxable year 
beginning after the taxable year in which he attains the age of 70\1/2\ 
must satisfy the requirements of subparagraph (3) of this paragraph. 
Thus, if an owner-employee has already attained the age of 70\1/2\ at 
the time the first contribution is made on his behalf, the distribution 
of his entire interest must commence in the year in which such 
contribution is first made on his behalf.
    (8) This paragraph shall not apply and an otherwise qualified trust 
will not be disqualified if the method of distribution under the plan is 
one which was designated by a common-law employee prior to October 10, 
1962, and such method of distribution is not in accordance with the 
provisions of section 401(a)(9). Such exception applies regardless of 
whether the actual distribution of the entire interest of an employee 
making such a designation, or any portion of such interest, has 
commenced prior to October 10, 1962.

[T.D. 6675, 28 FR 10124, Sept. 17, 1963, as amended by T.D. 6982, 33 FR 
16500, Nov. 13, 1968]



Sec. 1.401-12   Requirements for qualification of trusts and plans benefiting owner-employees.

    (a) Introduction. This section prescribes the additional 
requirements which must be met for qualification of a trust forming part 
of a pension or profit-sharing plan, or of an annuity plan, which covers 
any self-employed

[[Page 38]]

individual who is an owner-employee as defined in section 401(c)(3). 
However, to the extent that the provisions of Sec. 1.401-11 are not 
modified by the provisions of this section, such provisions are also 
applicable to a plan which covers an owner-employee. The provisions of 
this section apply to taxable years beginning after December 31, 1962. 
Except as otherwise provided, paragraphs (b) through (m) of this section 
apply to taxable years beginning after December 31, 1962. Paragraph (n) 
of this section applies to plan years determined in accordance with 
paragraph (n)(1) of the section.
    (b) General rules. (1) The qualified plan and trust of an 
unincorporated trade or business does not have to satisfy the additional 
requirements for qualification merely because an owner-employee derives 
earned income (as defined in section 401(c)(2)) from the trade or 
business with respect to which the plan is established. Such additional 
requirements need be satisfied only if an owner-employee is actually 
covered under the plan of the employer. An owner-employee may only be 
covered under a plan of an employer if such owner-employee has so 
consented. However, the consent of the owner-employee may be either 
expressed or implied. Thus, for example, if contributions are, in fact, 
made on behalf of an owner-employee, such owner-employee is considered 
to have impliedly consented to being covered under the plan.
    (2) A qualified plan covering an owner-employee must be a definite 
written program and arrangement setting forth all provisions essential 
for qualification at the time such plan is established. Therefore, for 
example, even though the owner-employee is the only employee covered 
under the plan at the time the plan is established, the plan must 
incorporate all the provisions relating to the eligibility and benefits 
of future employees.
    (c) Bank trustee. (1)(i) If a trust created after October 9, 1962, 
is to form a part of a qualified pension or profit-sharing plan covering 
an owner-employee, or if a trust created before October 10, 1962, but 
not exempt from tax on October 9, 1962, is to form part of such a plan, 
the trustee of such trust must be a bank as defined in paragraph (c)(2) 
of this section, unless an exception contained in paragraph (c)(4) of 
this section applies, or paragraph (n) of this section applies.
    (ii) The provisions of this paragraph do not apply to an employees' 
trust created prior to October 10, 1962, if such trust was exempt from 
tax on October 9, 1962, even though the plan of which such trust forms a 
part is amended after December 31, 1962, to cover any owner-employee. 
Although the trustee of a trust described in the preceding sentence need 
not be a bank, all other requirements for the qualification of such a 
trust must be satisfied at the time an owner-employee is first covered 
under such plan.
    (2) The term bank as used in this paragraph means--
    (i) A bank as defined in section 581;
    (ii) A corporation which, under the laws of the State of its 
incorporation or under the laws of the District of Columbia, is subject 
to both the supervision of, and examination by, the authority in such 
jurisdiction in charge of the administration of the banking laws;
    (iii) In the case of a trust created or organized outside of the 
United States, that is, outside the States and the District of Columbia, 
a bank or trust company, wherever incorporated, exercising fiduciary 
powers and subject to both supervision and examination by governmental 
authority;
    (iv) Beginning on January 1, 1974, an insured credit union (within 
the meaning of section 101 (6) of the Federal Credit Union Act, 12 
U.S.C. 1752 (6)).
    (3) Although a bank is required to be the trustee of a qualified 
trust, another person, including the employer, may be granted the power 
in the trust instrument to control the investment of the trust funds 
either by directing investments, including reinvestments, disposals, and 
exchanges, or by disapproving proposed investments, including 
reinvestments, disposals, or exchanges.
    (4)(i) This paragraph does not apply to a trust created or organized 
outside the States and the District of Columbia before October 10, 1962, 
if, on October 9, 1962, such trust is described in section 402(c) as an 
organization treated as if it was a trust exempt from tax under section 
501(a).

[[Page 39]]

    (ii) In addition, the requirement that the trustee must be a bank 
does not apply to a qualified trust forming a part of a pension or 
profit-sharing plan if--
    (A) The investments of all the funds in such trust are in annuity, 
endowment, or life insurance contracts, issued by a company which is a 
life insurance company as defined in section 801(a) during the taxable 
year immediately preceding the year that such contracts are originally 
purchased;
    (B) All the proceeds which are, or may become, payable under the 
contract are payable directly to the employee or his beneficiary;
    (C) The plan contains a provision to the effect that the employer is 
to substitute a bank as a trustee or custodian of the contracts if the 
employer is notified by the district director that such substitution is 
required because the trustee is not keeping such records, or making such 
returns, or rendering such statements, as are required by forms or 
regulations.

However, a qualified trust may only purchase insurance protection to the 
extent permitted under a qualified plan (see paragraph (b)(1) (i) and 
(ii) of Sec. 1.401-1).
    (5) An employer may designate several trusts (or custodial accounts) 
or a trust or trusts and an annuity plan or plans as constituting parts 
of a single plan which is intended to satisfy the requirements for 
qualification. However, each trust (or custodial account) so designated 
which is part of a plan covering an owner-employee must satisfy the 
requirements of this paragraph. Thus, for example, if all other 
requirements for qualification are satisfied by the plan, a qualified 
profit-sharing plan may provide that a portion of the contributions 
under the plan will be paid to a custodial account, the custodian of 
which is a bank, for investment in stock of a regulated investment 
company, and the remainder of such contributions will be paid to a 
trust, the trustee of which is not a bank, for investment in annuity 
contracts.
    (d) Profit-sharing plan. (1) A profit-sharing plan, as defined in 
paragraph (b)(1)(ii) of Sec. 1.401-1, which covers any owner-employee 
must contain a definite formula for determining the contributions to be 
made by the employer on behalf of employees, other than owner-employees. 
A formula to be definite must specify the portion of profits to be 
contributed to the trust and must also define profits for plan purposes. 
A definite formula may contain a variable factor, if the value of such 
factor may not vary at the discretion of the employer. For example, the 
percentage of profits to be contributed each year may differ depending 
on the amount of profits. On the other hand, a formula which, for 
example, specifies that profits for plan purposes are not to exceed the 
cash on hand at the time the employer contribution is made is not a 
definite formula. The requirement that the plan formula be definite is 
satisfied if such formula limits the amount to be contributed on behalf 
of all employees covered under the plan to the amount which permits 
self-employed individuals to obtain the maximum deduction under section 
404(a). However, even though the plan formula is definite, the plan must 
satisfy all the other requirements for qualification, including the 
requirement that the contributions under the plan not discriminate in 
favor of any self-employed individual, and the requirement that the plan 
be for the exclusive benefit of the employees in general.
    (2) A definite contribution formula constitutes an integral part of 
a qualified profit-sharing plan and may not be amended except for a 
valid business reason.
    (3) The requirement that a profit-sharing plan contain a definite 
formula for determining the amount of contributions to be made on behalf 
of employees does not apply to contributions which are made on behalf of 
owner-employees. However, such contributions are subject to the 
requirement that they be nondiscriminatory with respect to other 
employees and must not exceed the limitations on allowable and 
deductible contributions which may be made by owner-employees.
    (e) Requirements as to coverage--(1) Coverage of all employees. The 
coverage requirements contained in section 401(a)(3) do not apply to a 
plan which covers any owner-employee. However, such a plan must satisfy 
the coverage

[[Page 40]]

requirements of section 401(d), including section 401(d)(3). 
Accordingly, a plan which covers an owner-employee must benefit each 
employee of the trade or business (other than any owner-employee who 
does not consent to be covered under the plan) whose customary period of 
employment has been for more than 20 hours a week for more than five 
months during each of three consecutive periods of twelve calendar 
months. Therefore, a plan may not provide, for example, that an 
employee, other than an owner-employee, is ineligible to participate 
because he does not consent to be a participant or because he does not 
consent to make reasonable contributions under the plan.
    (2) Period of service. (i) In determining whether an employee 
renders service to the same employer, and, therefore, must be covered 
under the plan of such employer, a partnership is considered to be one 
employer during the entire period prior to the time it is terminated 
within the meaning of section 708 (see paragraph (e)(2) of Sec. 1.401-
10).
    (ii) In the case of a common-law employee who becomes an employee 
within the meaning of section 401(c)(1) with respect to the same trade 
or business, his period of employment is the aggregate of his service as 
a common-law employee and an employee within the meaning of section 
401(c)(1).
    (iii) In determining whether any employee, including any owner-
employee, has three years of service, past service of any such employee 
may be taken into account as provided in paragraph (b) of Sec. 1.401-10. 
Thus, if an employer takes into account past service for any owner-
employee, he must take into account the past service of all his other 
employees to the same extent. However, a plan may provide for coverage 
after a period of service which is shorter than three years, but in no 
case may the plan require a waiting period for employees which is longer 
than that required for the owner-employees.
    (f) Discrimination in contributions or benefits. (1) Variations in 
contributions or benefits may be provided under the plan so long as the 
plan does not discriminate, either as to contributions or benefits, in 
favor of officers, employees whose principal duties consist in 
supervising the work of other employees, or highly compensated 
employees, as against other employees (see Sec. 1.401-4). For the 
purpose of determining whether the provisions of a plan which provide 
contributions or benefits for an owner-employee result in the prohibited 
discrimination, an owner-employee, like other self-employed individuals, 
is considered a highly compensated employee (see paragraph (d) of 
Sec. 1.401-11). Whether or not a plan is discriminatory is determined by 
the actual operation of the plan as well as by its formal provisions.
    (2) The provisions of section 401(a)(5), relating to certain plan 
provisions which will not in and of themselves be considered 
discriminatory, are not applicable to any plan which covers any owner-
employee. Such a plan must, instead, satisfy the requirements of section 
401(a)(10) and section 401(d)(6). Accordingly, a plan is not 
discriminatory within the meaning of section 401(a)(4) merely because 
the contributions or benefits provided for the employees covered under 
the plan bear a uniform relationship to the total compensation, or to 
the basic or regular rate of compensation, of such employees. The total 
compensation or the basic or regular rate of compensation of an owner-
employee is computed in accordance with the provisions of paragraph 
(d)(2) of Sec. 1.401-11.
    (3) Even though the contributions under the plan do not bear a 
uniform relationship to the total compensation, or the basic or regular 
rate of compensation, of the employees covered thereunder and the plan 
would otherwise be considered discriminatory within the meaning of 
section 401(a)(4), the plan shall not be considered discriminatory if 
such variation is due to employer contributions on behalf of any owner-
employee which are required, under the plan, to be applied to pay 
premiums or other consideration on one or more level premium contracts 
described in section 401(e)(3)(A). In a taxable year to which the 
foregoing exception applies and, therefore, one in which the 
contributions under the plan would otherwise be discriminatory, the 
employer contributions to

[[Page 41]]

pay such premiums or other consideration must be the only employer 
contributions made for the owner-employee, and the contributions for 
such taxable year under such plan must not be in excess of the amount 
permitted to be paid toward the purchase of such a contract under the 
provisions of section 401(e)(3). Furthermore, the exception described in 
this subparagraph only applies to contributions made under a plan which 
otherwise satisfies the requirements of section 401(a)(4) and the 
regulations thereunder. Thus, if a plan provides for the purchase, in 
accordance with section 401(e)(3), of a level premium contract for an 
owner-employee, then such plan must provide either that the benefits for 
all employees are nondiscriminatory or, in the case of a money-purchase 
type of plan, that the contributions for all employees are based on 
compensation determined in a non-discriminatory manner. For example, 
since the contributions on behalf of the owner-employee are based on his 
earned income during the period preceding the purchase of the contract, 
the contributions for other employees must be based on their 
compensation during the same period if this will result in larger 
contributions on their behalf.
    (4) In the case of a plan which covers any owner-employee, the 
contributions or benefits provided under the plan cannot vary with 
respect to years of service except as provided in subparagraph (5) of 
this paragraph.
    (5) The provisions of section 401(d)(3) do not preclude the coverage 
of employees with less than three years of service if such coverage is 
provided on a nondiscriminatory basis. However, a plan will not be 
disqualified merely because the contributions or benefits for employees 
who have less than three years of service are not as favorable as the 
contributions or benefits for employees having more than three years of 
service.
    (g) Nonforfeitable rights. (1)(i) Except as provided in subparagraph 
(2) of this paragraph, if an owner-employee is covered under the plan of 
his employer, each employee's rights to the contributions, or to the 
benefits derived from the contributions, of such employer must be 
nonforfeitable at the time such contributions are paid to, or under, the 
plan. The employees who must obtain such nonforfeitable rights include 
the self-employed individuals who are covered under the plan. As to what 
constitutes nonforfeitable rights of an employee, see paragraph (a)(2) 
of Sec. 1.402(b)-1.
    (ii) Under section 401(d)(2), it is necessary that each employee 
obtain nonforfeitable rights to the employer contributions under the 
plan on his behalf from the time such contributions are paid. Thus, each 
employee must have a nonforfeitable interest to the portion of the funds 
under the plan which is allocable to the employer contributions made 
under the plan on his behalf.
    (2) The provisions of subparagraph (1) of this paragraph do not 
apply to the extent that employer contributions on behalf of any 
employee must remain forfeitable in order to satisfy the requirements of 
paragraph (c) of Sec. 1.401-4. However, employer contributions on behalf 
of employees whose rights are required to remain forfeitable to satisfy 
such requirements must be nonforfeitable except for such contingency.
    (h) Integration with social security. (1) If a qualified plan covers 
any owner-employee, then the rules relating to the integration of such 
plan with the contributions or benefits under the Social Security Act 
are provided in this paragraph. Accordingly, the provisions of paragraph 
(e) of Sec. 1.401-3 and paragraph (c) of Sec. 1.401-11 do not apply to 
such a plan. In the case of a plan which provides contributions or 
benefits for any owner-employee, integration of the plan with the Social 
Security Act for any taxable year of the employer can take place only if 
not more than one-third of the employer contributions under the plan 
which are deductible under section 404 for that year are made on behalf 
of the owner-employees. If such requirement is satisfied, then the plan 
may be integrated with the contributions or benefits under the Social 
Security Act in accordance with the rules of subparagraph (3) of this 
paragraph.
    (2)(i) For purposes of subparagraph (1) of this paragraph, in 
determining

[[Page 42]]

the total amount of employer contributions which are deductible under 
section 404, the provisions of section 404(a), including the provisions 
of section 404(a)(9) (relating to plans benefiting self-employed 
individuals), and section 404(e) (relating to the special limitations 
for self-employed individuals) are taken into account, but the 
provisions of section 404(a)(10) (relating to the special limitation on 
the amount allowed as a deduction for self-employed individuals) are not 
taken into account.
    (ii) The amount of deductible employer contributions which are made 
on behalf of all owner-employees for the year is compared with the 
amount of deductible employer contributions for the year made on behalf 
of all employees covered under the plan (including self-employed 
individuals who are not owner-employees and owner-employees) for the 
purpose of determining whether the deductible contributions by the 
employer on behalf of owner-employees are not more than one-third of the 
total deductible contributions.
    (3) If a plan covering an owner-employee satisfies the requirement 
of subparagraph (1) of this paragraph, and if the employer wishes to 
integrate such plan with the contributions or benefits under the Social 
Security Act, then--
    (i) The employer contributions under the plan on behalf of any 
owner-employee shall be reduced by an amount determined by multiplying 
the earned income of such owner-employee which is derived from the trade 
or business with respect to which the plan is established and which does 
not exceed the maximum amount which may be treated as self-employment 
income under section 1402(b)(1), by the rate of tax imposed under 
section 1401(a); and
    (ii) The employer contributions under the plan on behalf of any 
employee other than an owner-employee may be reduced by an amount not in 
excess of the amount determined by multiplying the employee's wages 
under section 3121(a)(1) by the rate of tax imposed under section 
3111(a). For purposes of this subdivision, the earned income of a self-
employed individual which is derived from the trade or business with 
respect to which the plan is established and which is treated as self-
employment income under section 1402(b)(1), shall be treated as 
``wages'' under section 3121(a)(1).
    (4) A money purchase pension plan or a profit-sharing plan may 
provide that such plan will be integrated with the Social Security Act 
only for such taxable years of the employer in which the requirements 
for integration are satisfied. However, a qualified plan cannot provide 
that employer contributions are only to be made for taxable years in 
which the integration requirements are satisfied.
    (i) Limit on contributions on behalf of an owner-employee. (1) 
Section 401(d)(5) requires that a plan which covers any owner-employee 
must contain provisions which restrict the employer contributions that 
may be made on behalf of any owner-employee for each taxable year to an 
amount no greater than that which is deductible under section 404. In 
computing the amount deductible under section 404 for purposes of 
section 401(d)(5) and this paragraph, the limitations contained in 
section 404(a)(9) and (e), relating to special limitations for self-
employed individuals, are taken into account, but such amount is 
determined without regard to section 404(a)(10), relating to the special 
limitation on the amount allowed as a deduction for self-employed 
individuals. Accordingly, a qualified plan which covers any owner-
employee cannot permit employer contributions to be made on behalf of 
such owner-employee in excess of 10 percent of the earned income which 
is derived by such owner-employee from the trade or business with 
respect to which the plan is established, or permit the employer to 
contribute more than $2,500 on behalf of any such owner-employee for any 
taxable year.
    (2)(i) In determining whether the plan permits contributions to be 
made in excess of the limitations of subparagraph (1) of this paragraph, 
employer contributions under the plan which are allocable to the 
purchase of life, accident, health, or other insurance are not to be 
taken into account. To determine the amount of employer contributions 
under the plan which are allocable to the purchase of life, accident, 
health, or other insurance, see paragraph (f) of Sec. 1.404(e)-1 and 
paragraph (b) of Sec. 1.72-16.

[[Page 43]]

However, contributions for such insurance can be made only to the extent 
otherwise permitted under sections 401 through 404 and the regulations 
thereunder.
    (ii) A further exception to the limit on the amount of contributions 
which an employer may make under the plan on behalf of an owner-employee 
is made in the case of contributions which are required, under the plan, 
to be applied to pay premiums or other consideration for one or more 
annuity, endowment, or life insurance contracts described in section 
401(e)(3) (see section 401(e)(3) and the regulations thereunder).
    (j) Excess contributions. The provisions of section 401(e) define 
the term ``excess contribution'' and indicate the consequences of making 
such a contribution (see Sec. 1.401-13). However, section 401(d)(8) 
provides that a qualified plan which provides contributions or benefits 
for any owner-employee must contain certain provisions which complement 
the rules contained in section 401(e). Under section 401(d)(8), a 
qualified plan must provide that--
    (1) The net amount of any excess contribution (determined in 
accordance with the provisions of Sec. 1.401-13) must be returned to the 
owner-employee on whose behalf it is made, together with the net income 
earned on such excess contribution;
    (2) For each taxable year for which the trust is considered to be a 
nonqualified trust with respect to an owner-employee under section 
401(e)(2) because the net amount of an excess contribution and the 
earnings thereon have not been returned to such owner-employee, the 
income of the trust for that taxable year attributable to the interest 
of such owner-employee is to be paid to him.
    (3) If an excess contribution is determined to be willfully made 
(within the meaning of section 401(e)(2)(E)), the entire interest of the 
owner-employee on whose behalf such contribution was made is required to 
be distributed to such owner-employee. Furthermore, the plan must 
require the distribution of an owner-employee's entire interest under 
the plan if a willful excess contribution is determined to have been 
made under any other plan in which the owner-employee is covered as an 
owner-employee.
    (k) Contributions of property under a qualified plan. (1) The 
contribution of property, other than money, prior to January 1, 1975, by 
the person who is the employer (within the meaning of section 401(c)(4)) 
to a qualified trust forming a part of a plan which covers employees 
some or all of whom are owner-employees who control (within the meaning 
of section 401(d)(9)(B) and the regulations thereunder) the trade or 
business with respect to which the plan is established is a prohibited 
transaction between such trust and the employer-grantor of such trust 
(see section 503(g) prior to its repeal by sec. 2003(b)(5) of the 
Employee Retirement Income Security Act of 1974 (88 Stat. 978)).
    (2) A contribution of property, other than money, prior to January 
1, 1975, to a qualified trust by an owner-employee who controls, or a 
member of a group of owner-employees who together control, the trade or 
business with respect to which the plan is established, or a 
contribution of property, other than money, to a qualified trust by a 
member of such an owner-employee's family (as defined in section 
267(c)(4)), is a prohibited transaction. (See section 503(g) prior to 
its repeal by section 2003(b)(5) of the Employee Retirement Income 
Security Act of 1974 (88 Stat. 978)).
    (3) See section 4975 and the regulations thereunder with respect to 
rules relating to the contribution of property, other than money, made 
after December 31, 1974.
    (l) Controlled trades or businesses-- (1) Plans covering an owner-
employee who controls another trade or business. (i) A plan must not 
cover any owner-employee, or group of two or more owner-employees, if 
such owner-employee, or group of owner-employees, control (within the 
meaning of subparagraph (3) of this paragraph) any other trade or 
business, unless the employees of such other trade or business 
controlled by such owner-employee, or such group of owner-employees, are 
included in a plan which satisfies the requirements of section 401(a), 
including the qualification requirements of section 401(d). The 
employees who must be covered

[[Page 44]]

under the plan of the trade or business which is controlled include the 
self-employed individuals who are not owner-employees and the owner-
employees who consent to be covered by such plan. Accordingly, the 
employer must determine whether any owner-employee, or group of owner-
employees, who may participate in the plan which is established by such 
employer controls any other trade or business, and whether the 
requirements of this subparagraph are satisfied with respect to the plan 
established in such other trade or business. The plan of an employer may 
exclude an owner-employee who controls another trade or business from 
coverage under the plan even though such owner-employee consents to be 
covered, if a plan which satisfies the requirements of subdivision (ii) 
of this subparagraph has not been established in the trade or business 
which such owner-employee controls.
    (ii) The qualified plan which the owner-employee, or owner-
employees, are required to provide for the employees of the trade or 
business which they control must provide contributions and benefits 
which are not less favorable than the contributions and benefits 
provided for the owner-employee, or owner-employees, under the plan of 
any trade or business which they do not control. Thus, for example, if 
the contributions or benefits for the owner-employee under the plan of 
the trade or business which he does not control are computed on the 
basis of his total (as compared to basic or regular rate) of 
compensation, then the contributions or benefits for employees covered 
under the plan of the trade or business which the owner controls must be 
computed on the basis of their total compensation. However, the 
requirements of this subdivision cannot be satisfied if the benefits and 
contributions provided under the plan for the employees of the trade or 
business which is controlled are not comparable to those provided under 
the plan covering the owner-employee, or group of owner-employees, in 
the trade or business which they do not control. Thus, for example, if 
the owner-employee is covered by a pension plan in the trade or business 
which he does not control, he may not satisfy the requirements of this 
subdivision by establishing a profit-sharing plan in the trade or 
business which he does control.
    (iii) If an individual is covered as an owner-employee under the 
plans of two or more trades or businesses which he does not control and 
such individual controls a trade or business, then the contributions or 
benefits of the employees under the plan of the trade or business which 
he does control must be as favorable as those provided for him under the 
most favorable plan of the trade or business which he does not control.
    (2) Owner-employees who control more than one trade or business. If 
the plan provides contributions or benefits for an owner-employee who 
controls, or group of owner-employees who together control, the trade or 
business with respect to which the plan is established, and such owner-
employee, or group of owner-employees, also control as owner-employees 
one or more other trades or businesses, plans must be established with 
respect to such controlled trades or businesses so that when taken 
together they form a single plan which satisfies the requirements of 
section 401 (a) and (d) with respect to the employees of all the 
controlled trades or businesses.
    (3) Control defined. (i) For purposes of this paragraph, an owner-
employee, or a group of two or more owner-employees, shall be considered 
to control a trade or business if such owner-employee, or such group of 
two or more owner-employees together--
    (A) Own the entire interest in an unincorporated trade or business, 
or
    (B) In the case of a partnership, own more than 50 percent of either 
the capital interest or the profits interest in such partnership.

In determining whether an owner-employee, or group of owner-employees, 
control a trade or business within the meaning of the preceding 
sentence, it is immaterial whether or not such individuals could be 
covered under a plan established with respect to the trade or business. 
For example, if an individual who is an owner-employee has a 60-percent 
capital interest in another trade or business, such individual controls 
such trade or business and the provisions of this paragraph apply even

[[Page 45]]

though the individual derives no earned income, as defined in section 
401(c)(2), from the controlled trade or business. For purposes of 
determining the ownership interest of an owner-employee, or group of 
owner-employees, an owner-employee, or group of owner-employees, is 
treated as owning any interest in a partnership which is owned, directly 
or indirectly, by a partnership controlled by such owner-employee, or 
group of owner-employees.
    (ii) The provisions of subparagraphs (1) and (2) of this paragraph 
apply only if the owner-employee who controls, or the group of owner-
employees who control, a trade or business, or trades or businesses, 
within the meaning of subdivision (i) of this subparagraph is the same 
owner-employee, or group of owner-employees, covered under the plan 
intended to satisfy the requirements for qualification. Thus, for 
example, if A is a 50-percent partner in both the AB and AC partnership, 
and if the AB partnership wishes to establish a plan covering A and B, 
the provisions of subparagraphs (1) and (2) of this paragraph do not 
apply, since A does not control either partnership, and since B has no 
interest in the AC partnership.
    (m) Distribution of benefits. (1)(i) Section 401(d)(4)(B) requires 
that a qualified plan which provides contributions or benefits for any 
owner-employee must not provide for the payment of benefits to such 
owner-employee at any time before he has attained age 59\1/2\. An 
exception to the foregoing rule permits a qualified plan to provide for 
the distribution of benefits to an owner-employee prior to the time he 
attains age 59\1/2\ if he is disabled. For taxable years beginning after 
December 31, 1966, see section 72(m)(7) and paragraph (f) of Sec. 1.72-
17 for the meaning of disabled. For taxable years beginning before 
January 1, 1967, see section 213(g)(3) for the meaning of disabled. In 
general, both sections 72(m)(7) and 213(g)(3) provide that an individual 
is considered disabled if he is unable to engage in any substantial 
gainful activity because of a medically determinable physical or mental 
impairment which can be expected to result in death or to be of long-
continued and indefinite duration. In addition, section 401(d)(4)(B) 
does not preclude the distribution of benefits to the estate or other 
beneficiary of a deceased owner-employee prior to the time the owner-
employee would have attained age 59\1/2\ if he had lived.
    (ii) A qualified plan must provide that if, despite the restrictions 
in the plan to the contrary, an amount is prematurely distributed, or 
made available, to a participant in such plan who is, or has been, an 
owner-employee, then no contribution shall be made under the plan by, or 
for, such individual during any of the 5 taxable years of the plan 
beginning after the distribution is made.
    (2)(i) The provisions of subparagraph (1) of this paragraph preclude 
an owner-employee who is a participant in a qualified pension or profit-
sharing plan of his employer from withdrawing any part of the funds 
accumulated on his behalf except as provided in such subparagraph (1). 
However, the distribution of an owner-employee's interest, or any 
portion of such interest, after he attains age 59\1/2\ is determined by 
the provisions of the plan. Thus, for example, if a qualified pension 
plan provides that the normal retirement age under the plan is age 65, 
an owner-employee would not be entitled to a distribution of an amount 
under the plan merely because he attained age 59\1/2\.
    (ii) The provisions of subparagraph (1) of this paragraph do not 
preclude the establishment of a profit-sharing plan which provides for 
the distribution of all, or part, of participants' accounts after a 
fixed number of years. However, such a plan must not permit a 
distribution of any amount to any owner-employee prior to the time the 
owner-employee has attained age 59\1/2\ or becomes disabled within the 
meaning of section 72(m)(7) or section 213(g)(3), whichever is 
applicable. On the other hand, if a distribution would have been made 
under the plan to an owner-employee but for the fact that he had not 
attained age 59\1/2\, then the amount of such distribution (including 
any increment earned on such amount) must be distributed to such owner-
employee at such time as he attains age 59\1/2\.

[[Page 46]]

    (3) A qualified pension, annuity, or profit-sharing plan which 
covers an owner-employee must provide that the distribution of an owner-
employee's entire interest under the plan must begin prior to the end of 
the taxable year in which he attains the age of 70\1/2\, and such 
distribution must satisfy the requirements of section 401(a)(9) and 
paragraph (e) of Sec. 1.401-11. Furthermore, section 401(d)(7) provides 
that, if an owner-employee dies prior to the time his entire interest 
has been distributed to him, such owner-employee's entire remaining 
interest under the plan must, in general, either be distributed to his 
beneficiary, or beneficiaries, within 5 years, or be used within that 
period to purchase an immediate annuity for his beneficiary, or 
beneficiaries. However, a distribution within 5 years of the death of 
the owner-employee is not required if the distribution of his interest 
has commenced and such distribution is for a term certain over a period 
not extending beyond the joint life and survivor expectancy of the 
owner-employee and his spouse. Thus, for example, an annuity for the 
joint life and survivor expectancy of an owner-employee and his spouse 
which guarantees payments for 10 years is a distribution which is 
payable over a period which does not exceed the joint life and survivor 
expectancy of the owner-employee and his spouse if such expectancy is at 
least 10 years at the time the distribution first commences.

[T.D. 6675, 28 FR 10126, Sept. 17, 1963, as amended by T.D. 6982, 33 FR 
16500, Nov. 13, 1968; T.D. 6985, 33 FR 19815, Dec. 27, 1968; T.D. 7428, 
41 FR 34619, Aug. 16, 1976; T.D. 7611, 44 FR 23520, Apr. 20, 1979; T.D. 
8635, 60 FR 65549, Dec. 20, 1995]



Sec. 1.401-13   Excess contributions on behalf of owner-employees.

    (a) Introduction. (1) The provisions of this section prescribe the 
rules relating to the treatment of excess contributions made under a 
qualified pension, annuity, or profit-sharing plan on behalf of a self-
employed individual who is an owner-employee (as defined in paragraph 
(d) of Sec. 1.401-10). Paragraph (b) of this section defines the term 
``excess contribution''. Paragraph (c) of this section describes an 
exception to the definition of an excess contribution in the case of 
contributions which are applied to pay premiums on certain annuity, 
endowment, or life insurance contracts. Paragraph (d) of this section 
describes the effect of making an excess contribution which is not 
determined to have been willfully made, and paragraph (e) of this 
section describes the effect of making an excess contribution which is 
determined to have been willfully made.
    (2) Under section 401(c)(1), certain self-employed individuals are 
treated as employees for purposes of section 401. In addition, under 
section 401(c)(4), a proprietor is treated as his own employer, and the 
partnership is treated as the employer of the partners. Under section 
404, certain contributions on behalf of a self-employed individual are 
treated as deductible and taken into consideration in determining the 
amount allowed as a deduction under section 404(a). Such contributions 
are treated under section 401 and the regulations thereunder as employer 
contributions on behalf of the self-employed individual. However, in 
some cases, additional contributions may be made on behalf of a self-
employed individual. Such contributions are not taken into consideration 
in determining the amount deductible under section 404 and are not taken 
into consideration in computing the amount allowed as a deduction under 
section 404(a). For purposes of section 401 and the regulations 
thereunder, such contributions are treated as employee contributions by 
the self-employed individual. If a self-employed individual is an owner-
employee within the meaning of section 401(c)(3) and paragraph (d) of 
Sec. 1.401-10, then this section prescribes the rules applicable if 
contributions are made in excess of those permitted to be made under 
section 401.
    (b) Excess contributions defined. (1)(i) Except as provided in 
paragraph (c) relating to contributions which are applied to pay 
premiums on certain annuity, endowment, or life insurance contracts, an 
excess contribution is any amount described in subparagraphs (2) through 
(4) of this paragraph.
    (ii) For purposes of determining if the amount of any contribution 
made under the plan on behalf of an owner-

[[Page 47]]

employee is an excess contribution, the amount of any contribution made 
under the plan which is allocable to the purchase of life, accident, 
health, or other insurance is not taken into account. The amount of any 
contribution which is allocable to the cost of insurance protection is 
determined in accordance with the provisions of paragraph (f) of 
Sec. 1.404 (e)-1 and paragraph (b) of Sec. 1.72-16.
    (2)(i) In the case of a taxable year of the plan for which employer 
contributions are made on behalf of only owner-employees, an excess 
contribution is the amount of any contribution for such taxable year on 
behalf of such owner-employee which is not deductible under section 404 
(determined without regard to section 404(a)(10)). This rule applies 
irrespective of whether the plan provides for contributions on behalf of 
common-law employees, or self-employed individuals who are not owner-
employees, when such employees or individuals become eligible for 
coverage under the plan, and irrespective of whether contributions are 
in fact made for such employees or such individuals for other taxable 
years of the plan.
    (ii) In the case of a taxable year of the plan for which employer 
contributions are made on behalf of both owner-employees and either 
common-law employees or self-employed individuals who are not owner-
employees, an excess contribution is the amount of any employer 
contribution on behalf of any owner-employee for such taxable year which 
exceeds the amount deductible under section 404 (determined without 
regard to section 404(a)(10)) unless such amount may be treated as an 
employee contribution under the plan in accordance with the rules of 
paragraph (d)(3) of Sec. 1.401-11 and is a permissible employee 
contribution under subparagraph (3) of this paragraph.
    (3)(i) In the case of a taxable year of the plan for which employer 
contributions are made on behalf of both an owner-employee and either 
common-law employees or self-employed individuals who are not owner-
employees, employee contributions on behalf of an owner-employee may be 
made for such taxable year of the plan. How-ever, the amount of such 
contributions, if any, which is described in subdivisions (ii), (iii), 
or (iv) of this subparagraph is an excess contribution.
    (ii) An excess contribution is the amount of any employee 
contribution made on behalf of any owner-employee during a taxable year 
of the plan at a rate in excess of the rate of contributions which may 
be made as employee contributions by common-law employees, or by self-
employed individuals who are not owner-employees, during such taxable 
year of the plan.
    (iii) An excess contribution is the amount of any employee 
contribution made on behalf of an owner-employee which exceeds the 
lesser of $2,500 or 10 percent of the earned income (as defined in 
paragraph (c) of Sec. 1.401-10) of such owner-employee for his taxable 
year in which such contributions are made.
    (iv) In the case of a taxable year of an owner-employee in which 
contributions are made on behalf of such owner-employee under more than 
one plan, an excess contribution is the amount of any employee 
contribution made on behalf of such owner-employee under all such plans 
during such taxable year which exceeds $2,500. If such an excess 
contribution is made, the amount of the excess contribution made on 
behalf of the owner-employee with respect to any one of such plans is 
the amount by which the employee contribution on his behalf under such 
plan for the year exceeds an amount which bears the same ratio to $2,500 
as the earned income of the owner-employee derived from the trade or 
business with respect to which the plan is established bears to his 
earned income derived from the trades or businesses with respect to 
which all such plans are established.
    (4) An excess contribution is the amount of any contribution on 
behalf of an owner-employee for any taxable year of the plan with 
respect to which the plan is treated, under section 401(e)(2), as not 
meeting the requirements of section 401(d) with respect to such owner-
employee.
    (c) Contributions for premiums on certain annuity, endowment, or 
life insurance contracts. (1) The term ``excess contribution'' does not 
include the amount of any employer contributions on behalf of an owner-
employee which,

[[Page 48]]

under the provisions of the plan, is expressly required to be applied 
(either directly or through a trustee) to pay the premiums or other 
consideration for one or more annuity, endowment, or life insurance 
contracts, if--
    (i) The employer contributions so applied meet the requirements of 
subparagraphs (2) through (4) of this paragraph, and
    (ii) The total employer contributions required to be applied 
annually to pay premiums on behalf of any owner-employee for contracts 
described in this paragraph do not exceed $2,500. For purposes of 
computing such $2,500 limit, the total employer contributions includes 
amounts which are allocable to the purchase of life, accident, health, 
or other insurance.
    (2)(i) The employer contributions must be paid under a plan which 
satisfies all the requirements for qualification. Accordingly, for 
example, contributions can be paid under the plan for life insurance 
protection only to the extent otherwise permitted under sections 401 
through 404 and the regulations thereunder. However, certain of the 
requirements for qualification are modified with respect to a plan 
described in this paragraph (see section 401(a)(10)(A)(ii) and (d)(5)).
    (ii) A plan described in this paragraph is not disqualified merely 
because a contribution is made on behalf of an owner-employee by his 
employer during a taxable year of the employer for which the owner-
employee has no earned income. On the other hand, a plan will fail to 
qualify if a contribution is made on behalf of an owner-employee which 
results in the discrimination prohibited by section 401(a)(4) as 
modified by section 401(a)(10)(A)(ii) (see paragraph (f)(3) of 
Sec. 1.401-12).
    (3) The employer contributions must be applied to pay premiums or 
other consideration for a contract issued on the life of the owner-
employee. For purposes of this subparagraph, a contract is not issued on 
the life of an owner-employee unless all the proceeds which are, or may 
become, payable under the contract are payable directly, or through a 
trustee of a trust described in section 401(a) and exempt from tax under 
section 501(a), to the owner-employee or to the beneficiary named in the 
contract or under the plan. Accordingly, for example, a nontransferable 
face-amount certificate (as defined in section 401(g) and the 
regulations thereunder) is considered an annuity on the life of the 
owner-employee if the proceeds of such contract are payable only to the 
owner-employee or his beneficiary.
    (4)(i) For any taxable year of the employer, the amount of 
contributions by the employer on behalf of the owner-employee which is 
applied to pay premiums under the contracts described in this paragraph 
must not exceed the average of the amounts deductible under section 404 
(determined without regard to section 404(a)(10)) by such employer on 
behalf of such owner-employee for the most recent three taxable years of 
the employer (ending prior to the date the latest contract was entered 
into or modified to provide additional benefits), in which the owner-
employee derived earned income from the trade or business with respect 
to which the plan is established. However, if such owner-employee has 
not derived earned income for at least three taxable years preceding 
such date, then, in determining the ``average of the amounts 
deductible'', only so many of such taxable years as such owner-employee 
was engaged in such trade or business and derived earned income 
therefrom are taken into account.
    (ii) For the purpose of making the computation described in 
subdivision (i) of this subparagraph, the taxable years taken into 
account include those years in which the individual derived earned 
income from the trade or business but was not an owner-employee with 
respect to such trade or business. Furthermore, taxable years of the 
employer preceding the taxable year in which a qualified plan is 
established are taken into account. If such taxable years began prior to 
January 1, 1963, the amount deductible is determined as if section 404 
included section 404(a) (8), (9), (10), and (e).
    (5) The amount of any employer contribution which is not deductible 
but which is not treated as an excess contribution because of the 
provisions of this paragraph shall be taken into account as an employee 
contribution made on behalf of the owner-employee

[[Page 49]]

during the owner-employee's taxable year with, or within which, the 
taxable year of the person treated as his employer under section 
401(c)(4) ends. However, such contribution is only treated as an 
employee contribution made on behalf of the owner-employee for the 
purpose of determining whether any other employee contribution made on 
behalf of the owner-employee during such period is an excess 
contribution described in paragraph (b)(3) of this section.
    (d) Effect of an excess contribution which is not willfully made. 
(1) If an excess contribution (as defined in paragraph (b) of this 
section) is made on behalf of an owner-employee, and if such 
contribution is not willfully made, then the provisions of this 
paragraph describe the effect of such an excess contribution. However, 
if the excess contribution made on behalf of an owner-employee is 
determined to have been willfully made, then the provisions of paragraph 
(e) of this section are applicable to such contribution.
    (2)(i) This paragraph does not apply to an excess contribution if 
the net amount of such excess contribution (as defined in subparagraph 
(4) of this paragraph) and the net income attributable to such amount 
are repaid to the owner-employee on whose behalf the excess contribution 
was made at any time before the end of six months beginning on the day 
on which the district director sends notice (by certified or registered 
mail) of the amount of the excess contribution to the trust, insurance 
company, or other person to whom such excess contribution was paid. The 
net income attributable to the net amount of the excess contribution is 
the aggregate of the amounts of net income attributable to the net 
amount of the excess contribution for each year of the plan beginning 
with the taxable year of the plan within which the excess contribution 
is made and ending with the close of the taxable year of the plan 
immediately preceding the taxable year of the plan in which the net 
amount of the excess contribution is repaid. The amount of net income 
attributable to the net amount of the excess contribution for each year 
is the amount of net income earned under the plan during the year which 
is allocated in a reasonable manner to the net amount of the excess 
contribution. For example, the amount of net income earned under the 
plan for the year which is attributable to the net amount of an excess 
contribution can be computed as the amount which bears the same ratio to 
the amount of the ``net income attributable to the interest of the 
owner-employee under the plan'' for such taxable year (determined in 
accordance with the provisions of subparagraph (5)(ii) of this 
paragraph) as the net amount of the excess contribution bears to the 
aggregate amount standing to the account of the owner-employee at the 
end of that year (including the net amount of any excess contribution).
    (ii) The notice described in subdivision (i) of this subparagraph 
shall not be mailed prior to the time that the amount of the tax under 
chapter 1 of the Code of the owner-employee to whom the excess 
contribution is to be repaid has been finally determined for his taxable 
year in which such excess contribution was made. For purposes of this 
subdivision, a final determination of the amount of tax liability of the 
owner-employee includes--
    (A)1 A decision by the Tax Court of the United States, or a 
judgment, decree, or other order by any court of competent jurisdiction, 
which has become final;
    (B) A closing agreement authorized by section 7121; or
    (C) The expiration of the period of limitation on suits by the 
taxpayer for refund, unless suit is instituted prior to the expiration 
of such period.
    (iii) For purposes of this subparagraph, an amount is treated as 
repaid to an owner-employee if an adequate adjustment is made to the 
account of the owner-employee. An adequate adjustment is made to the 
account of an owner-employee, for example, if the amount of the excess 
contribution (without any reduction for any loading or other 
administrative charge) and the net income attributable to such amount is 
taken into account as a contribution under the plan for the current 
year. In such a case, the gross income of the owner-employee for his 
taxable year in which such adjustment is made includes the amount of the 
net

[[Page 50]]

income attributable to the excess contribution.
    (iv) If the net amount of the excess contribution and the net income 
attributable thereto is repaid, within the period described in 
subdivision (i) of this subparagraph, to the owner-employee on whose 
behalf such contribution was made, then the net income attributable to 
the excess contribution is, pursuant to section 61(a), includible in the 
gross income of the owner-employee for his taxable year in which such 
amount is distributed, or made available, to him. However, such amount 
is not a distribution to which section 402 or 403 and section 72 apply 
(see subparagraph (6) of this paragraph).
    (3)(i) If the net amount of any excess contribution (as defined in 
subparagraph (4) of this paragraph) and the net income attributable to 
that excess contribution are not repaid to the owner-employee on whose 
behalf the excess contribution was made before the end of the six-month 
period described in subparagraph (2)(i) of this paragraph, the plan 
under which the excess contribution has been made is considered, for 
purposes of section 404, as not satisfying the requirements for 
qualification with respect to such owner-employee for all taxable years 
of the plan described in subdivision (ii) of this subparagraph. However, 
such disqualification only applies to the interest of the owner-employee 
on whose behalf an excess contribution has been made and does not 
disqualify the plan with respect to the other participants thereunder.
    (ii) The taxable years referred to in subdivision (i) of this 
subparagraph include the taxable year of the plan within which the 
excess contribution is made and each succeeding taxable year of the plan 
until the beginning of the taxable year of the plan in which the trust, 
insurance company, or other person to whom such excess contribution was 
paid repays to such owner-employee--
    (A) The net amount of the excess contribution, and
    (B) The amount of income attributable to his interest under the plan 
which is includible in his gross income for any taxable year by reason 
of the provisions of subparagraph (5) of this paragraph.
    (4) For purposes of this paragraph, the net amount of an excess 
contribution is the amount of such excess contribution, as defined in 
paragraph (b) of this section, reduced by the amount of any loading 
charge or other administrative charge ratably allocable to such excess 
contribution.
    (5)(i) If a plan is considered as not meeting the requirements for 
qualification with respect to an owner-employee by reason of the 
provisions of subparagraph (3) of this paragraph for any taxable year of 
the plan, such owner-employee's gross income for any of his taxable 
years with or within which such taxable year of the plan ends shall, for 
purposes of chapter 1 of the Code, include the portion of the net income 
earned under the plan for such taxable year of the plan which is 
attributable to the interest of the owner-employee under the plan.
    (ii) For purposes of this subparagraph, the term ``net income'' 
means the net income earned under the plan determined in accordance with 
generally accepted accounting principles consistently applied, and the 
``net income attributable to the interest of the owner-employee under 
the plan'' is the amount which bears the same ratio to the aggregate 
amount of net income earned under the plan for the taxable year of the 
plan as the amount standing to the account of the owner-employee at the 
end of that year (including the amount of any excess contribution which 
is credited to his account) bears to the aggregate amount of all funds 
under the plan for all employees at the end of that year (including the 
aggregate amount of excess contributions credited to the accounts of all 
owner-employees for that year).
    (iii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. A is an owner-employee covered under the X Employees' 
Pension Trust who files his return on the basis of a calendar year. An 
excess contribution was made on behalf of A during the plan year 
beginning on January 1, 1966. The net amount of the excess contribution 
and the net income attributable thereto was not repaid to A before the

[[Page 51]]

end of the six-month period described in subparagraph (2)(i) of this 
paragraph. Accordingly, the net income earned under the plan during 1966 
which is attributable to A's interest is to be included in his gross 
income for 1966. Assume that the trust which forms a part of the pension 
plan of the X Company also files its returns on a calendar year basis, 
and that during 1966 the trust had a gross income of $4,000 (including a 
long-term capital gain of $2,500) and expenses of $500. Assume, further, 
that the amount standing to A's account on December 31, 1966 (including 
the amount of the excess contribution), was $20,000, and that on that 
date the amount funded under the plan for all employees (including A) is 
$140,000. Then the net income of the trust for 1966 is $3,500 
($4,000-$500). The net income attributable to the interest of A under 
the plan is $500 (the amount which bears the same ratio to $3,500 as 
$20,000 bears to $140,000). Accordingly, $500 is included in A's gross 
income in accordance with the provisions of section 401(e)(2)(B) as the 
``net income attributable to the interest of the owner-employee under 
the plan''.

    (6) The provisions of section 402 or 403 and section 72 do not apply 
to any amount distributed, or made available, to an owner-employee which 
is described in this paragraph. Accordingly, for example, the provisions 
of section 72(m)(5)(A)(i), relating to amounts subject to the penalty 
tax imposed by section 72(m), do not apply to the amount of the net 
income attributable to the interest of an owner-employee (as defined in 
subparagraph (5)(ii) of this paragraph) which is includible in his gross 
income. Furthermore, in such a case, the provisions of section 
401(d)(5)(C) do not apply to such amount.
    (7) Certain adjustments will be required with respect to the 
interest of an owner-employee after any amount previously allocated to 
his account has been returned to him pursuant to the provisions of this 
paragraph. For example, if the determination of whether life insurance 
benefits provided under the plan are incidental is made, in part, with 
regard to the contributions allocated to the accounts of the 
participants covered under the plan, an adjustment may have to be made 
with respect to the life insurance purchased under the plan for any 
owner-employee after any amount previously allocated to his account has 
been repaid to him. Furthermore, if, for example, an owner-employee has 
received annuity payments which were taxable under the exclusion ratio 
rule of section 72, and if such exclusion ratio took into account any 
amount credited to the account of the owner-employee which is 
subsequently repaid to him, then such exclusion ratio must be recomputed 
after the adjustment in such owner-employee's account has taken place.
    (8) Notwithstanding any other provision of law, in any case in which 
the plan is treated as not satisfying the requirements for qualification 
with respect to any owner-employee by reason of the provisions of 
section 401(e), the period for assessing, with respect to such owner-
employee, any deficiency arising by reason of--
    (i) The disallowance of any deduction under section 404 by reason of 
the provisions of subparagraph (3) of this paragraph, or
    (ii) The inclusion of amounts in the gross income of the owner-
employee by reason of the provisions of subparagraph (5) of this 
paragraph,

shall not expire prior to 18 months after the day the district director 
mails the notice with respect to the excess contribution (described in 
subparagraph (2)(i) of this paragraph) which gives rise to such 
disallowance or inclusion. Thus, for example, notwithstanding the 
provisions of section 6212(c) (relating to the restriction on the 
determination of additional deficiencies), if, after a final 
determination by the Tax Court of the income tax liability of an owner-
employee for a taxable year in which an excess contribution was made, 
the amount of such excess contribution and the net income attributable 
thereto is not paid to the owner-employee before the end of the six-
month period described in subparagraph (2)(i) of this paragraph, an 
additional deficiency assessment may be made for such taxable year with 
respect to such excess contribution.
    (e) Effect of an excess contribution which is determined to have 
been willfully made. If an excess contribution (as defined in paragraph 
(b) of this section) on behalf of an owner-employee is determined to 
have been willful ly made, then--
    (1) Only the provisions of this paragraph apply to such 
contribution;

[[Page 52]]

    (2) There shall be distributed to the owner-employee on whose behalf 
such contribution was willfully made his entire interest in all plans in 
which he is a participant as an owner-employee;
    (3) The amount distributed under each such plan is an amount to 
which section 72 does apply (see section 72(m)(5)(A)(iii)); and
    (4) For purposes of section 404, no plan in which such individual is 
covered as an owner-employee shall be considered as meeting the 
requirements for qualification with respect to such owner-employee for 
any taxable year of the plan beginning with or within the calendar year 
in which it is determined that the excess contribution has been 
willfully made and with or within the five calendar years following such 
year.
    (f) Years to which this section applies. This section applies to 
contributions made in taxable years of employers beginning before 
January 1, 1976. Thus, for example, in the case of willful contributions 
made in taxable years of employers beginning before January 1, 1976, 
paragraphs (e) (1), (2), and (3) of this section apply to such taxable 
years beginning on or after such date. However, in such a case, because 
the application of paragraph (e)(4) of this section affects 
contributions made in taxable years of employers beginning on or after 
January 1, 1976, paragraph (e)(4) of this section does not apply to such 
taxable years; see paragraph (c) of Sec. 1.401(e)-4 (relating to 
transitional rules for excess contributions).

[T.D. 6676, 28 FR 10139, Sept. 17, 1963; as amended by T.D. 7636, 44 FR 
47053, Aug. 10, 1979]



Sec. 1.401-14   Inclusion of medical benefits for retired employees in qualified pension or annuity plans.

    (a) Introduction. Under section 401(h) a qualified pension or 
annuity plan may make provision for the payment of sickness, accident, 
hospitalization, and medical expenses for retired employees, their 
spouses, and their dependents. The term ``medical benefits described in 
section 401(h)'' is used in this section to describe such payments.
    (b) In general--(1) Coverage. Under section 401(h), a qualified 
pension or annuity plan may provide for the payment of medical benefits 
described in section 401(h) only for retired employees, their spouses, 
or their dependents. To be ``retired'' for purposes of eligibility to 
receive medical benefits described in section 401(h), an employee must 
be eligible to receive retirement benefits provided under the pension 
plan, or else be retired by an employer providing such medical benefits 
by reason of permanent disability. For purposes of the preceding 
sentence, an employee is not considered to be eligible to receive 
retirement benefits provided under the plan if he is still employed by 
the employer and a separation from employment is a condition to 
receiving the retirement benefits.
    (2) Discrimination. A plan which provides medical benefits described 
in section 401(h) must not discriminate in favor of officers, 
shareholders, supervisory employees, or highly compensated employees 
with respect to coverage and with respect to the contributions or 
benefits under the plan. The determination of whether such a plan so 
discriminates is made with reference to the retirement portion of the 
plan as well as the portion providing the medical benefits described in 
section 401(h). Thus, for example, a plan will not be qualified under 
section 401 if it discriminates in favor of employees who are officers 
or shareholders with respect to either portion of the plan.
    (3) Funding medical benefits. Contributions to provide the medical 
benefits described in section 401(h) may be made either on a 
contributory or noncontributory basis, without regard to whether the 
contributions to fund the retirement benefits are made on a similar 
basis. Thus, for example, the contributions to fund the medical benefits 
described in section 401(h) may be provided for entirely out of employer 
contributions even though the retirement benefits under the plan are 
determined on the basis of both employer and employee contributions.
    (4) Definitions. For purposes of section 401(h) and this section:
    (i) The term dependent shall have the same meaning as that assigned 
to it by section 152, and

[[Page 53]]

    (ii) The term medical expense means expenses for medical care as 
defined in section 213(e)(1).
    (c) Requirements. The requirements which must be met for a qualified 
pension or annuity plan to provide medical benefits described in section 
401(h) are set forth in subparagraphs (1) through (5) of this paragraph.
    (1) Benefits. (i) The plan must specify the medical benefits 
described in section 401(h) which will be available and must contain 
provisions for determining the amount which will be paid. Such benefits, 
when added to any life insurance protection provided for under the plan, 
must be subordinate to the retirement benefits provided by such plan. 
For purposes of this section, life insurance protection includes any 
benefit paid under the plan on behalf of an employee-participant as a 
result of the employee-participant's death to the extent such payment 
exceeds the amount of the reserve to provide the retirement benefits for 
the employee-participant existing at his death. The medical benefits 
described in section 401(h) are considered subordinate to the retirement 
benefits if at all times the aggregate of contributions (made after the 
date on which the plan first includes such medical benefits) to provide 
such medical benefits and any life insurance protection does not exceed 
25 percent of the aggregate contributions (made after such date) other 
than contributions to fund past service credits.
    (ii) The meaning of the term subordinate may be illustrated by the 
following example:

    Example. The X Corporation amends its qualified pension plan to 
provide medical benefits described in section 401(h) effective for the 
taxable year 1964. The total contributions under the plan (excluding 
those for past service credits) for the taxable year 1964 are $125,000, 
allocated as follows: $100,000 for retirement benefits, $10,000 for life 
insurance protection, and $15,000 for medical benefits described in 
section 401(h). The medical benefits described in section 401(h) are 
considered subordinate to the retirement benefits since the portion of 
the contributions allocated to the medical benefits described in section 
401(h) ($15,000) and to life insurance protection after such medical 
benefits were included in the plan ($10,000), or $25,000, does not 
exceed 25 percent of $125,000. For the taxable year 1965, the X 
Corporation contributes $140,000 (exclusive of contributions for past 
service credits) allocated as follows: $100,000 for retirement benefits, 
$10,000 for life insurance protection, and $30,000 for medical benefits 
described in section 401(h). The medical benefits described in section 
401(h) are considered subordinate to the retirement benefits since the 
aggregate contributions allocated to the medical benefits described in 
section 401(h) ($45,000) and to life insurance protection after such 
medical benefits were included in the plan ($20,000) or $65,000 does not 
exceed 25 percent of $265,000, the aggregate of the contributions made 
in 1964 and 1965.

    (2) Separate accounts. Where medical benefits described in section 
401(h) are provided for under a qualified pension or annuity plan, a 
separate account must be maintained with respect to contributions to 
fund such benefits. The separation required by this section is for 
recordkeeping purposes only. Consequently, the funds in the medical 
benefits account need not be separately invested. They may be invested 
with funds set aside for retirement purposes without identification of 
which investment properties are allocable to each account. However, 
where the investment properties are not allocated to each account, the 
earnings on such properties must be allocated to each account in a 
reasonable manner.
    (3) Reasonable and ascertainable. Section 401(h) further requires 
that amounts contributed to fund medical benefits therein described must 
be reasonable and ascertainable. For the rules relating to the deduction 
of such contributions, see paragraph (f) of Sec. 1.404(a)-3. The 
employer must, at the time he makes a contribution, designate that 
portion of such contribution allocable to the funding of medical 
benefits.
    (4) Impossibility of diversion prior to satisfaction of all 
liabilities. Section 401(h) further requires that it must be impossible, 
at any time prior to the satisfaction of all liabilities under the plan 
to provide for the payment of medical benefits described in section 
401(h), for any part of the corpus or income of the medical benefits 
account to be (within the taxable year or thereafter) used for, or 
diverted to, any purpose other than the providing of such benefits. 
Consequently, a plan which, for example, under its terms, permits funds 
in the medical benefits account

[[Page 54]]

to be used for any retirement benefit provided under the plan does not 
satisfy the requirements of section 401(h) and will not qualify under 
section 401(a). However, the payment of any necessary or appropriate 
expenses attributable to the administration of the medical benefits 
account does not affect the qualification of the plan.
    (5) Reversion upon satisfaction of all liabilities. The plan must 
provide that any amounts which are contributed to fund medical benefits 
described in section 401(h) and which remain in the medical benefits 
account upon the satisfaction of all liabilities arising out of the 
operation of the medical benefits portion of the plan are to be returned 
to the employer.
    (6) Forfeitures. The plan must expressly provide that in the event 
an individual's interest in the medical benefits account is forfeited 
prior to termination of the plan an amount equal to the amount of the 
forfeiture must be applied as soon as possible to reduce employer 
contributions to fund the medical benefits described in section 401(h).
    (d) Effective date. This section applies to taxable years of a 
qualified pension or annuity plan beginning after October 23, 1962.

[T.D. 6722, 29 FR 5072, Apr. 14, 1964]



Sec. 1.401(a)-1  Post-ERISA qualified plans and qualified trusts; In general.

    (a) Introduction--(1) In general. This section and the following 
regulation sections under section 401 reflect the provisions of section 
401 after amendment by the Employee Retirement Income Security Act of 
1974 (Pub. L. 93-406) (``ERISA'').
    (2)  [Reserved]
    (b) Requirements for pension plans--(1) Definitely determinable 
benefits. (i) In order for a pension plan to be a qualified plan under 
section 401(a), the plan must be established and maintained by an 
employer primarily to provide systematically for the payment of 
definitely determinable benefits to its employees over a period of 
years, usually for life, after retirement.
    (ii) Section 1.401-1(b)(1)(i), a pre-ERISA regulation, provides 
rules applicable to this requirement, and that regulation is applicable 
except as otherwise provided.
    (iii) The use of the type of plan provision described in Sec. 1.415-
1(d)(1) which automatically freezes or reduces the rate of benefit 
accrual or the annual addition to insure that the limitations of section 
415 will not be exceeded, will not be considered to violate the 
requirements of this subparagraph provided that the operation of such 
provision precludes discretion by the employer.

[T.D. 7748, 46 FR 1695, Jan. 7, 1981]



Sec. 1.401(a)-2  Impossibility of diversion under qualified plan or trust.

    (a) General rule. Section 401(a)(2) requires that in order for a 
trust to be qualified, it must be impossible under the trust instrument 
(in the taxable year and at any time thereafter before the satisfaction 
of all liabilities to employees or their beneficiaries covered by the 
trust) for any part of the trust corpus or income to be used for, or 
diverted to, purposes other than for the exclusive benefit of those 
employees or their beneficiaries. Section 1.401-2, a pre-ERISA 
regulation, provides rules under section 401(a)(2) and that regulation 
is applicable except as otherwise provided.
    (b) Section 415 suspense account. Paragraph (a) of this section does 
not apply to amounts properly allocated to a suspense account pursuant 
to Sec. 1.415-6(b)(6). The plan, or the trust forming part of the plan, 
may provide for the reversion to the employer, upon termination of the 
plan, of amounts held in the suspense account.

[T.D. 7748, 46 FR 1696, Jan. 7, 1981]



Sec. 1.401(a)-4  Optional forms of benefit (before 1994).

    Q-1: How does section 401(a)(4) apply to optional forms of benefits?
    A-1: (a) In general.--(1) Scope. The nondiscrimination requirements 
of section 401(a)(4) apply to the amount of contributions or benefits, 
optional forms of benefit, and other benefits, rights and features 
(e.g., actuarial assumptions, methods of benefit calculation, loans, 
social security supplements, and disability benefits) under a

[[Page 55]]

plan. This section addresses the application of section 401(a)(4) only 
to optional forms of benefit under a plan. Generally, the determination 
of whether an optional form is nondiscriminatory under section 401(a)(4) 
is made by reference to the availability of such optional form, and not 
by reference to the utilization or actual receipt of such optional form. 
See Q&A-2 of this section. Even though an optional form of benefit under 
a plan may be nondiscriminatory under section 401(a)(4) and this 
Sec. 1.401(a)-4 because the availability of such optional form does not 
impermissibly favor employees in the highly compensated group, such plan 
may fail to satisfy section 401(a)(4) with respect to the amount of 
contributions or benefits or with respect to other benefits, rights and 
features if, for example, the method of calculation or the amount or 
value of benefits payable under such optional form impermissibly favors 
the highly compensated group. See Sec. 1.411(d)-4, Q&A-1 for the 
definition of ``optional form of benefit.''
    (2) Nondiscrimination requirements. Each optional form of benefit 
provided under a plan is subject to the nondiscrimination requirement of 
section 401(a)(4) and thus the availability of each optional form of 
benefit must not discriminate in favor of the employees described in 
section 401(a)(4) in whose favor discrimination is prohibited (the 
``highly compensated group''). See paragraph (b) of this Q&A-1 for a 
description of the employees included in such group. This is true 
without regard to whether a particular optional form of benefit is the 
actuarial equivalent of any other optional form of benefit under the 
plan. Thus, for example, a plan may not condition, or otherwise limit, 
the availability of a single sum distribution of an employee's benefit 
in a manner that impermissibly favors the highly compensated group.
    (b) Highly compensated group. For plan years commencing prior to the 
applicable effective date for the amendment made to section 401(a)(4) by 
section 1114 of the Tax Reform Act of 1986 (TRA '86), the highly 
compensated group consists of those employees who are officers, 
shareholders, or highly compensated. For plan years beginning on or 
after the applicable effective date of the amendments to section 
401(a)(4) made by TRA '86, the highly compensated group consists of 
those employees who are highly compensated within the meaning of section 
414(q). The amendment to section 401(a)(4) made by section 1114 of TRA 
'86 is generally effective for plan years commencing after December 31, 
1988. See section 1114(a) of TRA '86.
    Q-2: How is it determined whether an optional form of benefit 
satisfies the nondiscrimination requirements of section 401(a)(4)?
    A-2: (a) Nondiscrimination requirement.--(1) In general. An optional 
form of benefit under a plan is nondiscriminatory under section 
401(a)(4) only if the requirements of paragraphs (a)(2) and (a)(3) of 
this Q&A-2 are satisfied with respect to such optional form. The 
determination of whether an optional form of benefit satisfies these 
requirements is made by reference to the availability of the optional 
form, and not by reference to the utilization or actual receipt of such 
optional form. Thus, an optional form of benefit that satisfies the 
requirements of paragraphs (a)(2) and (a)(3) of this Q&A-2 is 
nondiscriminatory under section 401(a)(2) even though the highly 
compensated group disproportionately utilizes such optional form. 
However, the composition of the group of employees who actually receive 
benefits in an optional form may be relevant in determining whether such 
optional form satisfies the requirement of paragraph (a)(3) of this Q&A-
2 with respect to effective availability.
    (2) Current availability--(i) Plan years prior to TRA '86 effective 
date. Except as provided in paragraph (a)(2)(iii) of this Q&A-2, for 
plan years prior to the effective date of the amendments made to section 
401(b) by section 1112(a) of TRA '86, the requirement of this paragraph 
(a)(2) is satisfied only if the group of employees to whom the optional 
form is currently available satisfies either the seventy percent test of 
section 410(b)(1)(A) or the nondiscriminatory classification test of 
section 410(b)(1)(B).
    (ii) Plan years commencing on or after TRA '86 effective date. 
Except as provided in paragraph (a)(2)(iii) of this

[[Page 56]]

Q&A-2, for plan years commencing on or after the effective date on which 
the amendments made to section 410(b) by section 1112(a) of TRA '86 
first apply to a plan, the requirement of this paragraph (a)(2) is 
satisfied only if the group of employees to whom the optional form is 
currently available satisfies either the percentage test set forth in 
section 410(b)(1)(A), the ratio test set forth in section 410(b)(1)(B), 
or the nondiscriminatory classification test set forth in section 
410(b)(2)(A)(i). The employer need not satisfy the average benefit 
percentage test in section 410(b)(2)(A)(ii) in order for the optional 
form to be currently available to a nondiscriminatory group of 
employees.
    (iii) Special rule for certain governmental or church plans. Plans 
described in section 410(c) will be treated as satisfying the current 
availability test of this paragraph (a)(2) if the group of employees 
with respect to whom the optional form is currently available satisfies 
the requirements of section 401(a)(3) as in effect on September 1, 1974.
    (iv) Effective data for TRA '86 amendments to section 410(b). The 
amendments to section 410(b) made by section 1112(a) of TRA '86 are 
generally effective for plan years commencing after December 31, 1988. 
See section 1112(e)(1) of TRA '86.
    (v) Elimination of optional forms--(A) In general. Notwithstanding 
paragraphs (a)(2)(i) and (a)(2)(ii) of this Q&A-2, in the case of an 
optional form of benefit that has been eliminated under a plan with 
respect to specified employees for benefits accrued after the later of 
the eliminating amendment's adoption date or effective date, the 
determination of whether such optional form satisfies this paragraph 
(a)(2) with respect to such employees is to be made immediately prior to 
the elimination. Accordingly, if, as of the later of the adoption date 
or effective date of an amendment eliminating an optional form with 
respect to future benefit accruals, the current availability of such 
optional form immediately prior to such amendment satisfies this 
paragraph (a)(2), then the optional form will be treated as satisfying 
this paragraph (a)(2) for all subsequent years.

    (B) Example. A profit-sharing plan that provides for a single sum 
distribution available to all employees on termination of employment is 
amended January 1, 1990, to eliminate such single sum optional form of 
benefit with respect to benefits accrued after January 1, 1991. As of 
January 1, 1991, the single sum optional form of benefit is available to 
a group of employees that satisfies the percentage test of section 
410(b)(1)(A). As of January 1, 1995, all nonhighly compensated employees 
who were entitled to the single sum optional form of benefit have 
terminated from employment with the employer and taken a distribution of 
their benefits. The only remaining employees who have a right to take a 
portion of their benefits in the form of a single sum distribution on 
termination of employment are highly compensated employees. Because the 
availability of the single sum optional form of benefit satisfied the 
current availability test as of January 1, 1991, the availability of 
such optional form of benefit is deemed to continue to satisfy the 
current availability test of this paragraph (a)(2).

    (3) Effective availability--(i) In general. The requirement of this 
paragraph (a)(3) is satisfied only if, based on the facts and 
circumstances, the group of employees to whom the optional form is 
effectively available does not substantially favor the highly 
compensated group. This is the case even if the optional form is, or has 
been, currently available to a group of employees that satisfies the 
applicable requirements in paragraph (a)(2) (i) or (ii) of this Q&A-2.
    (ii) Examples. The provisions of paragraph (a)(3)(i) of this Q&A-2 
can be illustrated by the following examples:

    Example 1. Employer X maintains a defined benefit plan that covers 
both of the 2 highly compensated employees of the employer and 8 of the 
twelve nonhighly compensated employees of the employer. Plan X provides 
for a normal retirement benefit payable as an annuity and based on a 
normal retirement age of 65, and an early retirement benefit payable 
upon termination in the form of an annuity to employees who terminate 
from service with the employer on or after age 55 with 30 or more years 
of service. Each of the 2 employees of employer X who are in the highly 
compensated group currently meet the age and service requirement, or 
will have 30 years of service by the time they reach age 55. All but 2 
of the 8 nonhighly compensated employees of employer X who are covered 
by the plan were hired on or after age 35 and thus, cannot qualify for 
the early retirement benefit provision. Even though the group of 
employees to whom the early

[[Page 57]]

retirement benefit is currently available does not impermissibly favor 
the highly compensated group by reason of disregarding age and service, 
these facts and circumstances indicate that the effective availability 
of the early retirement benefit in plan X substantially favors the 
highly compensated group.
    Example 2. Assume the same facts as in Example 1 except that the 
early retirement benefit is added by a plan amendment first adopted, 
announced and effective December 1, 1991, and is available only to 
employees who terminate from employment with the employer prior to 
December 15, 1991. Further assume that all employees were hired prior to 
attaining age 25, and that the group of employees who have, or will have 
attained age 55 with 30 years of service, by December 15, 1991, 
satisfies the ratio test of section 410(b)(1)(B). Finally, assume that 
the only employees who terminate from employment with the employer 
during the two week period in which the early retirement benefit is 
available are employees in the highly compensated group. These facts and 
circumstances indicate that the effective availability of the early 
retirement benefit substantially favors the highly compensated group. 
This is the case even though the limitation of the early retirement 
benefit to a specified period satisfies section 411(d)(6).
    Example 3. Employer Y amends plan Y on June 30, 1990, to provide for 
a single sum distribution for employees who terminate from employment 
with the employer after June 30, 1990, and prior to January 1, 1991. The 
availability of this single sum distribution is conditioned on the 
employee having a particular disability at the time of termination of 
employment. The only employee of the employer who meets this disability 
requirement at the time of the amendment and thereafter through December 
31, 1990, is a highly compensated employee. Generally, a disability 
condition with respect to the availability of a single sum distribution 
may be disregarded in determining whether the current availability of 
such optional form of benefit is discriminatory. However, these facts 
and circumstances indicate that the effective availability of the 
optional form of benefit substantially favors the highly compensated 
group.
    Example 4. Employer Z maintains a money purchase pension plan that 
covers all employees of the employer. The plan provides for distribution 
in the form of a joint and survivor annuity, a life annuity, or equal 
installments over 10 years. During the 1992 calendar year the employer 
winds up his business. In December of 1992, only two employees remain in 
the employment of the employer, both of whom are highly compensated. 
Employer Z then amends the plan to provide for a single sum distribution 
to employees who terminate from employment on or after the date of the 
amendment. Both highly compensated employees terminate from employment 
on December 31, 1992, taking a single sum distribution of their 
benefits. These facts and circumstances indicate that the effective 
availability of the single sum optional form of benefit substantially 
favors the highly compensated group.

    (b) Application of tests--(1) Current availability--(i) In general. 
Except as otherwise provided in this paragraph (b), in determining 
whether an optional form of benefit that is subject to specified 
eligibility conditions is currently available to an employee for 
purposes of paragraph (a) of this Q&A-2, the determination of current 
availability generally is to be based on the current facts and 
circumstances with respect to the employee (e.g., the employee's current 
compensation or the employee's current net worth). Thus, for example, 
the fact that an employee may, in the future, satisfy an eligibility 
condition generally does not cause an optional form of benefit to be 
treated as currently available to such employee.
    (ii) Exceptions for age, service, employment termination and certain 
other conditions--(A) Age and service conditions. For purposes of 
applying paragraph (a)(2) of this Q&A-2, except as provided in paragraph 
(b)(1)(ii)(B) of this Q&A-2, an age condition, a service condition, or 
both are to be disregarded. For example, an employer that maintains a 
plan that provides for an early retirement benefit payable as an annuity 
for employees in division A, subject to a requirement that the employee 
has attained his or her 55th birthday and has at least twenty years of 
service with the employer, is to disregard the age and service 
conditions in determining the group of employees to whom the early 
retirement annuity benefit is currently available. Thus, the early 
retirement annuity benefit is treated as currently available to all 
employees of division A, without regard to their ages or years of 
service and without regard to whether they could potentially meet the 
age and service conditions prior to attaining the plan's normal 
retirement age.
    (B) Exception for certain age and service conditions. Age and 
service conditions that must be satisfied within a specified period of 
time may not be disregarded pursuant to paragraph

[[Page 58]]

(b)(1)(ii)(A) of this Q&A-2. However, in determining the current 
availability of an optional form of benefit subject to such an age 
condition, service condition, or both, an employer may project the age 
and service of employees to the last date on which the optional form of 
benefit subject to the age condition or service condition (or both) is 
available under the plan. An employer's ability to protect age and 
service to the last date on which the optional form of benefit is 
available under the plan is not cut off by a plan termination occurring 
prior to that date. Thus, for example, assume that an employer 
maintaining a plan that permits employees terminating from employment on 
or after age 55 between June 1, 1991 to May 31, 1992, to elect a single 
sum distribution, decides to terminate the plan on December 31, 1991. In 
determining the group of employees to whom the single sum optional form 
of benefit is currently available, this employer may project employees' 
ages through May 31, 1992.
    (C) Certain other conditions disregarded. Conditions on the 
availability of optional forms of benefit requiring termination of 
employment, death, satisfaction of a specified health condition (or 
failure to meet such condition), disability, hardship, marital status, 
default on a plan loan secured by a participant's account balance, or 
execution of a covenant not to compete may be disregarded in determining 
the group of employees to whom an optional form of benefit is currently 
available.
    (2) Employees taken into account. For purposes of applying paragraph 
(a) of this Q&A-2, the tests are to be applied on the basis of the 
employer's nonexcludable employees (whether or not they are participants 
in the plan) in the same manner as such tests would be applied in 
determining whether the plan providing the optional form of benefit 
satisfies the tests under section 410(b).
    (3) Definition of ``plan''. For purposes of applying paragraph (a) 
of this Q&A-2, the term ``plan'' has the meaning that such term has for 
purposes of determining whether the amount of contributions or benefits 
and whether other benefits, rights, and features are nondiscriminatory 
under section 401(a)(4).
    (4) Restructuring optional forms of benefit--(i) In general. For 
purposes of applying paragraph (a) of this Q&A-2, the availability of 
two or more optional forms of benefit under a plan may be tested by 
restructuring such benefits into two or more restructured optional forms 
of benefit and testing the availability of such restructured optional 
forms of benefit. If two or more optional forms of benefit under a plan 
contain both common and distinct components, such optional forms of 
benefit may be restructured as a single optional form of benefit 
comprising the common component, and one or more optional forms of 
benefit comprising each distinct component. Components of optional forms 
of benefit may be treated as common only if they are identical with 
respect to all characteristics taken into account under Q&A-1(b) of 
Sec. 1.411(d)-4. The availability of each restructured optional form of 
benefit must satisfy the applicable nondiscrimination requirements of 
paragraph (a) of this Q&A-2.

    (ii) Example. A profit-sharing plan covering all the employees of an 
employer provides a single sum distribution option upon termination from 
employment for all employees earning less than $50,000 and a single sum 
distribution option upon termination from employment after the 
attainment of age 55 for all employees earning $50,000 or more. These 
distribution options are identical in all other respects. For purposes 
of applying section 401(a)(4), such optional forms of benefit may be 
restructured into two different optional forms of benefit: (A) a single 
sum distribution option upon termination from employment after the 
attainment of age 55 for all employees (i.e., the common component), and 
(B) a single sum distribution option upon termination from employment 
before the attainment of age 55 for all employees earning less than 
$50,000. The availability of each of these restructured optional forms 
of benefit must satisfy section 401(a)(4).

    (c) Commissioner may provide additional tests. The Commissioner may 
provide such additional factors, tests, and safe harbors as are 
necessary or appropriate for purposes of determining whether the 
availability of an optional form of benefit is discriminatory under 
section 401(a)(4). In addition, the Commissioner may provide that 
additional

[[Page 59]]

eligibility conditions not related directly or indirectly to 
compensation or wealth may be disregarded under paragraph (b)(1)(ii)(C) 
of this Q&A-2 in determining the current availability of an optional 
form of benefit. The Commissioner may provide such additional guidance 
only through the publication of revenue rulings, notices or other 
documents of general applicability.
    Q-3: May a plan condition the availability of an optional form of 
benefit on employer discretion?
    A-3: No. Even if the availability of an optional form of benefit 
that is conditioned on employer discretion satisfies the 
nondiscrimination requirements of section 401(a)(4), the plan providing 
the optional form of benefit will fail to satisfy certain other 
requirements of section 401(a), including, in applicable circumstances, 
the definitely determinable requirement of section 401(a) and the 
requirements of section 401(a)(25) and section 411(d)(6). See 
Sec. 1.411(d)-4.
    Q-4: Will a plan provision violate section 401(a)(4) merely because 
it requires that an employee who terminates from service with the 
employer receive a single sum distribution in the event that the present 
value of the employee's benefit is not more than $3,500, as permitted by 
sections 411(a)(11) and 417(e)?
    A-4: No. A plan will not be treated as discriminatory under section 
401(a)(4) merely because the plan mandates a single sum distribution 
when the present value of an employee's benefit is not more than $3,500, 
as permitted by sections 411(a)(11) and 417(e). This is an exception to 
the general principles of this section. (No similar provision exists 
excepting such single sum distributions from the limits on employer 
discretion under section 411(d)(6). See Sec. 1.411(d)-4 Q&A-4.)
    Q-5: If the availability of an optional form of benefit 
discriminates, or may reasonably be expected to discriminate, in favor 
of the highly compensated group, what acceptable alternatives exist for 
amending the plan without violating section 411(d)(6)?
    A-5: (a) Transitional rules--(1) In general. The following rules 
apply for purposes of making necessary amendments to existing plans (as 
defined in Q&A-6 of this section) under which the availability of an 
optional form of benefit violates the nondiscrimination requirements of 
section 401(a)(4) or may reasonably be expected to violate such 
requirements. These transitional rules are provided under the authority 
of section 411(d)(6), which allows the elimination of certain optional 
forms of benefit if permitted by regulations, and section 7805(b).
    (2) Nondiscrimination--(i) In general. The determination of whether 
the availability of an optional form of benefit violates section 
401(a)(4) is to be made in accordance with Q&A-2 of this section. In 
addition, the availability of a particular optional form of benefit may 
reasonably be expected to violate the nondiscrimination requirements of 
section 401(a)(4) if, under the applicable facts and circumstances, 
there is a significant possibility that the current availability of such 
optional form of benefit will impermissibly favor the highly compensated 
group. This determination must be made on the basis of the seventy 
percent test of section 410(b)(1)(A) or the nondiscriminatory 
classification test of section 410(b)(1)(B) as such tests existed prior 
to the effective date of the amendments made to section 410(b) by 
section 1112(a) of TRA '86. Thus, a condition may not reasonably be 
expected to discriminate for purposes of these rules merely because it 
results in a significant possibility that discrimination will result 
because of the amendments made to section 410(b) by section 1112(a) of 
TRA '86. In addition, the availability of an optional form of benefit 
may not reasonably be expected to discriminate merely because of an age 
or service condition that may be disregarded in determining the current 
availability of such optional form of benefit under paragraph 
(b)(1)(ii)(A) of Q&A-2 of this section. Similarly, the availability of 
an optional form of benefit may not reasonably be expected to 
discriminate merely because of an age or service condition that, after 
permitted projection, does not cause such optional form to fail to 
satisfy the requirement of this paragraph (a)(2).
    (ii) Examples. The provisions of paragraph (a)(2)(i) of this Q&A-5 
can be illustrated by the following examples:


[[Page 60]]


    Example (1). A plan provides that a single sum distribution option 
is available only to (A) employees earning $50,000 or more in the final 
year of employment, (B) employees who furnish evidence that they have a 
net worth above a certain specified amount, and (C) employees who 
present a letter from an accountant or attorney declaring that it is in 
the employee's best interest to receive a single sum distribution. 
Whether the availability of such optional form of benefit discriminates 
depends on whether it meets the requirements of Q&A-2 of this 
Sec. 1.401(a)-4. However, each of the specified conditions limiting the 
availability of the optional form of benefit may reasonably be expected 
to discriminate in favor of the highly compensated group in operation 
because of the likelihood of a significant positive correlation between 
the ability to meet any of the specified conditions and membership in 
the highly compensated group.
    Example (2). A plan limits the availability of a single sum 
distribution option to employees employed in one particular division of 
the employer's company. All the employees of the company are 
participants in the plan. During the 1988 plan year, the division 
employs individuals who represent a nondiscriminatory classification of 
that company's employees (under section 410(b)(1)(B) prior to the 
effective date of the amendments made to section 410(b) by section 
1112(a) of TRA '86) and is unlikely to cease employing such a 
nondiscriminatory classification in the future. The availability of a 
single sum distribution under this plan does not result in 
discrimination during the 1988 plan year and may not reasonably be 
expected to do so.

    (b) Transitional alternatives. If the availability of an optional 
form of benefit under an existing plan is discriminatory under section 
401(a)(4), the plan must be amended either to eliminate the optional 
form of benefit or to make the availability of the optional form of 
benefit nondiscriminatory. For example, the availability of an optional 
form of benefit may be made nondiscriminatory by making such benefit 
available to sufficient additional employees who are not in the highly 
compensated group or by imposing nondiscriminatory objective criteria on 
its availability such that the group of employees to whom the benefit is 
available is nondiscriminatory. See Q&A-6 of Sec. 1.411(d)-4 for 
requirements with respect to such objective criteria. If, under an 
exisitng plan, the availability of an optional form of benefit may 
reasonably be expected to discriminate, the plan may be amended in the 
same manner permitted where the availability of an optional form of 
benefit is discriminatory. See paragraph (d) of this Q&A-5 for rules 
limiting the period during which the availability of optional forms of 
benefit may be eliminated or reduced under this paragraph.
    (c) Compliance and amendment date provisions--(1) Operational 
compliance requirement. On or before the applicable effective date for 
the plan (see Q&A-6 of this section), the plan sponsor must select one 
of the alternatives permitted under paragraph (b) of this Q&A-5 with 
respect to each affected optional form of benefit and the plan must be 
operated in accordance with this selection. This is an operational 
requirement and does not require a plan amendment prior to the period 
set forth in paragraph (c)(2) of this Q&A-5. There is no special 
reporting requirement under the Code or this section with respect to 
this selection.
    (2) Deferred amendment date. If paragraph (c)(1) of this Q&A-5 is 
satisfied, a plan amendment conforming the plan to the particular 
alternative selected under paragraph (b) of this Q&A-5 must be adopted 
within the time period permitted for amending plans in order to meet the 
requirements of section 410(b) as amended by TRA '86. Such conforming 
amendment must be consistent with the sponsor's selection as reflected 
by plan practice during the period from the effective date to the date 
the amendment is adopted. Thus, for example, if an existing calendar 
year noncollectively bargained defined benefit plan has a single sum 
distribution form subject to a discriminatory condition, that was 
available as of January 30, 1986 (subject to such condition), and such 
employer makes one or more single sum distributions available on or 
after the first day of the first plan year commencing on or after 
January 1, 1989, and before the plan amendment, then such employer may 
not adopt a plan amendment eliminating the single sum distribution form. 
Instead, such employer must adopt an amendment making the distribution 
form available to a nondiscriminatory group of employees while retaining 
the availability of such distribution form with respect to the group of 
employees to whom the

[[Page 61]]

benefit is already available. Similarly, any objective criteria that are 
adopted as part of such amendment must be consistent with the plan 
practice for the applicable period prior to the amendment. A conforming 
amendment under this paragraph (c)(2) must be made with respect to each 
optional form of benefit for which such amendment is required and must 
be retroactive to the applicable effective date.
    (d) Limitation on transitional alternatives. The transitional 
alternatives permitting the elimination or reduction of optional forms 
of benefit will not violate section 411(d)(6) during the period prior to 
the applicable effective date for the plan (see Q&A-6 of this section). 
After the applicable effective date, any amendment (other than one 
described in paragraph (c)(2) of this Q&A-5) that eliminates or reduces 
an optional form of benefit or imposes new objective criteria 
restricting the availability of such optional form of benefit will fail 
to qualify for the exception to section 411(d)(6) provided in this Q&A-
5. This is the case without regard to whether the availability of the 
optional form of benefit is discriminatory or may reasonably be expected 
to be discriminatory.
    Q-6: For what period are the rules of this section effective?
    A-6: (a) General effective date--(1) In general. Except as otherwise 
provided in this section, the provisions of this section are effective 
January 30, 1986, and do not apply to plan years beginning on or after 
January 1, 1994. For rules applicable to plan years beginning on or 
after January 1, 1994, see Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13.
    (2) Plans of tax-exempt organizations. In the case of plans 
maintained by organizations exempt from income taxation under section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans), except as otherwise provided in this section, the provisions of 
this section are effective January 30, 1986, and do not apply to plan 
years beginning on or after January 1, 1996. For rules applicable to 
plan years beginning on or after January 1, 1996, see Secs. 1.401(a)(4)-
1 through 1.401(a)(4)-13.
    (b) New plans--(1) In general. Unless otherwise provided in 
paragraph (b)(2) of this Q&A-6, plans that are either adopted or made 
effective on or after January 30, 1986, are ``new plans''. With respect 
to such new plans, this section is effective January 30, 1986. This 
effective date is applicable to such plans whether or not they are 
collectively bargained.
    (2) Exception with respect to certain new plans. Plans that are new 
plans as defined in paragraph (b)(1) of this Q&A-6, under which the 
availability of an optional form of benefit is discriminatory or may 
reasonably be expected to be discriminatory, and that receive a 
favorable determination letter that covered such plan provisions with 
respect to an application submitted prior to July 11, 1988, will be 
treated as existing plans with respect to such optional form of benefit 
for purposes of the transitional rules of this section. Thus, such plans 
are eligible for the compliance and amendment alternatives set forth in 
the transitional rule in Q&A-5 of this section.
    (c) Existing plans--(1) In general. Plans that are both adopted and 
in effect prior to January 30, 1986, are ``existing plans''. In 
addition, new plans described in paragraph (b)(2) of this Q&A-6 are 
treated as existing plans with respect to certain forms of benefit. 
Subject to the limitations in paragraph (d) of this Q&A-6, the effective 
dates set forth in paragraphs (c)(2) and (c)(3) of this Q&A-6 apply to 
these existing plans for purposes of this section.
    (2) Existing noncollectively bargained plans. With respect to 
existing noncollectively bargained plans, this section is effective for 
the first day of the first plan year commencing on or after January 1, 
1989.
    (3) Existing collectively bargained plans. With respect to existing 
collectively bargained plans, this section is effective for the later of 
the first day of the first plan year commencing on or after January 1, 
1989, or the first day of the first plan year that the requirements of 
section 410(b) as amended by TRA '86 apply to such plan.
    (d) Delayed effective dates not applicable to new optional forms of 
benefit or conditions--(1) In general. The delayed effective dates in 
paragraph (c) (2) and (3) of this Q&A-6 for existing plans are 
applicable with respect to an optional

[[Page 62]]

form of benefit only if both the optional form of benefit and any 
applicable condition either causing the availability of such optional 
form of benefit to be discriminatory or making it reasonable to expect 
that the availability of such optional form will be discriminatory were 
both adopted and in effect prior to January 30, 1986. If the preceding 
sentence is not satisfied with respect to an optional form of benefit, 
this section is effective with respect to such optional form of benefit 
as if the plan were a new plan.
    (2) Exception for certain amendments covered by a favorable 
determination letter. If a condition causing the availability of an 
optional form of benefit to be discriminatory, or to be reasonably 
expected to discriminate, was adopted or made effective on or after 
January 30, 1986, and a favorable determination letter that covered such 
plan provision is or was received with respect to an application 
submitted before July 11, 1988, the effective date of this section with 
respect to such provision is the applicable effective date determined 
under the rules with respect to existing plans, as though such provision 
had been adopted and in effect prior to January 30, 1986.
    (e) Transitional rule effective date. The transitional rule provided 
in Q&A-5 of this section is effective January 30, 1986.

[53 FR 26054, July 11, 1988, as amended by T.D. 8360, 56 FR 47536, Sept. 
19, 1991; T.D. 8485, 58 FR 46778, Sept. 3, 1993; T.D. 8212, 61 FR 14247, 
Apr. 1, 1996]



Sec. 1.401(a)-11  Qualified joint and survivor annuities.

    (a) General rule--(1) Required provisions. A trust, to which section 
411 (relating to minimum vesting standards) applies without regard to 
section 411(e)(2), which is a part of a plan providing for the payment 
of benefits in any form of a life annuity (as defined in paragraph 
(b)(1) of this section), shall not constitute a qualified trust under 
section 401(a)(11) and this section unless such plan provides that:
    (i) Unless the election provided in paragraph (c)(1) of this section 
has been made, life annuity benefits will be paid in a form having the 
effect of a qualified joint and survivor annuity (as defined in 
paragraph (b)(2) of this section) with respect to any participant who--
    (A) Begins to receive payments under such plan on or after the date 
the normal retirement age is attained, or
    (B) Dies (on or after the date the normal retirement age is 
attained) while in active service of the employer maintaining the plan, 
or
    (C) In the case of a plan which provides for the payment of benefits 
before the normal retirement age, begins to receive payments under such 
plan on or after the date the qualified early retirement age (as defined 
in paragraph (b)(4) of this section) is attained, or
    (D) Separates from service on or after the date the normal 
retirement age (or the qualified early retirement age) is attained and 
after satisfaction of eligibility requirements for the payment of 
benefits under the plan (except for any plan requirement that there be 
filed a claim for benefits) and thereafter dies before beginning to 
receive life annuity benefits;
    (ii) Any participant may elect, as provided in paragraph (c)(1) of 
this section, not to receive life annuity benefits in the form of a 
qualified joint and survivor annuity; and
    (iii) If the plan provides for the payment of benefits before the 
normal retirement age, any participant may elect, as provided in 
paragraph (c)(2) of this section, that life annuity benefits be payable 
as an early survivor annuity (as defined in paragraph (b)(3) of this 
section) upon his death in the event that he--
    (A) Attains the qualified early retirement age (as defined in 
paragraph (b)(4) of this section), and
    (B) Dies on or before the day normal retirement age is attained 
while employed by an employer maintaining the plan.
    (2) Certain cash-outs. A plan will not fail to satisfy the 
requirements of section 401(a)(11) and this section merely because it 
provides that if the present value of the entire nonforfeitable benefit 
derived from employer contributions of a participant at the time of his 
separation from service does not exceed $1,750 (or such smaller amount 
as the plan may specify), such benefit will be paid to him in a lump 
sum.

[[Page 63]]

    (3) Illustrations. The provisions of subparagraph (1) of this 
paragraph may be illustrated by the following examples:
    Example (1). The X Corporation Defined Contribution Plan was 
established in 1960. As in effect on January 1, 1974, the plan provided 
that, upon the participant's retirement, the participant may elect to 
receive the balance of his account in the form of (1) a single-sum cash 
payment, (2) a single-sum distribution consisting of X Corporation 
stock, (3) five equal annual cash payments, (4) a life annuity, or (5) a 
combination of options (1) through (4). The plan also provided that, if 
a participant did not elect another form of distribution, the balance of 
his account would be distributed to him in the form of a single-sum cash 
payment upon his retirement. Assume that section 401(a)(11) and this 
section became applicable to the plan as of its plan year beginning 
January 1, 1976, with respect to persons who were active participants in 
the plan as of such date (see paragraph (f) of this section). If X 
Corporation Defined Contribution Plan continues to allow the life 
annuity payment option after December 31, 1975, it must be amended to 
provide that if a participant elects a life annuity option the life 
annuity benefit will be paid in a form having the effect of a qualified 
joint and survivor annuity, except to the extent that the participant 
elects another form of benefit payment. However, the plan can continue 
to provide that, if no election is made, the balance will be paid as a 
single-sum cash payment. If the trust is not so amended, it will fail to 
qualify under section 401(a).
    Example (2). The Corporation Retirement Plan provides that plan 
benefits are payable only in the form of a life annuity and also 
provides that a participant may retire before the normal retirement age 
of 65 and receive a benefit if he has completed 30 years of service. 
Under this plan, an employee who begins employment at the age of 18 will 
be eligible to receive retirement benefits at the age of 48 if he then 
has 30 years of service. This plan must allow a participant to elect in 
the time and manner prescribed in paragraph (c)(2) of this section an 
early survivor annuity (defined in paragraph (b)(3) of this section) to 
be payable on the death of the participant if death occurs while the 
participant is in active service for the employer maintaining the plan 
and on or after the date the participant reaches the qualified early 
retirement age of 55 (the later of the date the participant reaches the 
earliest retirement age (age 48) or 10 years before normal retirement 
age (age 55)) but before the day after the day the participant reaches 
normal retirement age (age 65).
    Example (3). Assume the same facts as in Example (2). A, B, and C 
began employment with Y Corporation when they each attained age 18. A 
retires and begins to receive benefit payments at age 48 after 
completing 30 years of service. The plan is not required to pay a 
qualified joint and survivor annuity to A and his spouse at any time. B 
does not elect an early survivor annuity at age 55, but retires at age 
57 after completing 39 years of service. Unless B makes an election 
under subparagraph (1)(ii) of this paragraph, the plan is required to 
pay a qualified joint and survivor annuity to B and his spouse. C makes 
no elections described in subparagraph (1) of this paragraph, and dies 
while in active service at age 66 after completing 48 years of service. 
The plan is required to pay a qualified survivor annuity to C's spouse.

    (b) Definitions. As used in this section--(1) Life annuity. (i) The 
term ``life annuity'' means an annuity that provides retirement payments 
and requires the survival of the participant or his spouse as one of the 
conditions for any payment or possible payment under the annuity. For 
example, annuities that make payments for 10 years or until death, 
whichever occurs first or whichever occurs last, are life annuities.
    (ii) However, the term ``life annuity'' does not include an annuity, 
or that portion of an annuity, that provides those benefits which, under 
section 411(a)(9), would not be taken into account in the determination 
of the normal retirement benefit or early retirement benefit. For 
example, ``social security supplements'' described in the fourth 
sentence of section 411(a)(9) are not considered to be life annuities 
for the purposes of this section, whether or not an early retirement 
benefit is provided under the plan.
    (2) Qualified joint and survivor annuity. The term ``qualified joint 
and survivor annuity'' means an annuity for the life of the participant 
with a survivor annuity for the life of his spouse which is neither (i) 
less than one-half of, nor (ii) greater than, the amount of the annuity 
payable during the joint lives of the participant and his spouse. For 
purposes of the preceding sentence, amounts described in Sec. 1.401(a)-
11(b)(1)(ii) may be disregarded. A qualified joint and survivor annuity 
must be at least the actuarial equivalent of the normal form of life 
annuity or, if greater, of any optional form of life annuity offered 
under the plan. Equivalence may be determined, on the basis of 
consistently applied reasonable actuarial

[[Page 64]]

factors, for each participant or for all participants or reasonable 
groupings of participants, if such determination does not result in 
discrimination in favor of employees who are officers, shareholders, or 
highly compensated. An annuity is not a qualified joint and survivor 
annuity if payments to the spouse of a deceased participant are 
terminated, or reduced, because of such spouse's remarriage.
    (3) Early survivor annuity. The term ``early survivor annuity'' 
means an annuity for the life of the participant's spouse the payments 
under which must not be less than the payments which would have been 
made to the spouse under the joint and survivor annuity if the 
participant had made the election described in paragraph (c)(2) of this 
section immediately prior to his retirement and if his retirement had 
occurred on the day before his death and within the period during which 
an election can be made under such paragraph (c)(2). For example, if a 
participant would be entitled to a single life annuity of $100 per month 
or a reduced amount under a qualified joint and survivor annuity of $80 
per month, his spouse is entitled to a payment of at least $40 per 
month. However, the payments may be reduced to reflect the number of 
months of coverage under the survivor annuity pursuant to paragraph (e) 
of this section.
    (4) Qualified early retirement age. The term ``qualified early 
retirement age'' means the latest of--
    (i) The earliest date, under the plan, on which the participant 
could elect (without regard to any requirement that approval of early 
retirement be obtained) to receive retirement benefits (other than 
disability benefits).
    (ii) The first day of the 120th month beginning before the 
participant reaches normal retirement age, or
    (iii) The date on which the participant begins participation.
    (5) Normal retirement age. The term ``normal retirement age'' has 
the meaning set forth in section 411(a)(8).
    (6) Annuity starting date. The term ``annuity starting date'' means 
the first day of the first period with respect to which an amount is 
received as a life annuity, whether by reason of retirement or by reason 
of disability.
    (7) Day. The term ``day'' means a calendar day.
    (c) Elections--(1) Election not to take joint and survivor annuity 
form--(i)  In general. (A) A plan shall not be treated as satisfying the 
requirements of this section unless it provides that each participant 
may elect, during the election period described in subdivision (ii) of 
this subparagraph, not to receive a qualified joint and survivor 
annuity. However, if a plan provides that a qualified joint and survivor 
annuity is the only form of benefit payable under the plan with respect 
to a married participant, no election need be provided.
    (B) The election shall be in writing and clearly indicate that the 
participant is electing to receive all or, if permitted by the plan, 
part of his benefits under the plan in a form other than that of a 
qualified joint and survivor annuity. A plan will not fail to meet the 
requirements of this section merely because the plan requires the 
participant to obtain the written approval of his spouse in order for 
the participant to make this election or if the plan provides that such 
approval is not required.
    (ii) Election period. (A) For purposes of the election described in 
paragraph (c)(1)(i) of this section, the plan shall provide an election 
period which shall include a period of at least 90 days following the 
furnishing of all of the applicable information required by subparagraph 
(3)(i) of this paragraph and ending prior to commencement of benefits. 
In no event may the election period end earlier than the 90th day before 
the commencement of benefits. Thus, for example, the commencement of 
benefits may be delayed until the end of such election period because 
the amount of payments to be made to a participant cannot be ascertained 
before the end of such period; see Sec. 1.401(a)-14(d).

If a participant makes a request for additional information as provided 
in subparagraph (3)(iii) of this paragraph on or before the last day of 
the election

[[Page 65]]

period, the election period shall be extended to the extent necessary to 
include at least the 90 calendar days immediately following the day the 
requested additional information is personally delivered or mailed to 
the participant. Notwithstanding the immediately preceding sentence, a 
plan may provide in cases in which the participant has been furnished by 
mail or personal delivery all of the applicable information required by 
subparagraph (3)(i) of this paragraph, that a request for such 
additional information must be made on or before a date which is not 
less than 60 days from the date of such mailing or delivery; and if the 
plan does so provide, the election period shall be extended to the 
extent necessary to include at least the 60 calendar days following the 
day the requested additional information is personally delivered or 
mailed to the participant.
    (B) In the case of a participant in a plan to which this 
subparagraph applies who separated from service after section 401(a)(11) 
and this section became applicable to such plan with respect to such 
participant, and to whom an election required by this subparagraph has 
not been previously made available (and will not become available in 
normal course), the plan must provide an election to receive the balance 
of his benefits (properly adjusted, if applicable, for payments 
received, prior to the exercise of such election, in the form of a 
qualified joint and survivor annuity) in a form other than that of a 
qualified joint and survivor annuity. The provisions of paragraph 
(c)(1)(ii)(A) shall apply except that in no event shall the election 
period end before the 90th day after the date on which notice of the 
availability of such election and the applicable information required by 
subparagraph (3)(i) of this paragraph is given directly to the 
participant. If such notice and information is given by mail, it shall 
be treated as given on the date of mailing. If such participant has 
died, such election shall be made available to such participant's 
personal representative.
    (2) Election of early survivor annuity--(i) In general. (A) A plan 
described in subparagraph (a)(1)(iii) of this section shall not be 
treated as satisfying the requirements of this section unless it 
provides that each participant may elect, during the period described in 
subdivision (ii) of this subparagraph, an early survivor annuity as 
described in paragraph (a)(1)(iii) of this section. Breaks in service 
after the participant has attained the qualified early retirement age 
neither invalidate a previous election or revocation nor prevent an 
election from being made or revoked during the election period.
    (B) The election shall be in writing and clearly indicate that the 
participant is electing the early survivor annuity form.
    (C) A plan is not required to provide an election under this 
subparagraph if--
    (1) The plan provides that an early survivor annuity is the only 
form of benefit payable under the plan with respect to a married 
participant who dies while employed by an employer maintaining the plan,
    (2) In the case of a defined contribution plan, the plan provides a 
survivor benefit at least equal in value to the vested portion of the 
participant's account balance, if the participant dies while in active 
service with an employer maintaining the plan, or
    (3) In the case of a defined benefit plan, the plan provides a 
survivor benefit at least equal in value to the present value of the 
vested portion of the participant's normal form of the accrued benefit 
payable at normal retirement age (determined immediately prior to 
death), if the participant dies while in active service with an employer 
maintaining the plan. Any present values must be determined in 
accordance with either the actuarial assumptions or factors specified in 
the plan, or a variable standard independent of employer discretion for 
converting optional benefits specified in the plan.
    (ii) Election period. (A) For purposes of the election described in 
paragraph (c)(2)(i) of this section the plan shall provide an election 
period which, except as provided in the following sentence, shall begin 
not later than the later of either the 90th day before a participant 
attains the qualified early retirement age or the date on which his 
participation begins, and shall end on

[[Page 66]]

the date the participant terminates his employment. If such a plan 
contains a provision that any election made under this subparagraph does 
not become effective or ceases to be effective if the participant dies 
within a certain period beginning on the date of such election, the 
election period prescribed in this subdivision (ii) shall begin not 
later than the later of (1) a date which is 90 days plus such certain 
period before the participant attains the qualified early retirement age 
or (2) the date on which his participation begins. For example, if a 
plan provides that an election made under this subparagraph does not 
become effective if the participant dies less than 2 years after the 
date of such election, the period for making an election under this 
subparagraph must begin not later than the later of (1) 2 years and 90 
days before the participant attains the qualified early retirement age, 
or (2) the date on which his participation begins. However, the election 
period for an individual who was an active participant on the date this 
section became effective with regard to the plan need not begin earlier 
than such effective date.
    (B) In the case of a participant in a plan to which this 
subparagraph applies who dies after section 401(a)(11) and this section 
became applicable to such plan with respect to such participant and to 
whom an election required by this subparagraph has not been previously 
made available, the plan must give the participant's surviving spouse 
or, if dead, such spouse's personal representative the option of 
electing an early survivor annuity. The plan may reduce the surviving 
spouse's annuity to take into account any benefits already received. The 
period for making such election shall not end before the 90th day after 
the date on which written notice of the availability of such election 
and applicable information required by subparagraph (3)(i) of this 
paragraph is given directly to such surviving spouse or personal 
representative. If such notice and information is given by mail, if 
shall be treated as given on the date of mailing.
    (3) Information to be provided by plan administrator. (i) A plan 
which is required to provide either or both of the elections described 
in paragraph (c) (1) or (2) of this section must provide to the 
participants, at the time and in the manner specified in subdivision 
(ii) of this subparagraph, the following information, as applicable to 
the plan, in written nontechnical language:
    (A) In the case of the election described in paragraph (c)(1) of 
this section, a general description or explanation of the qualified 
joint and survivor annuity, the circumstances in which it will be 
provided unless the participant has elected not to have benefits 
provided in that form, and the availability of such election;
    (B) In the case of the election described in paragraph (c)(2) of 
this section, a general description of the early survivor annuity, the 
circumstances under which it will be paid if elected, and the 
availability of such election; and
    (C) A general explanation of the relative financial effect on a 
participant's annuity of either or both elections, as the case may be.

Various methods may be used to explain such relative financial effect. 
With regard to a qualified joint and survivor annuity, they include: 
information as to the benefits the participant would receive under the 
qualified joint and survivor annuity stated as an arithmetic or 
percentage reduction from a single life annuity; a table showing the 
difference between a straight life annuity and a qualified joint and 
survivor annuity in terms of a reduction in dollar amounts; a table 
showing a percentage reduction from the straight life annuity or, in the 
case of a profit-sharing plan, an approximate dollar amount reduction. 
The notice and explanation required by this subdivision (i) must also 
inform the participants of the availability of the additional 
information specified in subdivision (iii) of this subparagraph and how 
they may obtain such information.
    (ii) The method or methods used to provide the information described 
in subdivision (i) of this subparagraph may vary. Posting which meets 
the requirements of Sec. 1.7476-2(c)(1) may be used; see Sec. 1.7476-
2(c)(1) for examples of other methods which may be used. One or more 
methods may be used to provide the required information provided that 
all of the required information is

[[Page 67]]

provided by one method or a combination of methods by or within the time 
period specified in this subdivision (ii). If mail or personal delivery 
is used, then, whether or not the information has been previously 
provided, there must be a mailing or personal delivery of the 
information by such time as to reasonably assure that it will be 
received on or about: (1) In the case of a plan which does not provide 
for the payment of benefits before the normal retirement age, the date 
which is 9 months before the participant attains normal retirement age; 
(2) in the case of a plan which provides for the payment of benefits 
before the normal retirement age and which is required to provide the 
election described in paragraph (c)(2) of this section (whether or not 
it is also required to provide the election described in paragraph 
(c)(1) of this section), the date which is 90 days before the latest 
date prescribed by paragraph (c)(2)(ii)(A) for the beginning of the 
election period for the early survivor annuity; or (3) in the case of a 
plan which provides for the payment of benefits before the normal 
retirement age and which is required to provide only the election 
described in paragraph (c)(1) of this section, the date which is nine 
months before the participant attains the qualified early retirement 
age; except that in the case of a plan described in (2) or (3), if the 
qualified early retirement age is the date the participant begins 
participation in the plan, the information may be provided on or about 
such date. If a method other than mail or personal delivery is used to 
provide participants with some or all of such information, if must be a 
method which is reasonably calculated to reach the attention of a 
participant on or about the date prescribed in the immediately preceding 
sentence and to continue to reach the attention of such participant 
during the election period applicable to him for which the information 
is being provide (as, for example, by permanent posting, repeated 
publication, etc.).
    (iii) The plan administrator must furnish to a particular 
participant, upon a timely written request, a written explanation in 
nontechnical language of the terms and conditions of the qualified joint 
and survivor annuity and the financial effect upon the particular 
participant's annuity of making any election under this paragraph. Such 
financial effect shall be given in terms of dollars per annuity payment; 
and in the case of a defined contribution plan, the projected annuity 
for a particular participant may be based on his account balance as of 
the most recent valuation date. The plan administrator need not comply 
with more than one such request made by a particular participant. This 
explanation must be personally delivered or mailed (first class mail, 
postage prepaid) to the participant within 30 days from the date of the 
participant's written request.
    (4) Election is revocable. A plan to which this section applies must 
provide that any election made under this paragraph may be revoked in 
writing during the specified election period, and that after such 
election has been revoked, another election under this paragraph may be 
made during the specified election period.
    (5) Election by surviving spouse. A plan will not fail to meet the 
requirements of section 401(a)(11) and this section merely because it 
provides that the spouse of a deceased participant may elect to have 
benefits paid in a form other than a survivor annuity. If the plan 
provides that such a spouse may make such an election, the plan 
administrator must furnish to this spouse, within a reasonable amount of 
time after a written request has been made by this spouse, a written 
explanation in non-technical language of the survivor annuity and any 
other form of payment which may be selected. This explanation must state 
the financial effect (in terms of dollars) of each form of payment. A 
plan need not respond to more than one such request.
    (d) Permissible additional plan provisions--(1) In general. A plan 
will not fail to meet the requirements of section 401(a)(11) and this 
section merely because it contains one or more of the provisions 
described in paragraphs (d)(2) through (5) of this section.
    (2) Claim for benefits. A plan may provide that as a condition 
precedent to the payment of benefits, a participant must express in 
writing to the plan administrator the form in which he prefers benefits 
to be paid and provide all

[[Page 68]]

the information reasonably necessary for the payment of such benefits. 
However, if a participant files a claim for benefits with the plan 
administrator and provides the plan administrator with all the 
information necessary for the payment of benefits but does not indicate 
a preference as to the form for the payment of benefits, benefits must 
be paid in the form of a qualified joint and survivor annuity if the 
participant has attained the qualified early retirement age unless such 
participant has made an effective election not to receive benefits in 
such form. For rules relating to provisions in a plan to the effect that 
a claim for benefits must be filed before the payment of benefits will 
commence, see Sec. 1.401(a)-14.
    (3) Marriage requirements. A plan may provide that a joint and 
survivor annuity will be paid only if--
    (i) The participant and his spouse have been married to each other 
throughout a period (not exceeding one year) ending on the annuity 
starting date.
    (ii) The spouse of the participant is not entitled to receive a 
survivor annuity (whether or not the election described in paragraph 
(c)(2) of this section has been made) unless the participant and his 
spouse have been married to each other throughout a period (not 
exceeding one year) ending on the date of such participant's death.
    (iii) The same spouse must satisfy the requirements of subdivisions 
(i) and (ii) of this subparagraph.
    (iv) The participant must notify the plan administrator (as defined 
by section 414(g)) of his marital status within any reasonable time 
period specified in the plan.
    (4) Effect of participant's death on an election or revocation of an 
election under paragraph (c). A plan may provide that any election 
described in paragraph (c) of this section or any revocation of any such 
election does not become effective or ceases to be effective if the 
participant dies within a period, not in excess of 2 years, beginning on 
the date of such election or revocation. However, a plan containing a 
provision described in the preceding sentence shall not satisfy the 
requirements of this section unless it also provides that any such 
election or any revocation of any such election will be given effect in 
any case in which--
    (i) The participant dies from accidental causes,
    (ii) A failure to give effect to the election or revocation would 
deprive the participant's survivor of a survivor annuity, and
    (iii) Such election or revocation is made before such accident 
occurred.
    (5) Benefit option approval by third party. (i) A plan may provide 
that an optional form of benefit elected by a participant is subject to 
the approval of an administrative committee or similar third party. 
However, the administrative committee cannot deny a participant any of 
the benefits required by section 401(a)(11). For example, if a plan 
offers a life annuity option, the committee may deny the participant a 
qualified joint and survivor annuity only by denying the participant 
access to all life annuity options without knowledge of whether the 
participant wishes to receive a qualified joint and survivor annuity. 
Alternatively, if the committee knows which form of life annuity the 
participant has chosen before the committee makes its decision, the 
committee cannot withhold its consent for payment of a qualified joint 
and survivor annuity event though it denies all other life annuity 
options. This subparagraph (5) only applies before the effective date of 
the amendment made to section 411(d)(6) by section 301 of the Retirement 
Equity Act of 1984. See section 411(d)(6) and the regulations thereunder 
for rules limiting employer discretion.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. In 1980 plan M provides that the automatic form of benefit 
is a single sum distribution. The plan also permits, subject to approval 
by the administrative committee, the election of several optional forms 
of life annuity. On the election form that is reviewed by the 
administrative committee the participant indicates whether any life 
annuity option is preferred, without indicating the particular life 
annuity chosen. Thus, the committee approves or disapproves the election 
without knowledge of whether a qualified joint and survivor annuity will 
be elected. The administrative committee approval provision in Plan M 
does not cause the plan to fail to satisfy this section. On the other 
hand, if the form indicates which form of life

[[Page 69]]

annuity is preferred, committee disapproval of any election of the 
qualified joint and survivor annuity would cause the plan to fail to 
satisfy this section.
    (e) Costs of providing qualified joint and survivor annuity form or 
early survivor annuity form. A plan may take into account in any 
equitable manner consistent with generally accepted actuarial principles 
applied on a consistent basis any increased costs resulting from 
providing qualified joint and survivor annuity and early survivor 
annuity benefits. A plan may give a participant the option of paying 
premiums only if it provides another option under which an out-of-pocket 
expense by the participant is not required.
    (f) Application and effective date. Section 401(a)(11) and this 
section shall apply to a plan only with respect to plan years beginning 
after December 31, 1975, and shall apply only if--
    (1) The participant's annuity starting date did not fall within a 
plan year beginning before January 1, 1976, and
    (2) The participant was an active participant in the plan on or 
after the first day of the first plan year beginning after December 31, 
1975.
    For purposes of this paragraph, the term ``active participant'' 
means a participant for whom benefits are being accrued under the plan 
on his behalf (in the case of a defined benefit plan), the employer is 
obligated to contribute to or under the plan on his behalf (in the case 
of a defined contribution plan other than a profit-sharing plan), or the 
employer either is obligated to contribute to or under the plan on his 
behalf or would have been obligated to contribute to or under the plan 
on his behalf if any contribution were made to or under the plan (in the 
case of a profit-sharing plan).

If benefits under a plan are provided by the distribution to the 
participants of individual annuity contracts, the annuity starting date 
will be considered for purposes of this paragraph to fall within a plan 
year beginning before January 1, 1976, with respect to any such 
individual contract that was distributed to the participant during a 
plan year beginning before January 1, 1976, if no premiums are paid with 
respect to such contract during a plan year beginning after December 31, 
1975. In the case of individual annuity contracts that are distributed 
to participants before January 1, 1978, and which contain an option to 
provide a qualified joint and survivor annuity, the requirements of this 
section will be considered to have been satisfied if, not later than 
January 1, 1978, holders of individual annuity contracts who are 
participants described in the first sentence of this paragraph are given 
an opportunity to have such contracts amended, so as to provide for a 
qualified joint and survivor annuity in the absence of a contrary 
election, within a period of not less than one year from the date such 
opportunity was offered. In no event, however, shall the preceding 
sentence apply with respect to benefits attributable to premiums paid 
after December 31, 1977.
    (g) Effect of REA 1984--(1) In general. The Retirement Equity Act of 
1984 (REA 1984) significantly changed the qualified joint and survivor 
annuity rules generally effective for plan years beginning after 
December 31, 1984. The new survivor annuity rules are primarily in 
sections 401(a)(11) and 417 as revised by REA 1984 and Secs. 1.401(a)-20 
and 417(e)-1.
    (2) Regulations after REA 1984. (i) REA and the regulations 
thereunder to the extent inconsistent with pre-REA 1984 section 
401(a)(11) and this section are controlling for years to which REA 1984 
applies. See e.g., paragraphs (a)(1) and (2) of this section, relating 
to required provisions and certain cash-outs, respectively and (e), 
relating to costs of providing annuities, for rules that are 
inconsistent with REA 1984 and, therefore, are not applicable to REA 
1984 years.
    (ii) To the extent that the pre-REA 1984 law either is the same as 
or consistent with REA 1984 and the new regulations hereunder, the rules 
in this section shall continue to apply for years to which REA 1984 
applies. (See, e.g.,  paragraph (c) (relating to how information is 
furnished participants and spouses) and paragraph (b) (defining a life 
annuity) for some of the rules that apply to REA 1984 years.) The rules 
in this section shall not apply for such years to the extent that they 
are inconsistent with REA 1984 and the regulations thereunder.

[[Page 70]]

    (iii) The Commissioner may provide additional guidance as to the 
continuing effect of the various rules in this section for years to 
which REA 1984 applies.

(Secs. 401(a)(11), 7805 Internal Revenue Code of 1954, (88 Stat. 935, 
68A Stat. 917; (26 U.S.C. 401(a)(11), 7805)))

[T.D. 7458, 42 FR 1466, Jan. 7, 1977; 42 FR 6367, Feb. 2, 1977; T.D. 
7510, 42 FR 53956, Oct. 4, 1977; T.D. 8219, 53 FR 31841, Aug. 22, 1988; 
53 FR 48534, Dec. 1, 1988]



Sec. 1.401(a)-12  Mergers and consolidations of plans and transfers of plan assets.

    A trust will not be qualified under section 401 unless the plan of 
which the trust is a part provides that in the case of any merger or 
consolidation with, or transfer of assets or liabilities to, another 
plan after September 2, 1974, each participant in the plan would receive 
a minimum benefit if the plan terminated immediately after the merger, 
consolidation, or transfer. This benefit must be equal to or greater 
than the benefit the participant would have been entitled to receive 
immediately before the merger, consolidation, or transfer if the plan in 
which he was a participant had then terminated. This section applies to 
a multiemployer plan only to the extent determined by the Pension 
Benefit Guaranty Corporation. For additional rules concerning mergers or 
consolidations of plans and transfers of plan assets, see section 414(l) 
and Sec. 1.414(l)-1.

[T.D. 7638, 44 FR 48195, Aug. 17, 1979]



Sec. 1.401(a)-13  Assignment or alienation of benefits.

    (a) Scope of the regulations. This section applies only to plans to 
which section 411 applies without regard to section 411(e)(2). Thus, for 
example, it does not apply to a governmental plan, within the meaning of 
section 414(d); a church plan, within the meaning of section 414(e), for 
which there has not been made the election under section 410(a) to have 
the participation, vesting, funding, etc. requirements apply; or a plan 
which at no time after September 2, 1974, provided for employer 
contributions.
    (b) No assignment or alienation--(1) General rule. Under section 
401(a)(13), a trust will not be qualified unless the plan of which the 
trust is a part provides that benefits provided under the plan may not 
be anticipated, assigned (either at law or in equity), alienated or 
subject to attachment, garnishment, levy, execution or other legal or 
equitable process.
    (2) Federal tax levies and judgments. A plan provision satisfying 
the requirements of subparagraph (1) of this paragraph shall not 
preclude the following:
    (i) The enforcement of a Federal tax levy made pursuant to section 
6331.
    (ii) The collection by the United States on a judgment resulting 
from an unpaid tax assessment.
    (c) Definition of assignment and alienation--(1) In general. For 
purposes of this section, the terms ``assignment'' and ``alienation'' 
include--
    (i) Any arrangement providing for the payment to the employer of 
plan benefits which otherwise would be due the participant under the 
plan, and
    (ii) Any direct or indirect arrangement (whether revocable or 
irrevocable) whereby a party acquires from a participant or beneficiary 
a right or interest enforceable against the plan in, or to, all or any 
part of a plan benefit payment which is, or may become, payable to the 
participant or beneficiary.
    (2) Specific arrangements not considered an assignment or 
alienation. The terms ``assignment'' and ``alienation'' do not include, 
and paragraph (e) of this section does not apply to, the following 
arrangements:
    (i) Any arrangement for the recovery of amounts described in section 
4045(b) of the Employee Retirement Income Security Act of 1974, 88 Stat. 
1027 (relating to the recapture of certain payments),
    (ii) Any arrangement for the withholding of Federal, State or local 
tax from plan benefit payments,
    (iii) Any arrangement for the recovery by the plan of overpayments 
of benefits previously made to a participant,
    (iv) Any arrangement for the transfer of benefit rights from the 
plan to another plan, or

[[Page 71]]

    (v) Any arrangement for the direct deposit of benefit payments to an 
account in a bank, savings and loan association or credit union, 
provided such arrangement is not part of an arrangement constituting an 
assignment or alienation. Thus, for example, such an arrangement could 
provide for the direct deposit of a participant's benefit payments to a 
bank account held by the participant and the participant's spouse as 
joint tenants.
    (d) Exceptions to general rule prohibiting assignments or 
alienations--(1) Certain voluntary and revocable assignments or 
alienations. Not withstanding paragraph (b)(1) of this section, a plan 
may provide that once a participant or beneficiary begins receiving 
benefits under the plan, the participant or beneficiary may assign or 
alienate the right to future benefit payments provided that the 
provision is limited to assignments or alienations which--
    (i) Are voluntary and revocable;
    (ii) Do not in the aggregate exceed 10 percent of any benefit 
payment; and
    (iii) Are neither for the purpose, nor have the effect, of defraying 
plan administration costs.

For purposes of this subparagraph, an attachment, garnishment, levy, 
execution, or other legal or equitable process is not considered a 
voluntary assignment or alienation.
    (2) Benefits assigned or alienated as security for loans. (i) 
Notwithstanding paragraph (b)(1) of this section, a plan may provide for 
loans from the plan to a participant or a beneficiary to be secured (by 
whatever means) by the participant's accrued nonforfeitable benefit 
provided that the following conditions are met.
    (ii) The plan provision providing for the loans must be limited to 
loans from the plan. A plan may not provide for the use of benefits 
accrued or to be accrued under the plan as security for a loan from a 
party other than the plan, regardless of whether these benefits are 
nonforfeitable within the meaning of section 411 and the regulations 
thereunder.
    (iii) The loan, if made to a participant or beneficiary who is a 
disqualified person (within the meaning of section 4975(e)(2)), must be 
exempt from the tax imposed by section 4975 (relating to the tax imposed 
on prohibited transactions) by reason of section 4975(d)(1). If the loan 
is made to a participant or beneficiary who is not a disqualified 
person, the loan must be one which would the exempt from the tax imposed 
by section 4975 by reason of section 4975(d)(1) if the loan were made to 
a disqualified person.
    (e) Special rule for certain arrangements--(1) In general. For 
purposes of this section and notwithstanding paragraph (c)(1) of this 
section, an arrangement whereby a participant or beneficiary directs the 
plan to pay all, or any portion, of a plan benefit payment to a third 
party (which includes the participant's employer) will not constitute an 
``assignment or alienation'' if--
    (i) It is revocable at any time by the participant or beneficiary; 
and
    (ii) The third party files a written acknowledgement with the plan 
administrator pursuant to subparagraph (2) of this paragraph.
    (2) Acknowledgement requirement for third party arrangements. In 
accordance with paragraph (e)(1)(ii) of this section, the third party is 
required to file a written acknowledgement with the plan administrator. 
This acknowledgement must state that the third party has no enforceable 
right in, or to, any plan benefit payment or portion thereof (except to 
the extent of payments actually received pursuant to the terms of the 
arrangement). A blanket written acknowledgement for all participants and 
beneficiaries who are covered under the arrangement with the third party 
is sufficient. The written acknowledgement must be filed with the plan 
administrator no later than the later of--
    (i) August 18, 1978; or
    (ii) 90 days after the arrangement is entered into.
    (f) Effective date. Section 401(a)(13) is applicable as of January 
1, 1976, and the plan provision required by this section must be 
effective as of that date. However, regardless of when the provision is 
adopted, it will not affect--
    (1) Attachments, garnishments, levies, or other legal or equitable 
process permitted under the plan that are made before January 1, 1976;

[[Page 72]]

    (2) Assignments permitted under the plan that are irrevocable on 
December 31, 1975, including assignments made before January 1, 1976, as 
security for loans to a participant or beneficiary from a party other 
than the plan; and
    (3) Renewals or extensions of loans described in subparagraph (2) of 
this paragraph, if--
    (i) The principal amount of the obligation outstanding on December 
31, 1975 (or, if less, the principal amount outstanding on the date of 
renewal or extension), is not increased;
    (ii) The loan, as renewed or extended, does not bear a rate of 
interest in excess of the rate prevailing for similar loans at the time 
of the renewal or extensions; and
    (iii) With respect to loans that are renewed or extended to bear a 
variable interest rate, the formula for determining the applicable rate 
is consistent with the formula for formulae prevailing for similar loans 
at the time of the renewal or extension.

For purposes of subparagraphs (2) and (3) of this paragraph, a loan from 
a party other than the plan made after December 31, 1975, will be 
treated as a new loan. This is so even if the lender's security interest 
for the loan arises from an assignment of the participant's accrued 
nonforfeitable benefit made before that date.
    (g) Special rules for qualified domestic relations orders--(1) 
Definition. The term ``qualified domestic relations order'' (QDRO) has 
the meaning set forth in section 414(p). For purposes of the Internal 
Revenue Code, a QDRO also includes any domestic relations order 
described in section 303(d) of the Retirement Equity Act of 1984.
    (2) Plan amendments. A plan will not fail to satisfy the 
qualification requirements of section 401(a) or 403(a) merely because it 
does not include provisions with regard to a QDRO.
    (3) Waiver of distribution requirements. A plan shall not be treated 
as failing to satisfy the requirements of sections 401 (a) and (k) and 
409(d) solely because of a payment to an alternate payee pursuant to a 
QDRO. This is the case even if the plan provides for payments pursuant 
to a QDRO to an alternate payee prior to the time it may make payments 
to a participant. Thus, for example, a pension plan may pay an alternate 
payee even though the participant may not receive a distribution because 
he continues to be employed by the employer.
    (4) Coordination with section 417--(i) Former spouse. (A) In 
general. Under section 414(p)(5), a QDRO may provide that a former 
spouse shall be treated as the current spouse of a participant for all 
or some purposes under sections 401(a)(11) and 417.
    (B) Consent. (1) To the extent a former spouse is treated as the 
current spouse of the participant by reason of a QDRO, any current 
spouse shall not be treated as the current spouse. For example, assume H 
is divorced from W, but a QDRO provides that H shall be treated as W's 
current spouse with respect to all of W's benefits under a plan. H will 
be treated as the surviving spouse under the QPSA and QJSA unless W 
obtains H's consent to waive the QPSA or QJSA or both. The fact that W 
married S after W's divorce from H is disregarded. If, however, the QDRO 
had provided that H shall be treated as W's current spouse only with 
respect to benefits that accrued prior to the divorce, then H's consent 
would be needed by W to waive the QPSA or QJSA with respect to benefits 
accrued before the divorce. S's consent would be required with respect 
to the remainder of the benefits.
    (2) In the preceding examples, if the QDRO ordered that a portion of 
W's benefit (either through separate accounts or a percentage of the 
benefit) must be distributed to H rather than ordering that H be treated 
as W's spouse, the survivor annuity requirements of sections 401(a)(11) 
and 417 would not apply to the part of W's benefit awarded H. Instead, 
the terms of the QDRO would determine how H's portion of W's accrued 
benefit is paid. W is required to obtain S's consent if W elects to 
waive either the QJSA or QPSA with respect to the remaining portion of 
W's benefit.
    (C) Amount of the QPSA or QJSA. (1) Where, because of a QDRO, more 
than one individual is to be treated as the surviving spouse, a plan may 
provide that the total amount to be paid in the form of a QPSA or 
survivor portion of a QJSA may not exceed the amount

[[Page 73]]

that would be paid if there were only one surviving spouse. The QPSA or 
survivor portion of the QJSA, as the case may be, payable to each 
surviving spouse must be paid as an annuity based on the life of each 
such spouse.
    (2) Where the QDRO splits the participant's accrued benefit between 
the participant and a former spouse (either through separate accounts or 
percentage of the benefit), the surviving spouse of the participant is 
entitled to a QPSA or QJSA based on the participant's accrued benefit as 
of the date of death or the annuity starting date, less the separate 
account or percentage that is payable to the former spouse. The 
calculation is made as if the separate account or percentage had been 
distributed to the participant prior to the relevant date.
    (ii) Current spouse. Under section 414(p)(5), even if the applicable 
election periods (i.e., the first day of the year in which the 
participant attains age 35 and 90 days before the annuity starting date) 
have not begun, a QDRO may provide that a current spouse shall not be 
treated as the current spouse of the participant for all or some 
purposes under sections 401(a)(11) and 417. A QDRO may provide that the 
current spouse waives all future rights to a QPSA or QJSA.
    (iii) Effects on benefits. (A) A plan is not required to provide 
additional vesting or benefits because of a QDRO.
    (B) If an alternate payee is treated pursuant to a QDRO as having an 
interest in the plan benefit, including a separate account or percentage 
of the participant's account, then the QDRO cannot provide the alternate 
payee with a greater right to designate a beneficiary for the alternate 
payee's benefit amount than the participant's right. The QJSA or QPSA 
provisions of section 417 do not apply to the spouse of an alternate 
payee.
    (C) If the former spouse who is treated as a current spouse dies 
prior to the participant's annuity starting date, then any actual 
current spouse of the participant is treated as the current spouse, 
except as otherwise provided in a QDRO.
    (iv) Section 415 requirements. Even though a participant's benefits 
are awarded to an alternate payee pursuant to a QDRO, the benefits are 
benefits of the participant for purposes of applying the limitations of 
section 415 to the participant's benefits.

[T.D. 7534, 43 FR 6943, Feb. 17, 1978, as amended by T.D. 8219, 53 FR 
31850, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988]



Sec. 1.401(a)-14   Commencement of benefits under qualified trusts.

    (a) In general. Under section 401(a)(14), a trust to which section 
411 applies (without regard to section 411(e)(2) is not qualified under 
section 401 unless the plan of which such trust is a part provides that 
the payment of benefits under the plan to the participant will begin not 
later than the 60th day after the close of the plan year in which the 
latest of the following events occurs--
    (1) The attainment by the participant of age 65, or, if earlier, the 
normal retirement age specified under the plan,
    (2) The 10th anniversary of the date on which the participant 
commenced participation in the plan,
    (3) The termination of the participant's service with the employer, 
or
    (4) The date specified in an election made pursuant to paragraph (b) 
of this section.

Notwithstanding the preceding sentence, a plan may require that a 
participant file a claim for benefits before payment of benefits will 
commence.
    (b) Election of later date--(1) General rule. A plan may permit a 
participant to elect that the payment to him of any benefit under a plan 
will commence at a date later than the dates specified under paragraphs 
(a)(1), (2), and (3) of this section.
    (2) Manner of election. A plan permitting an election under this 
paragraph shall require that such election must be made by submitting to 
the plan administrator a written statement, signed by the participant, 
which describes the benefit and the date on which the payment of such 
benefit shall commence.
    (3) Restriction. An election may not be made pursuant to a plan 
provision permitted by this paragraph if the exercise of such election 
will cause benefits payable under the plan with respect to the 
participant in the event of his death to be more than ``incidental''

[[Page 74]]

within the meaning of paragraph (b)(1)(i) of Sec. 1.401-1.
    (c) Special early retirement rule--(1) Separation prior to early 
retirement age. A trust forming part of a plan which provides for the 
payment of an early retirement benefit is not qualified under section 
401 unless, upon satisfaction of the age requirement for such early 
retirement benefit, a participant who--
    (i) Satisfied the service requirements for such early retirement 
benefit, but
    (ii) Separated from service (with any nonforfeitable right to an 
accrued benefit) before satisfying such age requirement,

is entitled to receive not less than the reduced normal retirement 
benefit described in paragraph (c)(2) of this section. A plan may 
establish reasonable conditions for payments of early retirement 
benefits (including for example, a requirement that a claim for benefits 
be made) if the conditions are equally applicable to participants who 
separate from service when eligible for an early retirement benefit and 
participants who separate from service earlier.
    (2) Reduced normal retirement benefit. For purposes of this section, 
the reduced normal retirement benefit is the benefit to which the 
participant would have been entitled under the plan at normal retirement 
age, reduced in accordance with reasonable actuarial assumptions.
    (3) Separation prior to effective date of this section. The 
provisions of this paragraph shall not apply in the case of a plan 
participant who separates from service before attainment of early 
retirement age and prior to the effective date of this section set forth 
in paragraph (e) of this section.
    (4) Illustration. The provisions of this paragraph may be 
illustrated by the following example:

    Example. The X Corporation Defined Benefit Plan provides that a 
normal retirement benefit will be payable to a participant upon 
attainment of age 65. The plan also provides that an actuarially reduced 
retirement benefit will be payable, upon application, to any participant 
who has completed 10 years of service with the X Corporation and 
attained age 60. When he is 55 years of age and has completed 10 years 
of service with X Corporation, A, a participant in the plan, leaves the 
service of X Corporation and does not return. The plan will not be 
qualified under section 401 unless, upon attainment of age 60 and 
application for benefits, A is entitled to receive a reduced normal 
retirement benefit described in subparagraph (2) of this paragraph.

    (d) Retroactive payment rule. If the amount of the payment required 
to commence on the date determined under this section cannot be 
ascertained by such date, or if it is not possible to make such payment 
on such date because the plan administrator has been unable to locate 
the participant after making reasonable efforts to do so, a payment 
retroactive to such date may be made no later than 60 days after the 
earliest date on which the amount of such payment can be ascertained 
under the plan or the date on which the participant is located 
(whichever is applicable).
    (e) Effective date. This section shall apply to a plan for those 
plan years to which section 411 of the Code applies without regard to 
section 411(e)(2).

(Secs. 401(a)(14), 7805, Internal Revenue Code of 1954 (88 Stat. 937, 
68A Stat. 917; 26 U.S.C. 401(a)(14), 7805))

[T.D. 7436, 41 FR 42651, Sept. 28, 1976; 41 FR 44690, Oct. 12, 1976]



Sec. 1.401(a)-15   Requirement that plan benefits are not decreased on account of certain Social Security increases.

    (a) In general. Under section 401(a)(15), a trust which is part of a 
plan to which section 411 applies (without regard to section 411(e)(2)) 
is not qualified under section 401 unless, under the plan of which such 
trust is a part:
    (1) Benefit being received by participant or beneficiary. A benefit 
(including a death or disability benefit) being received under the plan 
by a participant or beneficiary (other than a participant to whom 
subparagraph (2)(ii) of this paragraph applies, or a beneficiary of such 
a participant) is not decreased by reason of any post-separation social 
security benefit increase effective after the later of--
    (i) September 2, 1974, or
    (ii) The date of first receipt of any retirement benefit, death 
benefit, or disability benefit under the plan by the participant or by a 
beneficiary of the

[[Page 75]]

participant (whichever receipt occurs first).
    (2) Benefit to which participant separated from service has 
nonforfeitable right. In the case of a benefit to which a participant 
has a nonforfeitable right under such plan--
    (i) If such participant is separated from service and does not 
subsequently return to service and resume participation in the plan, 
such benefit is not decreased by reason of any post-separation social 
security benefit increase effective after the later of September 2, 
1974, or separation from service, or
    (ii) If such participant is separated from service and subsequently 
returns to service and resumes participation in the plan, such benefit 
is not decreased by reason of any post-separation social security 
benefit increase effective after September 2, 1974, which occurs during 
separation from service and which would decrease such benefit to a level 
below the level of benefits to which he would have been entitled had he 
not returned to service after his separation.
    (b) Post-separation social security benefit increase. For purposes 
of this section, the term ``post-separation social security benefit 
increase'' means, with respect to a participant or a beneficiary of the 
participant, an increase in a benefit level or wage base under title II 
of the Social Security Act (whether such increase is a result of an 
amendment of such title II or is a result of the application of the 
provisions of such title II) occurring after the earlier of such 
participant's separation from service or commencement of benefits under 
the plan.
    (c) Illustrations. The provisions of paragraphs (a) and (b) of this 
section may be illustrated by the following examples:

    Example (1). A plan to which section 401(a)(15) applies provides an 
annual benefit at the normal retirement age, 65, in the form of a stated 
benefit formula amount less a specified percentage of the primary 
insurance amount payable under title II of the Social Security Act. The 
plan provides no early retirement benefits. In the case of a participant 
who separates from service before age 65 with a nonforfeitable right to 
a benefit under the plan, the plan defines the primary insurance amount 
as the amount which the participant is entitled to receive under title 
II of the Social Security Act at age 65, multiplied by the ratio of the 
number of years of service with the employer to the number of years of 
service the participant would have had if he had worked for the employer 
until age 65. The plan does not satisfy the requirements of section 
401(a)(15), because social security increases that occur after a 
participant's separation from service will reduce the benefit the 
participant will receive under the plan.
    Example (2). A plan to which section 401(a)(15) applies provides an 
annual benefit at the normal retirement age, 65, in the form of a stated 
benefit formula amount less a specified percentage of the primary 
insurance amount payable under title II of the Social Security Act. The 
plan provides no early retirement benefits. In the case of a participant 
who separates from service before age 65 with a nonforfeitable right to 
a benefit under the plan, the plan defines the primary insurance amount 
as the amount which the participant is entitled to receive under title 
II of the Social Security Act at age 65 based upon the assumption that 
he will continue to receive until reaching age 65 compensation which 
would be treated as wages for purposes of the Social Security Act at the 
same rate as he received such compensation at the time he separated from 
service, but determined without regard to any post-separation social 
security benefit increase, multiplied by the ratio of the number of 
years of service with the employer to the number of years of service the 
participant would have had if he had worked for the employer until age 
65. The plan satisfies the requirements of section 401(a)(15), because 
social security increases that occur after a participant's separation 
from service will not reduce the benefit the participant will receive 
under the plan.

    (d) Other Federal or State laws. To the extent applicable, the rules 
discussed in this section will govern classifications under a plan 
supplementing the benefits provided by other Federal or State laws, such 
as the Railroad Retirement Act of 1937. See section 206(b) of the 
Employee Retirement Income Security Act of 1974 (Public Law 93-406, 88 
Stat. 864).
    (e) Effect on prior law. Nothing in this section shall be construed 
as amending or modifying the rules applicable to post-separation social 
security increases prior to September 2, 1974. See paragraph (e) of 
Sec. 1.401-3.
    (f) Effective date. Section 401(a)(15) and this section shall apply 
to a plan only with respect to plan years to which section 411 (relating 
to minimum

[[Page 76]]

vesting standards) is applicable to the plan without regard to section 
411(e)(2).

[T.D. 7434, 41 FR 42650, Sept. 28, 1976]



Sec. 1.401(a)-16  Limitations on benefits and contributions under qualified plans.

    A trust will not be a qualified trust and a plan will not be a 
qualified plan if the plan provides for benefits or contributions which 
exceed the limitations of section 415. Section 415 and the regulations 
thereunder provide rules concerning these limitations on benefits and 
contributions.

[T.D. 7748, 46 FR 1696, Jan. 7, 1981]



Sec. 1.401(a)-19  Nonforfeitability in case of certain withdrawals.

    (a) Application of section. Section 401(a)(19) and this section 
apply to a plan to which section 411(a) applies. (See section 411(e) and 
Sec. 1.411(a)-2 for applicability of section 411).
    (b) Prohibited forfeitures--(1) General rule. A plan to which this 
section applies is not a qualified plan (and a trust forming a part of 
such plan is not a qualified trust) if, under such plan, any part of a 
participant's accrued benefit derived from employer contributions is 
forfeitable solely because a benefit derived from the participant's 
contributions under the plan is voluntarily withdrawn by him after he 
has become a 50 percent vested participant.
    (2) 50 percent vested participant. For purposes of subparagraph (1) 
of this paragraph, a participant is a 50 percent vested participant when 
he has a nonforfeitable right (within the meaning of section 411 and the 
regulations thereunder) to at least 50 percent of his accrued benefit 
derived from employer contributions. Whether or not a participant is 50 
percent vested shall be determined by the ratio of the participant's 
total nonforfeitable employer-derived accrued benefit under the plan to 
his total employer-derived accrued benefit under the plan.
    (3) Certain forfeitures. Paragraph (b)(1) of this section does not 
apply in the case of a forfeiture permitted by section 411(a)(3)(D)(iii) 
and Sec. 1.411(a)-7(d)(3) (relating to forfeitures of certain benefits 
accrued before September 2, 1974).
    (c) Supersession. Section 11.401(a)-(19) of the Temporary Income Tax 
Regulations under the Employee Retirement Income Security Act of 1974 is 
superseded by this section.

(Sec. 411 Internal Revenue Code of 1954 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42320, Aug. 23, 1977]



Sec. 1.401(a)-20  Requirements of qualified joint and survivor annuity and qualified preretirement survivor annuity.

    Q-1: What are the survivor annuity requirements added to the Code by 
the Retirement Equity Act of 1984 (REA 1984)?
    A-1: REA 1984 replaced section 401(a)(11) with a new section 
401(a)(11) and added section 417. Plans to which new section 401(a)(11) 
applies must comply with the requirements of sections 401(a)(11) and 417 
in order to remain qualified under sections 401(a) or 403(a). In 
general, these plans must provide both a qualified joint and survivor 
annuity (QJSA) and a qualified preretirement survivor annuity (QPSA) to 
remain qualified. These survivor annuity requirements are applicable to 
any benefit payable under a plan, including a benefit payable to a 
participant under a contract purchased by the plan and paid by a third 
party.
    Q-2: Must annuity contracts purchased and distributed to a 
participant or spouse by a plan subject to the survivor annuity 
requirements of sections 401(a)(11) and 417 satisfy the requirements of 
those sections?
    A-2: Yes. Rights and benefits under section 401(a)(11) or 417 may 
not be eliminated or reduced because the plan uses annuity contracts to 
provide benefits merely because (a) such a contract is held by a 
participant or spouse instead of a plan trustee, or (b) such contracts 
are distributed upon plan termination. Thus, the requirements of 
sections 401(a)(11) and 417 apply to payments under the annuity 
contracts, not to the distributions of the contracts.
    Q-3: What plans are subject to the survivor annuity requirements of 
section 401(a)(11)?
    A-3: (a) Section 401(a)(11) applies to any defined benefit plan and 
to any defined contribution plan that is subject to the minimum funding 
standards of

[[Page 77]]

section 412. This section also applies to any participant under any 
other defined contribution plan unless all of the following conditions 
are satisfied--
    (1) The plan provides that the participant's nonforfeitable accrued 
benefit is payable in full, upon the participant's death, to the 
participant's surviving spouse (unless the participant elects, with 
spousal consent that satisfies the requirements of section 417(a)(2), 
that such benefit be provided instead to a designated beneficiary);
    (2) The participant does not elect the payment of benefits in the 
form of a life annuity; and
    (3) With respect to the participant, the plan is not a transferee or 
an offset plan. (See Q&A 5 of this section.)
    (b) A defined contribution plan not subject to the minimum funding 
standards of section 412 will not be treated as satisfying the 
requirement of paragraph (a)(1) unless both of the following conditions 
are satisfied--
    (1) The benefit is available to the surviving spouse within a 
reasonable time after the participant's death. For this purpose, 
availability within the 90-day period following the date of death is 
deemed to be reasonable and the reasonableness of longer periods shall 
be determined based on the particular facts and circumstances. A time 
period longer than 90 days, however, is deemed unreasonable if it is 
less favorable to the surviving spouse than any time period under the 
plan that is applicable to other distributions. Thus, for example, the 
availability of a benefit to the surviving spouse would be unreasonable 
if the distribution was required to be made by the close of the plan 
year including the participant's death while distributions to employees 
who separate from service were required to be made within 90 days of 
separation.
    (2) The benefit payable to the surviving spouse is adjusted for 
gains or losses occurring after the participant's death in accordance 
with plan rules governing the adjustment of account balances for other 
plan distributions. Thus, for example, the plan may not provide for 
distributions of an account balance to a surviving spouse determined as 
of the last day of the quarter in which the participant's death occurred 
with no adjustments of an account balance for gains or losses after 
death if the plan provides for such adjustments for a participant who 
separates from service within a quarter.
    (c) For purposes of determining the extent to which section 
401(a)(11) applies to benefits under an employee stock ownership plan 
(as defined in section 4975(e)(7)), the portion of a participant's 
accrued benefit that is subject to section 409(h) is to be treated as 
though such benefit were provided under a defined contribution plan not 
subject to section 412.
    (d) The requirements set forth in section 401(a)(11) apply to other 
employee benefit plans that are covered by applicable provisions under 
Title I of the Employee Retirement Income Security Act of 1974. For 
purposes of applying the regulations under sections 401(a)(11) and 417, 
plans subject to ERISA section 205 are treated as if they were described 
in section 401(a). For example, to the extent that section 205 covers 
section 403(b) contracts and custodial accounts they are treated as 
section 401(a) plans. Individual retirement plans (IRAs), including IRAs 
to which contributions are made under simplified employee pensions 
described in section 408(k) and IRAs that are treated as plans subject 
to Title I, are not subject to these requirements.
    Q-4: What rules apply to a participant who elects a life annuity 
option under a defined contribution plan not subject to section 412?
    A-4: If a participant elects at any time (irrespective of the 
applicable election period defined in section 417(a)(6)) a life annuity 
option under a defined contribution plan not subject to section 412, the 
survivor annuity requirements of sections 401(a)(11) and 417 will always 
thereafter apply to all of the participant's benefits under such plan 
unless there is a separate accounting of the account balance subject to 
the election. A plan may allow a participant to elect an annuity option 
prior to the applicable election period described in section 417(a)(6). 
If a participant elects an annuity option, the plan must satisfy the 
applicable written explanation, consent, election, and withdrawal rules 
of section 417, including waiver of the QJSA within 90 days

[[Page 78]]

of the annuity starting date. If a participant selecting such an option 
dies, the surviving spouse must be able to receive the QPSA benefit 
described in section 417(c)(2) which is a life annuity, the actuarial 
equivalent of which is not less than 50 percent of the nonforfeitable 
account balance (adjusted for loans as described in Q&A 24(d) of this 
section). The remaining account balance may be paid to a designated 
nonspouse beneficiary.
    Q-5: How do sections 401(a)(11) and 417 apply to transferee plans 
which are defined contribution plans not subject to section 412?
    A-5: (a) Transferee plans. Although the survivor annuity 
requirements of sections 401(a)(11) and 417 generally do not apply to 
defined contribution plans not subject to section 412, such plans are 
subject to the survivor annuity requirements to the extent that they are 
transferee plans with respect to any participant. A defined contribution 
plan is a transferee plan with respect to any participant if the plan is 
a direct or indirect transferee of such participant's benefits held on 
or after January 1, 1985, by:
    (1) A defined benefit plan,
    (2) A defined contribution plan subject to section 412 or
    (3) A defined contribution plan that is subject to the survivor 
annuity requirements of sections 401(a)(11) and 417 with respect to that 
participant.

If through a merger, spinoff, or other transaction having the effect of 
a transfer, benefits subject to the survivor annuity requirements of 
sections 401(a)(11) and 417 are held under a plan that is not otherwise 
subject to such requirements, such benefits will be subject to the 
survivor annuity requirements even though they are held under such plan. 
Even if a plan satisfies the survivor annuity requirements, other rules 
apply to these transactions. See, e.g., section 411(d)(6) and the 
regulations thereunder. A transfer made before January 1, 1985, and any 
rollover contribution made at any time, are not transactions that 
subject the transferee plan to the survivor annuity requirements with 
respect to a participant. If a plan is a transferee plan with respect to 
a participant, the survivor annuity requirements do not apply with 
respect to other plan participants solely because of the transfer. Any 
plan that would not otherwise be subject to the survivor annuity 
requirements of sections 401(a)(11) and 417 whose benefits are used to 
offset benefits in a plan subject to such requirements is subject to the 
survivor annuity requirements with respect to those participants whose 
benefits are offset. Thus, if a stock bonus or profit-sharing plan 
offsets benefits under a defined benefit plan, such a plan is subject to 
the survivor annuity requirements.
    (b) Benefits covered. The survivor annuity requirements apply to all 
accrued benefits held for a participant with respect to whom the plan is 
a transferee plan unless there is an acceptable separate accounting 
between the transferred benefits and all other benefits under the plan. 
A separate accounting is not acceptable unless gains, losses, 
withdrawals, contributions, forfeitures, and other credits or charges 
are allocated on a reasonable and consistent basis between the accrued 
benefits subject to the survivor annuity requirements and other 
benefits. If there is an acceptable separate accounting between 
transferred benefits and any other benefits under the plan, only the 
transferred benefits are subject to the survivor annuity requirements.
    Q-6: Is a frozen or terminated plan required to satisfy the survivor 
annuity requirements of sections 401(a)(11) and 417?
    A-6: In general, benefits provided under a plan that is subject to 
the survivor annuity requirements of sections 401(a)(11) and 417 must be 
provided in accordance with those requirements even if the plan is 
frozen or terminated. However, any plan that has a termination date 
prior to September 17, 1985, and that distributed all remaining assets 
as soon as administratively feasible after the termination date, is not 
subject to the survivor annuity requirements. The date of termination is 
determined under section 411(d)(3) and Sec. 1.411(d)-2(c).
    Q-7: If the Pension Benefit Guaranty Corporation (PBGC) is 
administering a plan, are benefits payable in the form of a QPSA or 
QJSA-

[[Page 79]]

    A-7: Yes, the PBGC will pay benefits in such forms.
    Q-8: How do the survivor annuity requirements of sections 401(a)(11) 
and 417 apply to participants?
    A-8: (a) If a participant dies before the annuity starting date with 
vested benefits attributable to employer or employee contributions (or 
both), benefits must be paid to the surviving spouse in the form of a 
QPSA. If a participant survives until the annuity starting date with 
vested benefits attributable to employer or employee contributions (or 
both), benefits must be provided to the participant in the form of a 
QJSA.
    (b) A participant may waive the QPSA or the QJSA (or both) if the 
applicable notice, election, and spousal consent requirements of section 
417 are satisfied.
    (c) Benefits are not required to be paid in the form of a QPSA or 
QJSA if at the time of death or distribution the participant was vested 
only in employee contributions and such death occurred, or distribution 
commenced, before October 22, 1986.
    (d) Certain mandatory distributions. A distribution may occur 
without satisfying the spousal consent requirements of section 417 (a) 
and (e) if the present value of the nonforfeitable benefit does not 
exceed $3,500. See Sec. 1.417(e)-1.
    Q-9: May separate portions of a participant's accrued benefit be 
subject to QPSA and QJSA requirements at any particular point in time?
    A-9: (a) Dual QPSA and QJSA rights. One portion of a participant's 
benefit may be subject to the QPSA and another portion to the QJSA 
requirements at the same time. For example, in order for a money 
purchase pension plan to distribute any portion of a married 
participant's benefit to the participant, the plan must distribute such 
portion in the form of a QJSA (unless the plan satisfies the applicable 
consent requirements of section 417 (a) and (e) with respect to such 
portion of the participant's benefit). This rule applies even if the 
distribution is merely an in-service distribution attributable to 
voluntary employee contributions and regardless of whether the 
participant has attained the normal retirement age under the plan. The 
QJSA requirements apply to such a distribution because the annuity 
starting date has occurred with respect to this portion of the 
participant's benefit. In the event of a participant's death following 
the commencement of a distribution in the form of a QJSA, the remaining 
payments must be made to the surviving spouse under the QJSA. In 
addition, the plan must satisfy the QPSA requirements with respect to 
any portion of the participant's benefits for which the annuity starting 
date had not yet occurred.

    (b) Example. Assume that participant A has a $100,000 account 
balance in a money purchase pension plan. A makes an in-service 
withdrawal of $20,000 attributable to voluntary employee contributions. 
The QJSA requirements apply to A's withdrawal of the $20,000. 
Accordingly, unless the QJSA form is properly waived such amount must be 
distributed in the form of a QJSA. A's remaining account balance 
($80,000) remains subject to the QPSA requirements because the annuity 
starting date has not occurred with respect to the $80,000. (If A 
survives until the annuity starting date, the $80,000 would be subject 
to the QJSA requirements.) If A died on the day following the annuity 
starting date for the withdrawal, A's spouse would be entitled to a QPSA 
with a value equal to at least $40,000 with respect to the $80,000 
account balance, in addition to any survivor benefit without respect to 
the $20,000. If the $20,000 payment to A had been the first payment of 
an annuity purchased with the entire $100,000 account balance rather 
than an in-service distribution, then the QJSA requirements would apply 
to the entire account balance at the time of the annuity starting date. 
In such event, the plan would have no obligation to provide A's spouse 
with a QPSA benefit upon A's death. Of course, A's spouse would receive 
the QJSA benefit (if the QJSA had not been waived) based on the full 
$100,000.

    Q-10: What is the relevance of the annuity starting date with 
respect to the survivor benefit requirements?
    A-10: (a) Relevance. The annuity starting date is relevant to 
whether benefits are payable as either a QJSA or QPSA, or other selected 
optional form of benefit. If a participant is alive on the annuity 
starting date, the benefits must be payable as a QJSA. If the 
participant is not alive on the annuity starting date, the surviving 
spouse must receive a QPSA. The annuity starting date is also used to 
determine when a spouse may consent to and a

[[Page 80]]

participant may waive a QJSA. A waiver is only effective if it is made 
90 days before the annuity starting date. Thus, a deferred annuity 
cannot be selected and a QJSA waived until 90 days before payments 
commence under the deferred annuity. In some cases, the annuity starting 
date will have occurred with respect to a portion of the participant's 
accrued benefit and will not have occurred with respect to the remaining 
portion. (See Q&A-9.)
    (b) Annuity starting date--(1) General rule. For purposes of 
sections 401(a)(11), 411(a)(11) and 417, the annuity starting date is 
the first day of the first period for which an amount is paid as an 
annuity or any other form.
    (2) Annuity payments. The annuity starting date is the first date 
for which an amount is paid, not the actual date of payment. Thus, if 
participant A is to receive annuity payments as of the first day of the 
first month after retirement but does not receive any payments until 
three months later, the annuity starting date is the first day of the 
first month. For example, if an annuity is to commence on January 1, 
January 1 is the annuity starting date even though the payment for 
January is not actually made until a later date. In the case of a 
deferred annuity, the annuity starting date is the date for which the 
annuity payments are to commence, not the date that the deferred annuity 
is elected or the date the deferred annuity contract is distributed.
    (3) Administrative delay. A payment shall not be considered to occur 
after the annuity starting date merely because actual payment is 
reasonably delayed for calculation of the benefit amount if all payments 
are actually made.
    (4) Forfeitures on death. Prior to the annuity starting date, 
section 411(a)(3)(A) allows a plan to provide for a forfeiture of a 
participant's benefit, except in the case of a QPSA or a spousal benefit 
described in section 401(a)(11)(B)(iii)(I). Once the annuity starting 
date has occurred, even if actual payment has not yet been made, a plan 
must pay the benefit in the distribution form elected.
    (5) Surviving spouses, alternate payees, etc. The definition of 
``annuity starting date'' for surviving spouses, other beneficiaries and 
alternate payees under section 414(p) is the same as it is for 
participants.
    (c) Disability auxiliary benefit--(1) General rule. The annuity 
starting date for a disability benefit is the first day of the first 
period for which the benefit becomes payable unless the disability 
benefit is an auxiliary benefit. The payment of any auxiliary disability 
benefits is disregarded in determining the annuity starting date. A 
disability benefit is an auxiliary benefit if upon attainment of early 
or normal retirement age, a participant receives a benefit that 
satisfies the accrual and vesting rules of section 411 without taking 
into account the disability benefit payments up to that date.

    (2) Example. (i) Assume that participant A at age 45 is entitled to 
a vested accrued benefit of $100 per month commencing at age 65 in the 
form of a joint and survivor annuity under Plan X. If prior to age 65 A 
receives a disability benefit under Plan X and the payment of such 
benefit does not reduce the amount of A's retirement benefit of $100 per 
month commencing at age 65, any disability benefit payments made to A 
between ages 45 and 65 are auxiliary benefits. Thus, A's annuity 
starting date does not occur until A attains age 65. A's surviving 
spouse B would be entitled to receive a QPSA if A died before age 65. B 
would be entitled to receive the survivor portion of a QJSA (unless 
waived) if A died after age 65. The QPSA payable to B upon A's death 
prior to age 65 would be computed by reference to the QJSA that would 
have been payable to A and B had A survived to age 65.
    (ii) If in the above example A's benefit payable at age 65 is 
reduced to $99 per month because a disability benefit is provided to A 
prior to age 65, the disability benefit would not be an auxiliary 
benefit. The benefit of $99 per month payable to A at age 65 would not, 
without taking into account the disability benefit payments to A prior 
to age 65, satisfy the minimum vesting and accrual rules of section 411. 
Accordingly, the first day of the first period for which the disability 
payments are to be made to A would constitute A's annuity starting date, 
and any benefit paid to A would be required to be paid in the form of a 
QJSA (unless waived by A with the consent of B).

    (d) Other rules--(1) Suspension of benefits. If benefit payments are 
suspended after the annuity starting date pursuant to a suspension of 
benefits described in section 411(a)(3)(B) after an

[[Page 81]]

employee separates from service, the recommencement of benefit payments 
after the suspension is not treated as a new annuity starting date 
unless the plan provides otherwise. In such case, the plan administrator 
is not required to provide new notices nor to obtain new waivers for the 
recommenced distributions if the form of distribution is the same as the 
form that was appropriately selected prior to the suspension. If 
benefits are suspended for an employee who continues in service without 
a separation and who never receives payments, the commencement of 
payments after the period of suspension is treated as the annuity 
starting date unless the plan provides otherwise.
    (2) Additional accruals. In the case of an annuity starting date 
that occurs on or after normal retirement age, such date applies to any 
additional accruals after the annuity starting date, unless the plan 
provides otherwise. For example, if a participant who continues to 
accrue benefits elects to have benefits paid in an optional form at 
normal retirement age, the additional accruals must be paid in the 
optional form selected unless the plan provides otherwise. In the case 
of an annuity starting date that occurs prior to normal retirement age, 
such date does not apply to any additional accruals after such date.
    Q-11: Do the survivor annuity requirements apply to benefits derived 
from both employer and employee contributions?
    A-11: Yes. The survivor annuity benefit requirements apply to 
benefits derived from both employer and employee contributions. Benefits 
are not required to be paid in the form of a QPSA or a QJSA if the 
participant was vested only in employee contributions at the time of 
death or distribution and such death or distribution occurred before 
October 22, 1986. All benefits provided under a plan, including benefits 
attributable to rollover contributions, are subject to the survivor 
annuity requirements.
    Q-12: To what benefits do the survivor annuity requirements of 
sections 401(a)(11) and 417 apply?
    A-12: (a) Defined benefit plans. Under a defined benefit plan, 
sections 401(a)(11) and 417 apply only to benefits in which a 
participant was vested immediately prior to death. They do not apply to 
benefits to which a participant's beneficiary becomes entitled by reason 
of death or to the proceeds of a life insurance contract to the extent 
such proceeds exceed the present value of the participant's 
nonforfeitable benefits that existed immediately prior to death.
    (b) Defined contribution plans. Sections 401(a)(11) and 417 apply to 
all nonforfeitable benefits which are payable under a defined 
contribution plan, whether nonforfeitable before or upon death, 
including the proceeds of insurance contracts.
    Q-13: Does the rule of section 411(a)(3)(A) which permits 
forfeitures on account of death apply to a QPSA or the spousal benefit 
described in section 401(a)(11)(B)(iii)?
    A-13: No. Section 411(a)(3)(A) permits forfeiture on account of 
death prior to the time all the events fixing payment occur. However, 
this provision does not operate to deprive a surviving spouse of a QPSA 
or the spousal benefit described in section 401(a)(11)(B)(iii). 
Therefore, sections 401(a)(11) and 417 apply to benefits that were 
nonforfeitable immediately prior to death (determined without regard to 
section 411(a)(3)(A)). Thus, in the case of the death of a married 
participant in a defined contribution plan not subject to section 412 
which provides that, upon a participant's death, the entire 
nonforfeitable accrued benefit is payable to the participant's spouse, 
the nonforfeitable benefit is determined without regard to the 
provisions of section 411(a)(3)(A).
    Q-14: Do sections 411(a)(11), 401(a)(11) and 417 apply to 
accumulated deductible employee contributions, as defined in section 
72(o)(5)(B) (Accumulated DECs)?
    A-14: (a) Employee consent, section 411. The requirements of section 
411(a)(11) apply to Accumulated DECs. Thus, Accumulated DECs may not be 
distributed without participant consent unless the applicable exemptions 
apply.
    (b) Survior requirements. Accumulated DECs are treated as though 
held under a separate defined contribution plan that is not subject to 
section 412. Thus,

[[Page 82]]

section 401(a)(11) applies to Accumulated DECs only as provided in 
section 401(a)(11)(B)(iii). All Accumulated DECs are treated in this 
manner, including Accumulated DECs that are the only benefit held under 
a plan and Accumulated DECs that are part of a defined benefit or a 
defined contribution plan.
    (c) Effective date. Sections 401(a)(11) and 411(a)(11) shall not 
apply to distributions of accumulated DECs until the first plan year 
beginning after December 31, 1988.
    Q-15: How do the survivor annuity requirements of sections 
401(a)(11) and 417 apply to a defined benefit plan that includes an 
accrued benefit based upon a contribution to a separate account or 
mandatory employee contributions?
    A-15: (a) 414(k) plans. In the case of a section 414(k) plan that 
includes both a defined benefit plan and a separate account, the rules 
of sections 401(a)(11) and 417 apply separately to the defined benefit 
portion and the separate account portion of the plan. The separate 
account portion is subject to the survivor annuity requirements of 
sections 401(a)(11) and 417 and the special QPSA rules in section 
417(c)(2).
    (b) Employee contributions--(1) Voluntary. In the case of voluntary 
employee contributions to a defined benefit plan, the plan must maintain 
a separate account with respect to the voluntary employee contributions. 
This separate account is subject to the survivor annuity requirements of 
sections 401(a)(11) and 417 and the special QPSA rules in section 
417(c)(2).
    (2) Mandatory. In the case of a defined benefit plan providing for 
mandatory employee contributions, the entire accrued benefit is subject 
to the survivor annuity requirements of sections 401(a)(11) and 417 as a 
defined benefit plan.
    (c) Accumulated DECs. See Q&A 14 of this section for the rule 
applicable to accumulated deductible employee contributions.
    Q-16: Can a plan provide a benefit form more valuable than the QJSA 
and if a plan offers more than one annuity option satisfying the 
requirements of a QJSA, is spousal consent required when the participant 
chooses among the various forms?
    A-16: In the case of an unmarried participant, the QJSA may be less 
valuable than other optional forms of benefit payable under the plan. In 
the case of a married participant, the QJSA must be at least as valuable 
as any other optional form of benefit payable under the plan at the same 
time. Thus, if a plan has two joint and survivor annuities that would 
satisfy the requirements for a QJSA, but one has a greater actuarial 
value than the other, the more valuable joint and survivor annuity is 
the QJSA. If there are two or more actuarially equivalent joint and 
survivor annuities that satisfy the requirements for a QJSA, the plan 
must designate which one is the QJSA and, therefore, the automatic form 
of benefit payment. A plan, however, may allow a participant to elect 
out of such a QJSA, without spousal consent, in favor of another 
actuarially equivalent joint and survivor annuity that satisfies the 
QJSA conditions. Such an election is not subject to the requirement that 
it be made within the 90-day period before the annuity starting date. 
For example, if a plan designates a joint and 100% survivor annuity as 
the QJSA and also offers an actuarially equivalent joint and 50% 
survivor annuity that would satisfy the requirements of a QJSA, the 
participant may elect the joint and 50% survivor annuity without spousal 
consent. The participant, however, does need spousal consent to elect a 
joint and survivor annuity that was not actuarially equivalent to the 
automatic QJSA.
    Q-17: When must distributions to a participant under a QJSA 
commence?
    A-17: (a) QJSA benefits upon earliest retirement. A plan must permit 
a participant to receive a distribution in the form of a QJSA when the 
participant attains the earliest retirement age under the plan. Written 
consent of the participant is required. However, the consent of the 
participant's spouse is not required. Any payment not in the form of a 
QJSA is subject to spousal consent. For example, if the participant 
separates from service under a plan that allows for distributions on 
separation from service or if a plan allows for in-service 
distributions, the participant may receive a QJSA without spousal 
consent in such events.

[[Page 83]]

Payments in any other form, including a single sum, would require waiver 
of the QJSA by the participant's spouse.
    (b) Earliest retirement age. (1) This paragraph (b) defines the term 
``earliest retirement age'' for purposes of sections 401(a)(11), 
411(a)(11) and 417.
    (2) In the case of a plan that provides for voluntary distributions 
that commence upon the participant's separation from service, earliest 
retirement age is the earliest age at which a participant could separate 
from service and receive a distribution. Death of a participant is 
treated as a separation from service.
    (3) In the case of a plan that provides for in-service 
distributions, earliest retirement age is the earliest age at which such 
distributions may be made.
    (4) In the case of a plan not described in subparagraph (2) or (3) 
of this paragraph, the rule below applies. Earliest retirement age is 
the early retirement age determined under the plan, or if no early 
retirement age, the normal retirement age determined under the plan. If 
the participant dies or separates from service before such age, then 
only the participant's actual years of service at the time of the 
participant's separation from service or death are taken into account. 
Thus, in the case of a plan under which benefits are not payable until 
the attainment of age 65, or upon attainment of age 55 and completion of 
10 years of service, the earliest retirement age of a participant who 
died or separated from service with 8 years of service is when the 
participant would have attained age 65 (if the participant had 
survived). On the other hand, if a participant died or separated from 
service after 10 years of service, the earliest retirement age is when 
the participant would have attained age 55 (if the participant had 
survived).
    Q-18: What is a qualified preretirement survivor annuity (QPSA) in a 
defined benefit plan?
    A-18: A QPSA is an immediate annuity for the life of the surviving 
spouse of a participant. Each payment under a QPSA under a defined 
benefit plan is not to be less than the payment that would have been 
made to the survivor under the QJSA payable under the plan if (a) in the 
case of a participant who dies after attaining the earliest retirement 
age under the plan, the participant had retired with a QJSA on the day 
before the participant's death, and (b) in the case of a participant who 
dies on or before the participant's earliest retirement age under the 
plan, the participant had separated from service at the earlier of the 
actual time of separation or death, survived until the earliest 
retirement age, retired at that time with a QJSA, and died on the day 
thereafter. If the participant elects before the annuity starting date a 
form of joint and survivor annuity that satisfies the requirements for a 
QJSA and dies before the annuity starting date, the elected form is 
treated as the QJSA and the QPSA must be based on such form.
    Q-19: What rules apply in determining the amount and forfeitability 
of a QPSA?
    A-19: The QPSA is calculated as of the earliest retirement age if 
the participant dies before such time, or at death if the participant 
dies after the earliest retirement age. The plan must make reasonable 
actuarial adjustments to reflect a payment earlier or later than the 
earliest retirement age. A defined benefit plan may provide that the 
QPSA is forfeited if the spouse does not survive until the date 
prescribed under the plan for commencement of the QPSA (i.e., the 
earliest retirement age). Similarly, if the spouse survives past the 
participant's earliest retirement age (or other earlier QPSA 
distribution date under the plan) and elects after the death of the 
participant to defer the commencement of the QPSA to a later date, a 
defined benefit plan may provide for a forfeiture of the QPSA benefit if 
the spouse does not survive until the deferred commencement date. The 
account balance in a defined contribution plan may not be forfeited even 
though the spouse does not survive until the time the account balance is 
used to purchase the QPSA. See   Q&A-17 of this section for the meaning 
of earliest retirement age.
    Q-20: What preretirement survivor annuity benefits must a defined 
contibution plan subject to the survivor annuity requirements of 
sections 401(a)(11) and 417 provide?

[[Page 84]]

    A-20: A defined contribution plan that is subject to the survivor 
annuity requirements of sections 401(a)(11) and 417 must provide a 
preretirement survivor annuity with a value which is not less than 50 
percent of the nonforfeitable account balance of the participant as of 
the date of the participant's death. If a contributory defined 
contribution plan has a forfeiture provision permitted by section 
411(a)(3)(A), not more than a proportional percent of the account 
balance attributable to contributions that may not be forfeited at death 
(for example, employee and section 401(k) contributions) may be used to 
satisfy the QPSA benefit. Thus, for example, if the QPSA benefit is to 
be provided from 50 percent of the account balance, not more than 50 
percent of the nonforfeitable contributions may be used for the QPSA.
    Q-21: May a defined benefit plan charge the participant for the cost 
of the QPSA benefit?
    A-21: Prior to the later of the time the plan allows the participant 
to waive the QPSA or provides notice of the ability to waive the QPSA, a 
defined benefit plan may not charge the participant for the cost of the 
QPSA by reducing the participant's plan benefits or by any other method. 
The preceding sentence does not apply to any charges prior to the first 
plan year beginning after December 31, 1988. Once the participant is 
given the opportunity to waive the QPSA or the notice of the QPSA is 
later, the plan may charge the participant for the cost of the QPSA. A 
charge for the QPSA that reasonably reflects the cost of providing the 
QPSA will not fail to satisfy section 411 even if it reduces the accrued 
benefit.
    Q-22: When must distributions to a surviving spouse under a QPSA 
commence?
    A-22: (a) In the case of a defined benefit plan, the plan must 
permit the surviving spouse to direct the commencement of payments under 
QPSA no later than the month in which the participant would have 
attained the earliest retirement age. However, a plan may permit the 
commencement of payments at an earlier date.
    (b) In the case of a defined contribution plan, the plan must permit 
the surviving spouse to direct the commencement of payments under the 
QPSA within a reasonable time after the participant's death.
    Q-23: Must a defined benefit plan obtain the consent of a 
participant and the participant's spouse to commence payments in the 
form of a QJSA in order to avoid violating section 415 or 411(b)?
    A-23: No. A defined benefit plan may commence distributions in the 
form of a QJSA without the consent of the participant and spouse, even 
if consent would otherwise be required (see Sec. 1.417(e)-1(b)), to the 
extent necessary to avoid a violation of section 415 or 411(b). For 
example, assume a plan has a normal retirement age of 55. A is a married 
participant, age 55, and has accrued a $75,000 joint and 100 percent 
survivor annuity that satisfies section 415. If an actuarial increase 
would be required under section 411 because of deferred commencement and 
the increase would cause the benefit to exceed the applicable limit 
under section 415, the plan may commence payment of a QJSA at age 55 
without the participant's election or consent and without the spouse's 
concent.
    Q-24: What are the rules under sections 401(a)(11) and 417 
applicable to plan loans?
    A-24: (a) Consent rules. (1) A plan does not satisfy the survivor 
annuity requirements of sections 401(a)(11) and 417 unless the plan 
provides that, at the time the participant's accrued benefit is used as 
security for a loan, spousal consent to such use is obtained. Consent is 
required even if the accrued benefit is not the primary security for the 
loan. No spousal consent is necessary if, at the time the loan is 
secured, no consent would be required for a distribution under section 
417(a)(2)(B). Spousal consent is not required if the plan or the 
participant is not subject to section 401(a)(11) at the time the accrued 
benefit is used as security, or if the total accrued benefit subject to 
the security is not in excess of $3,500. The spousal consent must be 
obtained no earlier than the beginning of the 90-day period that ends on 
the date on which the loan is to be so secured. The consent is subject 
to the requirements of section 417(a)(2). Therefore, the consent must be 
in writing,

[[Page 85]]

must acknowledge the effect of the loan and must be witnessed by a plan 
representative or a notary public.
    (2) Participant consent is deemed obtained at the time the 
participant agrees to use his accrued benefit as security for a loan for 
purposes of satisfying the requirements for participant consent under 
sections 401(a)(11), 411(a)(11) and 417.
    (b) Change in status. If spousal consent is obtained or is not 
required under paragraph (a) of this Q&A 24 at the time the benefits are 
used as security, spousal consent is not required at the time of any 
setoff of the loan against the accrued benefit resulting from a default, 
even if the participant is married to a different spouse at the time of 
the setoff. Similarly, in the case of a participant who secured a loan 
while unmarried, no consent is required at the time of a setoff of the 
loan against the accrued benefit even if the participant is married at 
the time of the setoff.
    (c) Renegotiation. For purposes of obtaining any required spousal 
consent, any renegotiation, extension, renewal, or other revision of a 
loan shall be treated as a new loan made on the date of the 
renegotiation, extension, renewal, or other revision.
    (d) Effect on benefits. For purposes of determining the amount of a 
QPSA or QJSA, the accrued benefit of a participant shall be reduced by 
any security interest held by the plan by reason of a loan outstanding 
to the participant at the time of death or payment, if the security 
interest is treated as payment in satisfaction of the loan under the 
plan. A plan may offset any loan outstanding at the participant's death 
which is secured by the participant's account balance against the 
spousal benefit required to be paid under section 401(a)(11)(B)(iii).
    (e) Effective date. Loans made prior to August 19, 1985, are deemed 
to satisfy the consent requirements of paragraph (a) of this Q&A 24.
    Q-25: How do the survivor annuity requirements of sections 
401(a)(11) and 417 apply with respect to participants who are not 
married or to surviving spouses and participants who have a change in 
marital status?
    A-25: (a) Unmarried participant rule. Plans subject to the survivor 
annuity requirements of sections 401(a)(11) and 417 must satisfy those 
requirements applicable to QJSAs with respect to participants who are 
not married. A QJSA for a participant who is not married is an annuity 
for the life of the participant. Thus, an unmarried participant must be 
provided the written explanation described in section 417(a)(3)(A) and a 
single life annuity unless another form of benefit is elected by the 
participant. An unmarried participant is deemed to have waived the QPSA 
requirements. This deemed waiver is null and void if the participant 
later marries.
    (b) Marital status change.--(1) Remarriage. If a participant is 
married on the date of death, payments to a surviving spouse under a 
QPSA or QJSA must continue even if the surviving spouse remarries.
    (2) One-year rule. (i) A plan is not required to treat a participant 
as married unless the participant and the participant's spouse have been 
married throughout the one-year period ending on the earlier of (A) the 
participant's annuity starting date or (B) the date of the participant's 
death. Nevertheless, for purposes of the preceding sentence, a 
participant and the participant's spouse must be treated as married 
throughout the one-year period ending on the participant's annuity 
starting date even though they are married to each other for less than 
one year before the annuity starting date if they remain married to each 
other for at least one year. See section 417(d)(2). If a plan adopts the 
one-year rule provided in section 417(d), the plan must treat the 
participant and spouse who are married on the annuity starting date as 
married and must provide benefits which are to commence on the annuity 
starting date in the form of a QJSA unless the participant (with spousal 
consent) elects another form of benefit. The plan is not required to 
provide the participant with a new or retroactive election or the spouse 
with a new consent when the one-year period is satisfied. If the 
participant and the spouse do not remain married for at least one year, 
the plan may treat the participant as

[[Page 86]]

having not been married on the annuity starting date. In such event, the 
plan may provide that the spouse loses any survivor benefit right; 
further, no retroactive correction of the amount paid the participant is 
required.

    (ii) Example. Plan X provides that participants who are married on 
the annuity starting date for less than one year are treated as 
unmarried participants. Plan X provides benefits in the form of a QJSA 
or an optional single sum distribution. Participant A was married 6 
months prior to the annuity starting date. Plan X must treat A as 
married and must commence payments to A in the form of a QJSA unless 
another form of benefit is elected by A with spousal consent. If a QJSA 
is paid and A is divorced from his spouse S, within the first year of 
the marriage, S will no longer have any survivor rights under the 
annuity (unless a QDRO provides otherwise). If A continues to be married 
to S, and A dies within the one-year period, Plan X may treat A as 
unmarried and forfeit the OJSA benefit payable to S.

    (3) Divorce. If a participant divorces his spouse prior to the 
annuity starting date, any elections made while the participant was 
married to his former spouse remain valid, unless otherwise provided in 
a QDRO, or unless the participant changes them or is remarried. If a 
participant dies after the annuity starting date, the spouse to whom the 
participant was married on the annuity starting date is entitled to the 
QJSA protection under the plan. The spouse is entitled to this 
protection (unless waived and consented to by such spouse) even if the 
participant and spouse are not married on the date of the participant's 
death, except as provided in a QDRO.
    Q-26: In the case of a defined contribution plan not subject to 
section 412, does the requirement that a participant's nonforfeitable 
accrued benefit be payable in full to a surviving spouse apply to a 
spouse who has been married to the participant for less than one year?
    A-26: A plan may provide that a spouse who has not been married to a 
participant throughout the one-year period ending on the earlier of (a) 
the participant's annuity starting date or (b) the date of the 
participant's death is not treated as a surviving spouse and is not 
required to receive the participant's account balance. The special 
exception described in section 417(d)(2) and Q&A 25 of this section does 
not apply.
    Q-27: Are there circumstances when spousal consent to a 
participant's election to waive the QJSA or the QPSA is not required?
    A-27: Yes. If it is established to the satisfaction of a plan 
representative that there is no spouse or that the spouse cannot be 
located, spousal consent to waive the QJSA or the QPSA is not required. 
If the spouse is legally incompetnent to give consent, the spouse's 
legal guardian, even if the guardian is the participant, may give 
consent. Also, if the participant is legally separated or the 
participant has been abandoned (within the meaning of local law) and the 
participant has a court order to such effect, spousal consent is not 
required unless a QDRO provides otherwise. Similar rules apply to a plan 
subject to the requirements of section 401(a)(11)(B)(iii)(I).
    Q-28: Does consent contained in an antenuptial agreement or similar 
contract entered into prior to marriage satisfy the consent requirements 
of sections 401(a)(11) and 417?
    A-28: No. An agreement entered into prior to marriage does not 
satisfy the applicable consent requirements, even if the agreement is 
executed within the applicable election period.
    Q-29: If a participant's spouse consents under section 417(a)(2)(A) 
to the participant's waiver of a survivor annuity form of benefit, is a 
subsequent spouse of the same participant bound by the consent?
    A-29: No. A consent under section 417(a)(2)(A) by one spouse is 
binding only with respect to the consenting spouse. See Q&A-24 of this 
section for an exception in the case of plan benefits securing plan 
loans.
    Q-30: Does the spousal consent requirement of section 417(a)(2)(A) 
require that a spouse's consent be revocable?
    A-30: No. A plan may preclude a spouse from revoking consent once it 
has been given. Alternatively, a plan may also permit a spouse to revoke 
a consent after it has been given, and thereby to render ineffective the 
participant's prior election not to receive a QPSA or QJSA. A 
participant must

[[Page 87]]

always be allowed to change his election during the applicable election 
period. Spousal consent is required in such cases to the extent provided 
in Q&A 31, except that spousal consent is never required for a QJSA or 
QPSA.
    Q-31: What rules govern a participant's waiver of a QPSA or QJSA 
under section 417(a)(2)?
    A-31: (a) Specific beneficiary. Both the participant's waivers of a 
QPSA and QJSA and the spouse's consents thereto must state the specific 
nonspouse beneficiary (including any class of beneficiaries or any 
contingent beneficiaries) who will receive the benefit. Thus, for 
example, if spouse B consents to participant A's election to waive a 
QPSA, and to have any benefits payable upon A's death before the annuity 
starting date paid to A's children, A may not subsequently change 
beneficiaries without the consent of B (except if the change is back to 
a QPSA). If the designated beneficiary is a trust, A's spouse need only 
consent to the designation of the trust and need not consent to the 
designation of trust beneficiaries or any changes of trust 
beneficiaries.
    (b) Optional form of benefit--(1) QJSA. Both the participant's 
waiver of a QJSA (and any required spouse's consent thereto) must 
specify the particular optional form of benefit. The participant who has 
waived a QJSA with the spouse's consent in favor of another form of 
benefit may not subsequently change the optional form of benefit without 
obtaining the spouse's consent (except back to a QJSA). Of course, the 
participant may change the form of benefit if the plan so provides after 
the spouse's death or a divorce (other than as provided in a QDRO). A 
participant's waiver of a QJSA (and any required spouse's consent 
thereto) made prior to the first plan year beginning after December 31, 
1986, is not required to specify the optional form of benefit.
    (2) QPSA. A participant's waiver of a QPSA and the spouse's consent 
thereto are not required to specify the optional form of any 
preretirement benefit. Thus, a participant who waives the QPSA with 
spousal consent may subsequently change the form of the preretirement 
benefit, but not the nonspouse beneficiary, without obtaining the 
spouse's consent.
    (3) Change in form. After the participant's death, a beneficiary may 
change the optional form of survivor benefit as permitted by the plan.
    (c) General consent. In lieu of satisfying paragraphs (a) and (b) of 
this Q&A 31, a plan may permit a spouse to execute a general consent 
that satisfies the requirements of this paragraph (c). A general consent 
permits the participant to waive a QPSA or QJSA, and change the 
designated beneficary or the optional form of benefit payment without 
any requirement of further consent by such spouse. No general consent is 
valid unless the general consent acknowledges that the spouse has the 
right to limit consent to a specific beneficiary and a specific optional 
form of benefit, where applicable, and that the spouse voluntarily 
elects to relinquish both of such rights. Notwithstanding the previous 
sentence, a spouse may execute a general consent that is limited to 
certain beneficiaries or forms of benefit payment. In such case, 
paragraphs (a) and (b) of this Q&A 31 shall apply to the extent that the 
limited general consent is not applicable and this paragraph (c) shall 
apply to the extent that the limited general consent is applicable. A 
general consent, including a limited general consent, is not effective 
unless it is made during the applicable election period. A general 
consent executed prior to October 22, 1986 does not have to satisfy the 
specificity requirements of this Q&A 31.
    Q-32: What rules govern a participant's waiver of the spousal 
benefit under section 401(a)(11)(B)?
    A-32: (a) Application. In the case of a defined contribution plan 
that is not subject to the survivor annuity requirements of sections 
401(a)(11) and 417, a participant may waive the spousal benefit of 
section 401(a)(11)(B)(iii) if the conditions of paragraph (b) are 
satisfied. In general, a spousal benefit is the nonforfeitable account 
balance on the participant's date of death.
    (b) Conditions. In general, the same conditions, other than the age 
35 requirement, that apply to the participant's waiver of a QPSA and the 
spouse's consent thereto apply to the

[[Page 88]]

participant's waiver of the spousal benefit and the spouse's consent 
thereto. See Q&A-31. Thus, the participant's waiver of the spousal 
benefit must state the specific nonspouse beneficiary who will receive 
such benefit. The waiver is not required to specify the optional form of 
benefit. The participant may change the optional form of benefit, but 
not the nonspouse beneficiary, without obtaining the spouse's consent.
    Q-33: When and in what manner, may a participant waive a spousal 
benefit or a QPSA?
    A-33: (a) Plans not subject to section 401(a)(11). A participant in 
a plan that is not subject to the survivor annuity requirements of 
section 401(a)(11) (because of subparagraph (B)(iii) thereof) may waive 
the spousal benefit at any time, provided that no such waiver shall be 
effective unless the spouse has consented to the waiver. The spouse may 
consent to a waiver of the spousal benefit at any time, even prior to 
the participant's attaining age 35. No spousal consent is required for a 
payment to the participant or the use of the accrued benefit as security 
for a plan loan to the participant.
    (b) Plans subject to section 401(a)(11). A participant in a plan 
subject to the survivor annuity requirements of section 401(a)(11) 
generally may waive the QPSA benefit (with spousal consent) only on or 
after the first day of the plan year in which the participant attains 
age 35. However, a plan may provide for an earlier waiver (with spousal 
consent), provided that a written explanation of the QPSA is given to 
the participant and such waiver becomes invalid upon the beginning of 
the plan year in which the participant's 35th birthday occurs. If there 
is no new waiver after such date, the participant's spouse must receive 
the QPSA benefit upon the participant's death.
    Q-34: Must the written explanations required by section 417(a)(3) be 
provided to nonvested participants?
    A-34: Such written explantions must be provided to nonvested 
participants who are employed by an employer maintaining the plan. Thus, 
they are not required to be provided to those nonvested participants who 
are no longer employed by such an employer.
    Q-35: When must a plan provide the written explanation, required by 
section 417(a)(3)(B), of the QPSA to a participant?
    A-35: (a) General rule. A plan must provide the written explanation 
of the QPSA to a participant within the applicable period. Except as 
provided in paragraph (b), the applicable period means, with respect to 
a participant, whichever of the following periods ends last:
    (1) The period beginning with the first day of the plan year in 
which the participant attains age 32 and ending with the close of the 
plan year preceding the plan year in which the participant attains age 
35.
    (2) A reasonable period ending after the individual becomes a 
participant.
    (3) A reasonable period ending after the QPSA is no longer fully 
subsidized.
    (4) A reasonable period ending after section 401(a)(11) first 
applies to the participant. Section 401(a)(11) would first apply when a 
benefit is transferred from a plan not subject to the survivor annuity 
requirements of section 401(a)(11) to a plan subject to such section or 
at the time of an election of an annuity under a defined contribution 
plan described in section 401(a)(11)(B)(iii).
    (b) Pre-35 separations. In the case of a participant who separates 
from service before attaining age 35, the applicable period means the 
period beginning one year before the separation from service and ending 
one year after such separation. If such a participant returns to 
service, the plan must also comply with pragraph (a).
    (c) Reasonable period. For purposes of applying paragraph (a), a 
reasonable period ending after the enumerated events described in 
paragraphs (a) (2), (3) and (4) is the end of the one-year period 
beginning with the date the applicable event occurs. The applicable 
period for such events begins one year prior to the occurrence of the 
enumerated events.
    (d) Transition rule. In the case of an individual who was a 
participant in the plan on August 23, 1984, and, as of that date had 
attained age 34, the plan will satisfy the requriement of section

[[Page 89]]

417(a)(3)(B) if it provided the explanation not later than December 31, 
1985.
    Q-36: How do plans satisfy the requirements of providing 
participants explanations of QPSAs and QJSAs?
    A-36: Section 417(a)(3) sets forth the requirements for providing 
plan participants written explanations of QPSAs and QJSAs. The 
requirement that the terms and conditions of the QJSA or QPSA, as the 
case may be, be furnished to participants is not satisfied unless the 
written explanation complies with the requirements set forth in 
Sec. 1.401(a)-11(c)(3). Also, for plan years beginning after December 
31, 1988, participants must be furnished a general description of the 
eligibility conditions and other material features of the optional forms 
of benefit and sufficient additional information to explain the relative 
values of the optional forms of benefit available under the plan (e.g., 
the extent to which optional forms are subsidized relative to the normal 
form of benefit or the interest rates used to calculate the optional 
forms).
    Q-37: What are the consequences of fully subsidizing the cost of 
either a QJSA or a QPSA in accordance with section 417(a)(5)?
    A-37: If a plan fully subsidizes a QJSA or QPSA in accordance with 
section 417(a)(5) and does not allow a participant to waive such QJSA or 
QPSA or to select a nonspouse beneficiary, the plan is not required to 
provide the written explanation required by section 417(a)(3). However, 
if the plan offers an election to waive the benefit or designate a 
beneficiary, it must satisfy the election, consent, and notice 
requirements of section 417(a) (1), (2), and (3), with respect to such 
subsidized QJSA or QPSA, in accordance with section 417(a)(5).
    Q-38: What is a fully subsidized benefit?
    A-38: (a) QJSA--(1) General rule. A fully subsidized QJSA is one 
under which no increase in cost to, or decrease in actual amounts 
received by, the participant may result from the participant's failure 
to elect another form of benefit.
    (2) Examples.
    Example (1). If a plan provides a joint and survivor annuity and a 
single sum option, the plan does not fully subsidize the joint and 
survivor annuity, regardless of the actuarial value of the joint and 
survivor annuity because, in the event of the participant's early death, 
the participant would have received less under the annuity than he would 
have received under the single sum option.
    Example (2). If a plan provides for a life annuity of $100 per month 
and a joint and 100% survivor benefit of $99 per month, the plan does 
not fully subsidize the joint and survivor benefit.
    (b) QPSA. A QPSA is fully subsidized if the amount of the 
participant's benefit is not reduced because of the QPSA coverage and if 
no charge to the participant under the plan is made for the coverage. 
Thus, a QPSA is fully subsidized in a defined contribution plan.
    Q-39: When do the survivor annuity requirements of sections 
401(a)(11) and 417 apply to plans?
    A-39: Sections 401(a)(11) and 417 generally apply to plan years 
beginning after December 31, 1984. Sections 302 and 303 of REA 1984 
provide specific effective dates and transitional rules under which the 
QJSA or QPSA (or pre-REA 1984 section 401(a)(11)) requirements may be 
applicable to particular plans or with respect to benefits provided to 
(as amended by REA 1984) particular participants. In general, the 
section 401(a)(11) (as amended by REA 1984) survivor annuity 
requirements do not apply with respect to a participant who does not 
have at least one hour of service or one hour of paid leave under the 
plan after August 22, 1984.
    Q-40: Are there special effective dates for plans maintained 
pursuant to collective bargaining agreements?
    A-40: Yes. Section 302(b) of REA 1984 as amended by section 1898(g) 
of the Tax Reform Act of 1986 provides a special deferred effective date 
for such plans. Whether a plan is described in section 302(b) of REA 
1984 is determined under the principles applied under section 1017(c) of 
the Employee Retirement Income Security Act of 1974. See H.R. Rep. No. 
1280, 93d Cong., 2d Sess. 266 (1974). In addition, a plan will not be 
treated as maintained under

[[Page 90]]

a collective bargaining agreement unless the employee representatives 
satisfy section 7701(a)(46) of the Internal Revenue Code after March 31, 
1984. See Sec. 301.7701-17T for other requirements for a plan to be 
considered to be collectively bargained. Nothing in section 302(b) of 
REA 1984 denies a participant or spouse the rights set forth in sections 
303(c)(2), 303(c)(3), 303(e)(1), and 303(e)(2) of REA 1984.
    Q-41: What is one hour of service or paid leave under the plan for 
purposes of the transition rules in section 303 of REA 1984?
    A-41: One hour of service or paid leave under the plan is one hour 
of service or paid leave recognized or required to be recognized under 
the plan for any purpose, e.g., participation, vesting percentage, or 
benefit accrual purposes. For plans that do not compute hours of 
service, one hour of service or paid leave means any service or paid 
leave recognized or required to be recognized under the plan for any 
purpose.
    Q-42: Must a plan be amended to provide for the QPSA required by 
section 303(c)(2) of REA 1984, or for the survivor annuities required by 
section 303(e) of REA 1984?
    A-42: A plan will not fail to satisfy the qualification requirements 
of section 401(a) or 403(a) merely because it is not amended to provide 
the QPSA required by section 303(c)(2) or the survivor annuities 
required by section 303(e). The plan must, however, satisfy those 
requirements in operation.
    Q-43: Is a participant's election, or a spouse's consent to an 
election, with respect to a QPSA, made before August 23, 1984, valid?
    A-43: No.
    Q-44: Is spousal consent required for certain survivor annuity 
elections made by the participant after December 31, 1984, and before 
the first plan year to which new sections 401(a)(11) and 417 apply?
    A-44: Yes. Section 303(c)(3) of REA 1984 provides that any election 
not to take a QJSA made after December 31, 1984, and before the date 
sections 401(a)(11) and 417 apply to the plan by a participant who has 1 
hour of service or leave under the plan after August 23, 1984, is not 
effective unless the spousal consent requirements of section 417 are met 
with respect to such election. Unless the participant's annuity starting 
date occurred before January 1, 1985, the spousal consent required by 
section 417 (a)(2) and (e) must be obtained even though the participant 
elected the benefit prior to January 1, 1985. The plan is not required 
to be amended to comply with section 303(c)(3) of REA 1984, but the plan 
must satisfy this requirement in operation.
    Q-45: Are there special rules for certain participants who separated 
from service prior to August 23, 1984?
    A-45: Yes. Section 303(e) of REA 1984 provides special rules for 
certain participants who separated from service before August 23, 1984. 
Section 303(e)(1), which applies only to plans subject to section 
401(a)(11) of the Code (as in effect on August 22, 1984), provides that 
participants whose annuity starting date did not occur before August 24, 
1984, and who had one hour of service on or after September 2, 1974, but 
not in a plan year beginning after December 31, 1975, may elect to 
receive the benefits required to be provided under section 401(a)(11) of 
the Code (as in effect on August 22, 1984). Section 303(e)(2) provides 
that certain participants who had one hour of service in a plan year 
beginning on or after January 1, 1976, but not after August 22, 1984, 
may elect QPSA coverage under new sections 401(a)(11) and 417 in plans 
subject to these provisions. Section 303(e)(4)(A) requires plans or plan 
administrators to notify those participants of the provisions of section 
303(e).
    Q-46: When must a plan provide the notice required by section 
303(e)(4)(A) of REA 1984?
    A-46: The notice required by section 303(e)(4)(A) must be provided 
no later than the earlier of:
    (a) The date the first summary annual report provided after 
September 17, 1985, is distributed to participants; or
    (b) September 30, 1985.
A plan will not fail to satisfy the preceding sentence if the plan 
provides a fully subsidized QPSA with respect to any participant 
described in section 303(e) who dies on or after July 19, 1985, and 
before the notice is received. If the

[[Page 91]]

plan ceases to fully subsidize the QPSA, the cessation must not be 
effective until the notice is given. For this purpose, an annuity 
payable to a nonspouse beneficiary elected by the participant, in lieu 
of a spouse, shall satisfy the QPSA requirement, so long as the survivor 
benefit is fully subsidized. The notice required by this paragraph must 
be in writing and sent to the participant's last known address.
    Q-47: Is there another time when plans must provide notice of the 
right, described in section 303(e)(1) of REA '84, to elect a pre-REA 
1984 qualified joint and survivor annuity?
    A-47: Yes. Notice of this right must also be provided to a 
participant at the time the participant applies for benefit payments.

[53 FR 31842, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988]



Sec. 1.401(a)-30  Limit on elective deferrals.

    (a) General Rule. A trust that is part of a plan under which 
elective deferrals may be made during a calendar year is not qualified 
under section 401(a) unless the plan provides that the elective 
deferrals on behalf of an individual under the plan and all other plans, 
contracts, or arrangements of the employer maintaining the plan may not 
exceed the applicable limit for the individual's taxable year beginning 
in the calendar year. A plan may incorporate the applicable limit by 
reference. In the case of a plan maintained by more than one employer to 
which section 413 (b) or (c) applies, section 401(a)(30) and this 
section are applied as if each employer maintained a separate plan. See 
Sec. 1.402(g)-1(e) for rules permitting the distribution of excess 
deferrals to prevent disqualification of a plan or trust for failure to 
comply in operation with section 401(a)(30).
    (b) Definitions. For purposes of this section:
    (1) Applicable limit. The term ``applicable limit'' has the meaning 
provided in Sec. 1.402(g)-1(d).
    (2) Elective deferrals. The term ``elective deferrals'' has the 
meaning provided in Sec. 1.402(g)-1(b).
    (c) Effective date--(1) In general. Except as otherwise provided in 
this paragraph (c), this section is effective for plan years beginning 
after December 31, 1987.
    (2) Transition rule. For plan years beginning in l988, a plan may 
rely on a reasonable interpretation of the law as in effect on December 
31, 1987.
    (3) Deferrals under collective bargaining agreements. In the case of 
a plan maintained pursuant to one or more collective bargaining 
agreements between employee representatives and one or more employers 
ratified before March 1, 1986, this section does not apply to 
contributions made pursuant to a collective bargaining agreement for 
plan years beginning before the earlier of:
    (i) The later of January 1, 1988, or the date on which the last 
collective bargaining agreement terminates (determined without regard to 
any extension thereof after February 28, 1986), or
    (ii) January 1, 1989.

[T.D. 8357, 56 FR 40516, Aug. 15, 1991]



Sec. 1.401(a)-50  Puerto Rican trusts; election to be treated as a domestic trust.

    (a) In general. Section 401(a) requires, among other things, that a 
trust forming part of a pension, profit-sharing, or stock bonus plan 
must be created or organized in the United States to be a qualified 
trust. Section 1022(i)(2) of the Employee Retirement Income Security Act 
of 1974 (ERISA) (88 Stat. 942) provides that trusts under certain 
pension, etc., plans created or organized in Puerto Rico whose 
administrators have made the election referred to in section 1022(i)(2) 
are to be treated as trusts created or organized in the United States 
for purposes of section 401(a). Thus, if a plan otherwise satisfies the 
qualification requirements of section 401(a), any trust forming part of 
the plan for which an election is made will be treated as a qualified 
trust under that section.
    (b) Manner and effect of election. A plan administrator may make an 
election under ERISA section 1022(i)(2) by filing a statement making the 
election, along with a copy of the plan, with the Director's 
Representative of the Internal Revenue Service in Puerto Rico. The 
statement making the election must indicate that it is being made under 
ERISA section 1022(i)(2). The

[[Page 92]]

statement may also be filed in conjunction with a written request for a 
determination letter. If the election is made with a written request for 
a determination letter, the election may be conditioned upon issuance of 
a favorable determination letter and will be irrevocable upon issuance 
of such letter. Otherwise, once made, an election is irrevocable. It is 
generally effective for plan years beginning after the date it has been 
made. However, an election made before March 3, 1983 may, at the option 
of the plan administrator at the time he or she makes the election, be 
considered to have been made on any date between September 2, 1974, and 
the actual date of the election. The election will then be effective for 
plan years beginning on or after the date chosen by the plan 
administrator.
    (c) Annuities, custodial accounts, etc. See section 401 (f) for 
rules relating to the treatment of certain annuities, custodial accounts 
or other contracts, as trusts for purposes of section 401(a).
    (d) Source of plan distributions to participants and beneficiaries 
residing outside the United States. Except as provided under section 
871(f) (relating to amounts received as an annuity by nonresident 
aliens), the amount of a distribution from an electing plan that is to 
be treated as income from sources within the United States is determined 
as described below. The portion of the distribution considered to be a 
return of employer contributions is to be treated as income from sources 
within the United States in an amount equal to the portion of the 
distribution considered to be a return of employer contributions 
multiplied by the following fraction:

Days of performance of labor or services within the United States for 
the employer.
_______________________________________________________________________
Total days of performance of labor or services for the employer.

The days of performance of labor or services within the United States 
shall not include the time period for which the employee's compensation 
is deemed not to be income from sources within the United States under 
subtitle A of the Code. Thus, for example, if an employee's compensation 
was not deemed to be income from sources within the United States under 
section 861(a)(3), then the time the emloyee was present in the United 
States while such compensation was earned would not be included in 
determining the days of performance of labor or services within the 
United States in the numerator of the above fraction. In addition, days 
of performance of labor or services for the employer in both the 
numerator and denominator of the above fraction are limited to days of 
plan participation by the employee and any service used for determining 
an employee's accrued benefit under the plan. The remaining portion of 
the distribution, that is, any amount other than the portion of the 
distribution considered to be a return of employer contributions, is not 
to be treated as income from sources within the United States. For 
example, if a distribution consists of amounts representing employer 
contributions, employee contributions, and earnings on employer and 
employee contributions, no part of the portion of the distribution 
attributable to employee contributions, or earnings on employer and 
employee contributions, will be treated as income from sources within 
the United States.

[T.D. 7859, 47 FR 54297, Dec. 2, 1982]



Sec. 1.401(a)(4)-0  Table of contents.

    This section contains a listing of the major headings of 
Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13.

 Sec. 1.401(a)(4)-1  Nondiscrimination requirements of section 401(a)(4)

(a) In general.
(b) Requirements a plan must satisfy.
    (1) In general.
    (2) Nondiscriminatory amount of contributions or benefits.
    (3) Nondiscriminatory availability of benefits, rights, and 
features.
    (4) Nondiscriminatory effect of plan amendments and terminations.
(c) Application of requirements.
    (1) In general.
    (2) Interpretation.
    (3) Plan-year basis of testing.
    (4) Application of section 410(b) rules.
    (5) Collectively-bargained plans.
    (6) Former employees.
    (7) Employee-provided contributions and benefits.
    (8) Allocation of earnings.
    (9) Rollovers, transfers, and buybacks.
    (10) Vesting.

[[Page 93]]

    (11) Crediting service.
    (12) Governmental plans.
    (13) Employee stock ownership plans.
    (14) Section 401(h) benefits.
    (15) Definitions.
    (16) Effective dates and fresh-start rules.
(d) Additional guidance.

      Sec. 1.401(a)(4)-2  Nondiscrimination in amount of employer 
             contributions under a defined contribution plan

(a) Introduction.
    (1) Overview.
    (2) Alternative methods of satisfying nondiscriminatory amount 
requirement.
(b) Safe harbors.
    (1) In general.
    (2) Safe harbor for plans with uniform allocation formula.
    (3) Safe harbor for plans with uniform points allocation formula.
    (4) Use of safe harbors not precluded by certain plan provisions.
(c) General test for nondiscrimination in amount of contributions.
    (1) General rule.
    (2) Determination of allocation rates.
    (3) Satisfaction of section 410(b) by a rate group.
    (4) Examples.

  Sec. 1.401(a)(4)-3  Nondiscrimination in amount of employer-provided 
                  benefits under a defined benefit plan

(a) Introduction.
    (1) Overview.
    (2) Alternative methods of satisfying nondiscriminatory amount 
requirement.
(b) Safe harbors.
    (1) In general.
    (2) Uniformity requirements.
    (3) Safe harbor for unit credit plans.
    (4) Safe harbor for plans using fractional accrual rule.
    (5) Safe harbor for insurance contract plans.
    (6) Use of safe harbors not precluded by certain plan provisions.
(c) General test for nondiscrimination in amount of benefits.
    (1) General rule.
    (2) Satisfaction of section 410(b) by a rate group.
    (3) Certain violations disregarded.
    (4) Examples.
(d) Determination of accrual rates.
    (1) Definitions.
    (2) Rules of application.
    (3) Optional rules.
    (4) Examples.
(e) Compensation rules.
    (1) In general.
    (2) Average annual compensation.
    (3) Examples.
(f) Special rules.
    (1) In general.
    (2) Certain qualified disability benefits.
    (3) Accruals after normal retirement age.
    (4) Early retirement window benefits.
    (5) Unpredictable contingent event benefits.
    (6) Determination of benefits on other than plan-year basis.
    (7) Adjustments for certain plan distributions.
    (8) Adjustment for certain QPSA charges.
    (9) Disregard of certain offsets.
    (10) Special rule for multiemployer plans.

Sec. 1.401(a)(4)-4  Nondiscriminatory availability of benefits, rights, 
                              and features

(a) Introduction.
(b) Current availability.
    (1) General rule.
    (2) Determination of current availability.
    (3) Benefits, rights, and features that are eliminated 
prospectively.
(c) Effective availability.
    (1) General rule.
    (2) Examples.
(d) Special rules.
    (1) Mergers and acquisitions.
    (2) Frozen participants.
    (3) Early retirement window benefits.
    (4) Permissive aggregation of certain benefits, rights, or features.
    (5) Certain spousal benefits.
    (6) Special ESOP rules.
    (7) Special testing rule for unpredictable contingent event 
benefits.
(e) Definitions.
    (1) Optional form of benefit.
    (2) Ancillary benefit.
    (3) Other right or feature.

        Sec. 1.401(a)(4)-5  Plan amendments and plan terminations

    (a) Introduction.
    (1) Overview.
    (2) Facts-and-circumstances determination.
    (3) Safe harbor for certain grants of benefits for past periods.
    (4) Examples.
(b) Pre-termination restrictions.
    (1) Required provisions in defined benefit plans.
    (2) Restriction of benefits upon plan termination.
    (3) Restrictions on distributions.
    (4) Operational restrictions on certain money purchase pension 
plans.

         Sec. 1.401(a)(4)-6  Contributory defined benefit plans

(a) Introduction.
(b) Determination of employer-provided benefit.
    (1) General rule.
    (2) Composition-of-work-force method.
    (3) Minimum-benefit method.

[[Page 94]]

    (4) Grandfather rules for plans in existence on May 14, 1990.
    (5) Government-plan method.
    (6) Cessation of employee contributions.
(c) Rules applicable in determining whether employee-provided benefits 
          are nondiscriminatory in amount.
    (1) In general.
    (2) Same rate of contributions.
    (3) Total-benefits method.
    (4) Grandfather rule for plans in existence on May 14, 1990.

          Sec. 1.401(a)(4)-7  Imputation of permitted disparity

(a) Introduction.
(b) Adjusting allocation rates.
    (1) In general.
    (2) Employees whose plan year compensation does not exceed taxable 
wage base.
    (3) Employees whose plan year compensation exceeds taxable wage 
base.
    (4) Definitions.
    (5) Example.
(c) Adjusting accrual rates.
    (1) In general.
    (2) Employees whose average annual compensation does not exceed 
covered compensation.
    (3) Employees whose average annual compensation exceeds covered 
compensation.
    (4) Definitions.
    (5) Employees with negative unadjusted accrual rates.
    (6) Example.
(d) Rules of general application.
    (1) Eligible plans.
    (2) Exceptions from consistency requirements.
    (3) Overall permitted disparity.

                    Sec. 1.401(a)(4)-8  Cross-testing

(a) Introduction.
(b) Nondiscrimination in amount of benefits provided under a defined 
          contribution plan.
    (1) General rule.
    (2) Determination of equivalent accrual rates.
    (3) Safe-harbor testing method for target benefit plans.
(c) Nondiscrimination in amount of contributions under a defined benefit 
          plan.
    (1) General rule.
    (2) Determination of equivalent allocation rates.
    (3) Safe harbor testing method for cash balance plans.
(d) Safe-harbor testing method for defined benefit plans that are part 
          of a floor-offset arrangement.
    (1) General rule.
    (2) Application of safe-harbor testing method to qualified offset 
arrangements.

         Sec. 1.401(a)(4)-9  Plan aggregation and restructuring

(a) Introduction.
(b) Application of nondiscrimination requirements to DB/DC plans.
    (1) General rule.
    (2) Special rules for demonstrating nondiscrimination in amount of 
contributions or benefits.
    (3) Optional rules for demonstrating nondiscrimination in 
availability of certain benefits, rights, and features.
(c) Plan restructuring.
    (1) General rule.
    (2) Identification of component plans.
    (3) Satisfaction of section 401(a)(4) by a component plan.
    (4) Satisfaction of section 410(b) by a component plan.
    (5) Effect of restructuring under other sections.
    (6) Examples.

            Sec. 1.401(a)(4)-10  Testing of former employees

(a) Introduction.
(b) Nondiscrimination in amount of contributions or benefits.
    (1) General rule.
    (2) Permitted disparity.
    (3) Examples.
(c) Nondiscrimination in availability of benefits, rights, or features.

                  Sec. 1.401(a)(4)-11  Additional rules

(a) Introduction.
(b) Rollovers, transfers, and buybacks.
    (1) Rollovers and elective transfers.
    (2) Other transfers. [Reserved]
    (3) Employee buybacks.
(c) Vesting.
    (1) General rule.
    (2) Deemed equivalence of statutory vesting schedules.
    (3) Safe harbor for vesting schedules.
    (4) Examples.
(d) Service-crediting rules.
    (1) Overview.
    (2) Manner of crediting service.
    (3) Service-crediting period.
(e) Family aggregation rules. [Reserved]
(f) Governmental plans. [Reserved]
(g) Corrective amendments.
    (1) In general.
    (2) Scope of corrective amendments.
    (3) Conditions for corrective amendments.
    (4) Corrective amendments must have substance.
    (5) Effect under other statutory requirements.
    (6) Examples.

                    Sec. 1.401(a)(4)-12  Definitions

       Sec. 1.401(a)(4)-13  Effective dates and fresh-start rules

(a) General effective dates.

[[Page 95]]

    (1) In general.
    (2) Plans of tax-exempt organizations.
    (3) Compliance during transition period.
(b) Effective date for governmental plans.
(c) Fresh-start rules for defined benefit plans.
    (1) Introduction.
    (2) General rule.
    (3) Definition of frozen.
    (4) Fresh-start formulas.
    (5) Rules of application.
    (6) Examples.
(d) Compensation adjustments to frozen accrued benefits.
    (1) Introduction.
    (2) In general.
    (3) Plan requirements.
    (4) Meaningful coverage as of fresh-start date.
    (5) Meaningful ongoing coverage.
    (6) Meaningful current benefit accruals.
    (7) Minimum benefit adjustment.
    (8) Adjusted accrued benefit.
    (9) Examples.
(e) Determination of initial theoretical reserve for target benefit 
          plans.
    (1) General rule.
    (2) Example.
(f) Special fresh-start rules for cash balance plans.
    (1) In general.
    (2) Alternative formula.
    (3) Limitations on formulas.

[T.D. 8485, 58 FR 46778, Sept. 3, 1993]



Sec. 1.401(a)(4)-1  Nondiscrimination requirements of section 401(a)(4).

    (a) In general. Section 401(a)(4) provides that a plan is a 
qualified plan only if the contributions or the benefits provided under 
the plan do not discriminate in favor of HCEs. Whether a plan satisfies 
this requirement depends on the form of the plan and on its effect in 
operation. In making this determination, intent is irrelevant. This 
section sets forth the exclusive rules for determining whether a plan 
satisfies section 401(a)(4). A plan that complies in form and operation 
with the rules in this section therefore satisfies section 401(a)(4).
    (b) Requirements a plan must satisfy--(1) In general. In order to 
satisfy section 401(a)(4), a plan must satisfy each of the requirements 
of this paragraph (b).
    (2) Nondiscriminatory amount of contributions or benefits--(i) 
General rule. Either the contributions or the benefits provided under 
the plan must be nondiscriminatory in amount. It need not be shown that 
both the contributions and the benefits provided are nondiscriminatory 
in amount, but only that either the contributions alone or the benefits 
alone are nondiscriminatory in amount.
    (ii) Defined contribution plans--(A) General rule. A defined 
contribution plan satisfies this paragraph (b)(2) if the contributions 
allocated under the plan (including forfeitures) are nondiscriminatory 
in amount under Sec. 1.401(a)(4)-2. Alternatively, a defined 
contribution plan (other than an ESOP) satisfies this paragraph (b)(2) 
if the equivalent benefits provided under the plan are nondiscriminatory 
in amount under Sec. 1.401(a)(4)-8(b). Section 1.401(a)(4)-8(b) includes 
a safe-harbor testing method for contributions provided under a target 
benefit plan.
    (B) Section 401(k) plans and section 401(m) plans. A section 401(k) 
plan is deemed to satisfy this paragraph (b)(2) because Sec. 1.410(b)-9 
defines a section 401(k) plan as a plan consisting of elective 
contributions under a qualified cash or deferred arrangement (i.e., one 
that satisfies section 401(k)(3), the nondiscriminatory amount 
requirement applicable to qualified cash or deferred arrangements). A 
section 401(m) plan satisfies this paragraph (b)(2) only if the plan 
satisfies Secs. 1.401(m)-1(b) and 1.401(m)-2. Contributions under a 
nonqualified cash or deferred arrangement, elective contributions 
described in Sec. 1.401(k)-1(b)(4)(iv) that fail to satisfy the 
allocation and compensation requirements of Sec. 1.401(k)-1(b)(4)(i), 
matching contributions that fail to satisfy Sec. 1.401(m)-
1(b)(4)(ii)(A), and qualified nonelective contributions treated as 
elective or matching contributions for certain purposes under 
Secs. 1.401(k)-1(b)(5) and 1.401(m)-1(b)(5), respectively, are not 
subject to the special rule in this paragraph (b)(2)(ii)(B), because 
they are not treated as part of a section 401(k) plan or section 401(m) 
plan as those terms are defined in Sec. 1.410(b)-9. The contributions 
described in the preceding sentence must satisfy paragraph (b)(2)(ii)(A) 
of this section.
    (iii) Defined benefit plans. A defined benefit plan satisfies this 
paragraph (b)(2) if the benefits provided under the plan are 
nondiscriminatory in amount under Sec. 1.401(a)(4)-3. Alternatively, a

[[Page 96]]

defined benefit plan satisfies this paragraph (b)(2) if the equivalent 
allocations provided under the plan are nondiscriminatory in amount 
under Sec. 1.401(a)(4)-8(c). Section 1.401(a)(4)-8(c) includes a safe-
harbor testing method for benefits provided under a cash balance plan. 
In addition, Sec. 1.401(a)(4)-8(d) provides a safe-harbor testing method 
for benefits provided under a defined benefit plan that is part of a 
floor-offset arrangement.
    (3) Nondiscriminatory availability of benefits, rights, and 
features. All benefits, rights, and features provided under the plan 
must be made available in the plan in a nondiscriminatory manner. Rules 
for determining whether this requirement is satisfied are set forth in 
Sec. 1.401(a)(4)-4.
    (4) Nondiscriminatory effect of plan amendments and terminations. 
The timing of plan amendments must not have the effect of discriminating 
significantly in favor of HCEs. Rules for determining whether this 
requirement is satisfied are set forth in Sec. 1.401(a)(4)-5(a). Section 
1.401(a)(4)-5(b) provides additional requirements regarding plan 
terminations.
    (c) Application of requirements--(1) In general. The requirements of 
paragraph (b) of this section must be applied in accordance with the 
rules set forth in this paragraph (c).
    (2) Interpretation. The provisions of Secs. 1.401(a)(4)-1 through 
1.401(a)(4)-13 must be interpreted in a reasonable manner consistent 
with the purpose of preventing discrimination in favor of HCEs.
    (3) Plan-year basis of testing. The requirements of paragraph (b) of 
this section are generally applied on the basis of the plan year and on 
the basis of the terms of the plan in effect during the plan year. Thus, 
unless otherwise provided, the compensation, contributions, benefit 
accruals, and other items used to apply these requirements must be 
determined with respect to the plan year being tested. However, 
Sec. 1.401(a)(4)-11(g) provides rules allowing for corrective amendments 
made after the close of the plan year to be taken into account in 
satisfying certain requirements under paragraph (b) of this section.
    (4) Application of section 410(b) rules--(i) Relationship between 
sections 401(a)(4) and 410(b). To be a qualified plan, a plan must 
satisfy both sections 410(b) and 401(a)(4). Section 410(b) requires that 
a plan benefit a nondiscriminatory group of employees, and section 
401(a)(4) requires that the contributions or benefits provided to 
employees benefiting under the plan not discriminate in favor of HCEs. 
Consistent with this requirement, the definition of a plan subject to 
testing under section 401(a)(4) is the same as the definition of a plan 
subject to testing under section 410(b), i.e., the plan determined after 
applying the mandatory disaggregation rules of Sec. 1.410(b)-7(c) and 
the permissive aggregation rules of Sec. 1.410(b)-7(d). In addition, 
whichever testing option is used for the plan year under Sec. 1.410(b)-
8(a) (e.g., quarterly testing) must also be used for purposes of 
determining whether the plan satisfies section 401(a)(4) for the plan 
year.
    (ii) Special rules for certain aggregated plans. Special rules are 
set forth in Sec. 1.401(a)(4)-9(b) for applying the nondiscriminatory 
amount and availability requirements of paragraphs (b)(2) and (b)(3) of 
this section to a plan that includes one or more defined benefit plans 
and one or more defined contribution plans that have been permissively 
aggregated under Sec. 1.410(b)-7(d).
    (iii) Restructuring. In certain circumstances, a plan may be 
restructured on the basis of employee groups and treated as comprising 
two or more plans, each of which is treated as a separate plan that must 
independently satisfy sections 401(a)(4) and 410(b). Rules relating to 
restructuring plans for purposes of applying the requirements of 
paragraph (b) of this section are set forth in Sec. 1.401(a)(4)-9(c).
    (iv) References to section 410(b). Except as otherwise specifically 
provided, references to satisfying section 410(b) in Secs. 1.401(a)(4)-1 
through 1.401(a)(4)-13 mean satisfying Sec. 1.410(b)-2 (taking into 
account any special rules available in satisfying that section, other 
than the permissive aggregation rules of Sec. 1.410(b)-7(d)). In the 
case of a plan described in section 410(c)(1) that has not made the 
election described in section 410(d) and is not subject to section 
403(b)(12)(A)(i), references in

[[Page 97]]

Sec. Sec. 1.401(a)(4)-1 through 1.401(a)(4)-13 to satisfying section 
410(b) mean satisfying section 410(c)(2).
    (5) Collectively-bargained plans. The requirements of paragraph (b) 
of this section are treated as satisfied by a collectively-bargained 
plan that automatically satisfies section 410(b) under Sec. 1.410(b)-
2(b)(7).
    (6) Former employees. In applying the nondiscriminatory amount and 
availability requirements of paragraphs (b)(2) and (b)(3) of this 
section, former employees are tested separately from active employees, 
unless otherwise provided. Rules for applying paragraphs (b)(2) and 
(b)(3) of this section to former employees are set forth in 
Sec. 1.401(a)(4)-10.
    (7) Employee-provided contributions and benefits. In applying the 
nondiscriminatory amount requirement of paragraph (b)(2) of this 
section, employee-provided contributions and benefits are tested 
separately from employer-provided contributions and benefits, unless 
otherwise provided. Rules for determining the amount of employer-
provided benefits under a defined benefit plan that include employee 
contributions not allocated to separate accounts are set forth in 
Sec. 1.401(a)(4)-6(b), and rules for applying paragraph (b)(2) of this 
section to employee contributions under such a plan are set forth in 
Sec. 1.401(a)(4)-6(c). See paragraph (b)(2)(ii)(B) of this section for 
rules applicable to employee contributions allocated to separate 
accounts.
    (8) Allocation of earnings. Notwithstanding any other provision in 
Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13, a defined contribution plan 
does not satisfy paragraph (b)(2) of this section if the manner in which 
income, expenses, gains, or losses are allocated to accounts under the 
plan discriminates in favor of HCEs or former HCEs.
    (9) Rollovers, transfers, and buybacks. In applying the requirements 
of paragraph (b) of this section, rollover (including direct rollover) 
contributions described in section 402(c), 402(e)(6), 403(a)(4), 
403(a)(5), or 408(d)(3), elective transfers described in Sec. 1.411(d)-
4, Q&A-3(b), transfers of assets and liabilities described in section 
414(l), and employee buybacks are treated in accordance with the rules 
set forth in Sec. 1.401(a)(4)-11(b).
    (10) Vesting. A plan does not satisfy the nondiscriminatory amount 
requirement of paragraph (b)(2) of this section unless it satisfies 
Sec. 1.401(a)(4)-11(c) with respect to the manner in which employees 
vest in their accrued benefits.
    (11) Crediting service. A plan does not satisfy paragraphs (b)(2) 
and (b)(3) of this section unless it satisfies Sec. 1.401(a)(4)-11(d) 
with respect to the manner in which employees' service is credited under 
the plan. Service other than actual service with the employer may not be 
taken into account in determining whether the plan satisfies paragraphs 
(b)(2) and (b)(3) of this section except as provided in 
Sec. 1.401(a)(4)-11(d).
    (12) Governmental plans. The rules of this section apply to a 
governmental plan within the meaning of section 414(d), except as 
provided in Secs. 1.401(a)(4)-11(f) and 1.401(a)(4)-13(b).
    (13) Employee stock ownership plans. [Reserved]
    (14) Section 401(h) benefits. In applying the requirements of 
paragraph (b) of this section, the portion of a plan providing benefits 
described in section 401(h) is tested separately from the portion of the 
same plan providing retirement benefits, and thus is not required to 
satisfy this section. Rules applicable to section 401(h) benefits are 
set forth in Sec. 1.401-14(b)(2).
    (15) Definitions. In applying the requirements of this section, the 
definitions in Sec. 1.401(a)(4)-12 govern.
    (16) Effective dates and fresh-start rules. In applying the 
requirements of this section, the effective dates set forth in 
Sec. 1.401(a)(4)-13 govern. Section 1.401(a)(4)-13 also provides certain 
transition and fresh-start rules that apply for purposes of this 
section.
    (d) Additional guidance. The Commissioner may, in revenue rulings, 
notices, and other guidance, published in the Internal Revenue Bulletin, 
provide any additional guidance that may be necessary or appropriate in 
applying the nondiscrimination requirements of section 401(a)(4), 
including additional safe harbors and alternative methods and

[[Page 98]]

procedures for satisfying those requirements. See 
Sec. 601.601(d)(2)(ii)(b) of this chapter.

[T.D. 8485, 58 FR 46780, Sept. 3, 1993]



Sec. 1.401(a)(4)-2  Nondiscrimination in amount of employer contributions under a defined contribution plan.

    (a) Introduction--(1) Overview. This section provides rules for 
determining whether the employer contributions allocated under a defined 
contribution plan are nondiscriminatory in amount as required by 
Sec. 1.401(a)(4)-1(b)(2)(ii)(A). Certain defined contribution plans that 
provide uniform allocations are permitted to satisfy this requirement by 
meeting one of the safe harbors in paragraph (b) of this section. Plans 
that do not provide uniform allocations may satisfy this requirement by 
satisfying the general test in paragraph (c) of this section. See 
Sec. 1.401(a)(4)-1(b)(2)(ii)(B) for the exclusive tests applicable to 
section 401(k) plans and section 401(m) plans.
    (2) Alternative methods of satisfying nondiscriminatory amount 
requirement. A defined contribution plan is permitted to satisfy 
paragraph (b)(2) or (c) of this section on a restructured basis pursuant 
to Sec. 1.401(a)(4)-9(c). Alternatively, a defined contribution plan 
(other than an ESOP) is permitted to satisfy the nondiscriminatory 
amount requirement of Sec. 1.401(a)(4)-1(b)(2)(ii)(A) on the basis of 
equivalent benefits pursuant to Sec. 1.401(a)(4)-8(b).
    (b) Safe harbors--(1) In general. The employer contributions 
allocated under a defined contribution plan are nondiscriminatory in 
amount for a plan year if the plan satisfies either of the safe harbors 
in paragraph (b)(2) or (b)(3) of this section. Paragraph (b)(4) of this 
section provides exceptions for certain plan provisions that do not 
cause a plan to fail to satisfy this paragraph (b).
    (2) Safe harbor for plans with uniform allocation formula--(i) 
General rule. A defined contribution plan satisfies the safe harbor in 
this paragraph (b)(2) for a plan year if the plan allocates all amounts 
taken into account under paragraph (c)(2)(ii) of this section for the 
plan year under an allocation formula that allocates to each employee 
the same percentage of plan year compensation, the same dollar amount, 
or the same dollar amount for each uniform unit of service (not to 
exceed one week) performed by the employee during the plan year.
    (ii) Permitted disparity. If a plan satisfies section 401(l) in 
form, differences in employees' allocations under the plan attributable 
to uniform disparities permitted under Sec. 1.401(l)-2 (including 
differences in disparities that are deemed uniform under Sec. 1.401(l)-
2(c)(2)) do not cause the plan to fail to satisfy this paragraph (b)(2).
    (3) Safe harbor for plans with uniform points allocation formula--
(i) General rule. A defined contribution plan (other than an ESOP) 
satisfies the safe harbor in this paragraph (b)(3) for a plan year if it 
satisfies both of the following requirements:
    (A) The plan must allocate amounts under a uniform points allocation 
formula. A uniform points allocation formula defines each employee's 
allocation for the plan year as the product of the total of all amounts 
taken into account under paragraph (c)(2)(ii) of this section and a 
fraction, the numerator of which is the employee's points for the plan 
year and the denominator of which is the sum of the points of all 
employees in the plan for the plan year. For this purpose, an employee's 
points for a plan year equal the sum of the employee's points for age, 
service, and units of plan year compensation for the plan year. Under a 
uniform points allocation formula, each employee must receive the same 
number of points for each year of age, the same number of points for 
each year of service, and the same number of points for each unit of 
plan year compensation. (See Sec. 1.401(a)(4)-11(d)(3) regarding service 
that may be taken into account as years of service.) A uniform points 
allocation formula need not grant points for both age and service, but 
it must grant points for at least one of them. If the allocation formula 
grants points for years of service, the plan is permitted to limit the 
number of years of service taken into account to a single maximum number 
of years of service. A uniform points allocation formula need not grant 
points for units of plan year compensation, but if it does, the unit 
used must be a single dollar

[[Page 99]]

amount for all employees that does not exceed $200.
    (B) For the plan year, the average of the allocation rates for the 
HCEs in the plan must not exceed the average of the allocation rates for 
the NHCEs in the plan. For this purpose, allocation rates are determined 
in accordance with paragraph (c)(2) of this section, without imputing 
permitted disparity and without grouping allocation rates under 
paragraphs (c)(2) (iv) and (v) of this section, respectively.
    (ii) Example. The following example illustrates the safe harbor in 
this paragraph (b)(3):


    Example. (a) Plan A has a single allocation formula that applies to 
all employees, under which each employee's allocation for the plan year 
equals the product of the total of all amounts taken into account for 
all employees for the plan year under paragraph (c)(2)(ii) of this 
section and a fraction, the numerator of which is the employee's points 
for the plan year and the denominator of which is the sum of the points 
of all employees for the plan year. Plan A grants each employee 10 
points for each year of service (including pre-participation service and 
imputed service credited under Plan A that satisfies Sec. 1.401(a)(4)-
11(d)(3)) and one point for each $100 of plan year compensation. For the 
1994 plan year, the total allocations are $71,200, and the total points 
for all employees are 7,120. Each employee's allocation for the 1994 
plan year is set forth in the table below.

----------------------------------------------------------------------------------------------------------------
                                                                                                      Allocation
                   Employee                       Years of     Plan year      Points     Amount of       rate   
                                                  service    compensation                allocation   (percent) 
----------------------------------------------------------------------------------------------------------------
H1............................................           20      $150,000        1,700      $17,000         11.3
H2............................................           10       150,000        1,600       16,000         10.7
H3............................................           30       100,000        1,300       13,000         13.0
H4............................................            3       100,000        1,030       10,300         10.3
N1............................................           10        40,000          500        5,000         12.5
N2............................................            5        35,000          400        4,000         11.4
N3............................................            3        30,000          330        3,300         11.0
N4............................................            1        25,000          260        2,600         10.4
                                               -----------------------------------------------------------------
    Total.....................................  ...........  ............        7,120       71,200  ...........
----------------------------------------------------------------------------------------------------------------

    (b) Under these facts, for the 1994 plan year, Plan A allocates 
amounts under a uniform points allocation formula within the meaning of 
paragraph (b)(3)(i)(A) of this section.
    (c) For the 1994 plan year, the average allocation rate for the HCEs 
(H1 through H4) is 11.3 percent, and the average allocation rate for 
NHCEs (N1 through N4) is 11.3 percent. Because the average of the 
allocation rates for the HCEs does not exceed the average of the 
allocation rates for the NHCEs, Plan A satisfies paragraph (b)(3)(i)(B) 
of this section and, thus, the safe harbor in this paragraph (b)(3) for 
the 1994 plan year.

    (4) Use of safe harbors not precluded by certain plan provisions--
(i) In general. A plan does not fail to satisfy this paragraph (b) 
merely because the plan contains one or more of the provisions described 
in this paragraph (b)(4). Unless otherwise provided, any such provision 
must apply uniformly to all employees.
    (ii) Entry dates. The plan provides one or more entry dates during 
the plan year as permitted by section 410(a)(4).
    (iii) Certain conditions on allocations. The plan provides that an 
employee's allocation for the plan year is conditioned on either the 
employee's employment on the last day of the plan year or the employee's 
completion of a minimum number of hours of service during the plan year 
(not to exceed 1,000), or both. Such a provision may include an 
exception from this condition for all employees whose employment 
terminates during the plan year or only for those employees whose 
employment terminates during the plan year on account of one or more of 
the following circumstances: retirement, disability, death, or military 
service.
    (iv) Certain limits on allocations. The plan limits allocations 
otherwise provided under the allocation formula to a maximum dollar 
amount or a maximum percentage of plan year compensation, limits the 
dollar amount of plan year compensation taken into account in 
determining the amount of allocations, or applies the restrictions of 
section 409(n) or the limits of section 415.
    (v) Lower allocations for HCEs. The allocations provided to one or 
more HCEs

[[Page 100]]

under the plan are less than the allocations that would otherwise be 
provided to those employees if the plan satisfied this paragraph (b) 
(without regard to this paragraph (b)(4)(v)).
    (vi) Multiple formulas--(A) General rule. The plan provides that an 
employee's allocation under the plan is the greater of the allocations 
determined under two or more formulas, or is the sum of the allocations 
determined under two or more formulas. This paragraph (b)(4)(vi) does 
not apply to a plan unless each of the formulas under the plan satisfies 
the requirements of paragraph (b)(4)(vi) (B) through (D) of this 
section.
    (B) Sole formulas. The formulas must be the only formulas under the 
plan.
    (C) Separate testing. Each of the formulas must separately satisfy 
this paragraph (b). A formula that is available solely to some or all 
NHCEs is deemed to satisfy this paragraph (b)(4)(vi)(C).
    (D) Availability--(1) General rule. All of the formulas must be 
available on the same terms to all employees.
    (2) Formulas for NHCEs. A formula does not fail to be available on 
the same terms to all employees merely because the formula is not 
available to any HCEs, but is available to some or all NHCEs on the same 
terms as all of the other formulas in the plan.
    (3) Top-heavy formulas. In the case of a plan that provides the 
greater of the allocations under two or more formulas, one of which is a 
top-heavy formula, the top-heavy formula does not fail to be available 
on the same terms to all employees merely because it is available solely 
to all non-key employees on the same terms as all the other formulas 
under the plan. Furthermore, the top-heavy formula does not fail to be 
available on the same terms as the other formulas under the plan merely 
because it is conditioned on the plan's being top-heavy within the 
meaning of section 416(g). Finally, the top-heavy formula does not fail 
to be available on the same terms as the other formulas under the plan 
merely because it is available to all employees described in Sec. 1.416-
1, Q&A M-10 (i.e., all non-key employees who have not separated from 
service as of the last day of the plan year). The preceding sentence 
does not apply, however, unless the plan would satisfy section 410(b) if 
all employees who are benefiting under the plan solely as a result of 
receiving allocations under the top-heavy formula were treated as not 
currently benefiting under the plan. For purposes of this paragraph 
(b)(4)(vi)(D)(3), a top-heavy formula is a formula that provides the 
minimum benefit described in section 416(c)(2) (taking into account, if 
applicable, the modification in section 416(h)(2)(A)(ii)(II)).
    (E) Provisions may be applied more than once. The provisions of this 
paragraph (b)(4)(vi) may be applied more than once. For example, a plan 
satisfies this paragraph (b) if an employee's allocation under the plan 
is the greater of the allocations under two or more formulas, and one or 
more of those formulas is the sum of the allocations under two or more 
other formulas, provided that each of the formulas under the plan 
satisfies the requirements of paragraph (b)(4)(vi) (B) through (D) of 
this section.
    (F) Examples. The following examples illustrate the rules in this 
paragraph (b)(4)(vi):

    Example 1. Under Plan A, each employee's allocation equals the sum 
of the allocations determined under two formulas. The first formula 
provides an allocation of five percent of plan year compensation. The 
second formula provides an allocation of $100. Plan A satisfies this 
paragraph (b)(4)(vi).
    Example 2. Under Plan B, each employee's allocation equals the 
greater of the allocations determined under two formulas. The first 
formula provides an allocation of seven percent of plan year 
compensation and is available to all employees who complete at least 
1,000 hours of service during the plan year and who have not separated 
from service as of the last day of the plan year. The second formula is 
a top-heavy formula that provides an allocation of three percent of plan 
year compensation and that is available to all employees described in 
Sec. 1.416-1, Q&A M-10. Plan B does not satisfy the general rule in 
paragraph (b)(4)(vi)(D)(1) of this section because the two formulas are 
not available on the same terms to all employees (i.e., an employee is 
required to complete 1,000 hours of service during the plan year to 
receive an allocation under the first formula, but not under the second 
formula). Nonetheless, because the second formula is a top-heavy 
formula, the special availability rules for top-heavy formulas in 
paragraph (b)(4)(vi)(D)(3) of this section apply. Thus,

[[Page 101]]

the second formula does not fail to be available on the same terms as 
the first formula merely because the second formula is available to all 
employees described in Sec. 1.416-1, Q&A M-10, as long as the plan would 
satisfy section 410(b) if all employees who are benefiting under the 
plan solely as a result of receiving allocations under the top-heavy 
formula were treated as not currently benefiting under the plan. This is 
true even if the plan conditions the availability of the second formula 
on the plan's being top-heavy for the plan year.
    Example 3. The facts are the same as in Example 2, except that the 
first formula is available to all employees who have not separated from 
service as of the last day of the plan year, regardless of whether they 
complete at least 1,000 hours of service during the plan year. Plan B 
still does not satisfy the general rule in paragraph (b)(4)(vi)(D)(1) of 
this section because the two formulas are not available on the same 
terms to all employees (i.e., the second formula is only available to 
all non-key employees). Nonetheless, because the second formula is a 
top-heavy formula, the special availability rules for top-heavy formulas 
in paragraph (b)(4)(vi)(D)(3) of this section apply. Thus, the second 
formula does not fail to be available on the same terms as the first 
formula merely because the second formula is available solely to all 
non-key employees.

    (c) General test for nondiscrimination in amount of contributions--
(1) General rule. The employer contributions allocated under a defined 
contribution plan are nondiscriminatory in amount for a plan year if 
each rate group under the plan satisfies section 410(b). For purposes of 
this paragraph (c), a rate group exists under a plan for each HCE and 
consists of the HCE and all other employees in the plan (both HCEs and 
NHCEs) who have an allocation rate greater than or equal to the HCE's 
allocation rate. Thus, an employee is in the rate group for each HCE who 
has an allocation rate less than or equal to the employee's allocation 
rate.
    (2) Determination of allocation rates--(i) General rule. The 
allocation rate for an employee for a plan year equals the sum of the 
allocations to the employee's account for the plan year, expressed 
either as a percentage of plan year compensation or as a dollar amount.
    (ii) Allocations taken into account. The amounts taken into account 
in determining allocation rates for a plan year include all employer 
contributions and forfeitures that are allocated or treated as allocated 
to the account of an employee under the plan for the plan year, other 
than amounts described in paragraph (c)(2)(iii) of this section. For 
this purpose, employer contributions include annual additions described 
in Sec. 1.415-6(b)(2)(i) (regarding amounts arising from certain 
transactions between the plan and the employer). In the case of a 
defined contribution plan subject to section 412, an employer 
contribution is taken into account in the plan year for which it is 
required to be contributed and allocated to employees' accounts under 
the plan, even if all or part of the required contribution is not 
actually made.
    (iii) Allocations not taken into account. Allocations of income, 
expenses, gains, and losses attributable to the balance in an employee's 
account are not taken into account in determining allocation rates.
    (iv) Imputation of permitted disparity. The disparity permitted 
under section 401(l) may be imputed in accordance with the rules of 
Sec. 1.401(a)(4)-7.
    (v) Grouping of allocation rates--(A) General rule. An employer may 
treat all employees who have allocation rates within a specified range 
above and below a midpoint rate chosen by the employer as having an 
allocation rate equal to the midpoint rate within that range. Allocation 
rates within a given range may not be grouped under this paragraph 
(c)(2)(v) if the allocation rates of HCEs within the range generally are 
significantly higher than the allocation rates of NHCEs in the range. 
The specified ranges within which all employees are treated as having 
the same allocation rate may not overlap and may be no larger than 
provided in paragraph (c)(2)(v)(B) of this section. Allocation rates of 
employees that are not within any of these specified ranges are 
determined without regard to this paragraph (c)(2)(v).
    (B) Size of specified ranges. The lowest and highest allocation 
rates in the range must be within five percent (not five percentage 
points) of the midpoint rate. If allocation rates are determined as a 
percentage of plan year compensation, the lowest and highest allocation 
rates need not be within five percent of the midpoint rate, if they are 
no more

[[Page 102]]

than one quarter of a percentage point above or below the midpoint rate.
    (vi) Consistency requirement. Allocation rates must be determined in 
a consistent manner for all employees for the plan year.
    (3) Satisfaction of section 410(b) by a rate group--(i) General 
rule. For purposes of determining whether a rate group satisfies section 
410(b), the rate group is treated as if it were a separate plan that 
benefits only the employees included in the rate group for the plan 
year. Thus, for example, under Sec. 1.401(a)(4)-1(c)(4)(iv), the ratio 
percentage of the rate group is determined taking into account all 
nonexcludable employees regardless of whether they benefit under the 
plan. Paragraph (c)(3) (ii) and (iii) of this section provide additional 
special rules for determining whether a rate group satisfies section 
410(b).
    (ii) Application of nondiscriminatory classification test. A rate 
group satisfies the nondiscriminatory classification test of 
Sec. 1.410(b)-4 (including the reasonable classification requirement of 
Sec. 1.410(b)-4(b)) if and only if the ratio percentage of the rate 
group is greater than or equal to the lesser of--
    (A) The midpoint between the safe and the unsafe harbor percentages 
applicable to the plan; and
    (B) The ratio percentage of the plan.
    (iii) Application of average benefit percentage test. A rate group 
satisfies the average benefit percentage test of Sec. 1.410(b)-5 if the 
plan of which it is a part satisfies Sec. 1.410(b)-5 (without regard to 
Sec. 1.410(b)-5(f)). In the case of a plan that relies on Sec. 1.410(b)-
5(f) to satisfy the average benefit percentage test, each rate group 
under the plan satisfies the average benefit percentage test (if 
applicable) only if the rate group separately satisfies Sec. 1.410(b)-
5(f).
    (4) Examples. The following examples illustrate the general test in 
this paragraph (c):

    Example 1. Employer X maintains two defined contribution plans, Plan 
A and Plan B, that are aggregated and treated as a single plan for 
purposes of sections 410(b) and 401(a)(4) pursuant to Sec. 1.410(b)-
7(d). For the 1994 plan year, Employee M has plan year compensation of 
$10,000 and receives an allocation of $200 under Plan A and an 
allocation of $800 under Plan B. Employee M's allocation rate under the 
aggregated plan for the 1994 plan year is 10 percent (i.e., $1,000 
divided by $10,000).
    Example 2. The employees in Plan C have the following allocation 
rates (expressed as a percentage of plan year compensation): 2.75 
percent, 2.80 percent, 2.85 percent, 3.25 percent, 6.65 percent, 7.33 
percent, 7.34 percent, and 7.35 percent. Because the first four rates 
are within a range of no more than one quarter of a percentage point 
above and below 3.0 percent (a midpoint rate chosen by the employer), 
under paragraph (c)(2)(v) of this section the employer may treat the 
employees who have those rates as having an allocation rate of 3.0 
percent (provided that the allocation rates of HCEs within the range 
generally are not significantly higher than the allocation rates of 
NHCEs within the range). Because the last four rates are within a range 
of no more than five percent above and below 7.0 percent (a midpoint 
rate chosen by the employer), the employer may treat the employees who 
have those rates as having an allocation rate of 7.0 percent (provided 
that the allocation rates of HCEs within the range generally are not 
significantly higher than the allocation rates of NHCEs within the 
range).
    Example 3. (a) Employer Y has only six nonexcludable employees, all 
of whom benefit under Plan D. The HCEs are H1 and H2, and the NHCEs are 
N1 through N4. For the 1994 plan year, H1 and N1 through N4 have an 
allocation rate of 5.0 percent of plan year compensation. For the same 
plan year, H2 has an allocation rate of 7.5 percent of plan year 
compensation.
    (b) There are two rate groups under Plan D. Rate group 1 consists of 
H1 and all those employees who have an allocation rate greater than or 
equal to H1's allocation rate (5.0 percent). Thus, rate group 1 consists 
of H1, H2, and N1 through N4. Rate group 2 consists only of H2 because 
no other employee has an allocation rate greater than or equal to H2's 
allocation rate (7.5 percent).
    (c) The ratio percentage for rate group 2 is zero percent--i.e., 
zero percent (the percentage of all nonhighly compensated nonexcludable 
employees who are in the rate group) divided by 50 percent (the 
percentage of all highly compensated nonexcludable employees who are in 
the rate group). Therefore rate group 2 does not satisfy the ratio 
percentage test under Sec. 1.410(b)-2(b)(2). Rate group 2 also does not 
satisfy the nondiscriminatory classification test of Sec. 1.410(b)-4 (as 
modified by paragraph (c)(3) of this section). Rate group 2 therefore 
does not satisfy section 410(b) and, as a result, Plan D does not 
satisfy the general test in paragraph (c)(1) of this section. This is 
true regardless of whether rate group 1 satisfies Sec. 1.410(b)-2(b)(2).
    Example 4. (a) The facts are the same as in Example 3, except that 
N4 has an allocation rate of 8.0 percent.

[[Page 103]]

    (b) There are two rate groups in Plan D. Rate group 1 consists of H1 
and all those employees who have an allocation rate greater than or 
equal to H1's allocation rate (5.0 percent). Thus, rate group 1 consists 
of H1, H2 and N1 through N4. Rate group 2 consists of H2, and all those 
employees who have an allocation rate greater than or equal to H2's 
allocation rate (7.5 percent). Thus, rate group 2 consists of H2 and N4.
    (c) Rate group 1 satisfies the ratio percentage test under 
Sec. 1.410(b)-2(b)(2) because the ratio percentage of the rate group is 
100 percent--i.e., 100 percent (the percentage of all nonhighly 
compensated nonexcludable employees who are in the rate group) divided 
by 100 percent (the percentage of all highly compensated nonexcludable 
employees who are in the rate group).
    (d) Rate group 2 does not satisfy the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) because the ratio percentage of the rate group is 
50 percent--i.e., 25 percent (the percentage of all nonhighly 
compensated nonexcludable employees who are in the rate group) divided 
by 50 percent (the percentage of all highly compensated nonexcludable 
employees who are in the rate group).
    (e) However, rate group 2 does satisfy the nondiscriminatory 
classification test of Sec. 1.410(b)-4 because the ratio percentage of 
the rate group (50 percent) is greater than the safe harbor percentage 
applicable to the plan under Sec. 1.410(b)-4(c)(4) (45.5 percent).
    (f) Under paragraph (c)(3)(iii) of this section, rate group 2 
satisfies the average benefit percentage test, if Plan D satisfies the 
average benefit percentage test. (The requirement that Plan D satisfy 
the average benefit percentage test applies even though Plan D satisfies 
the ratio percentage test and would ordinarily not need to run the 
average benefit percentage test.) If Plan D satisfies the average 
benefit percentage test, then rate group 2 satisfies section 410(b) and 
thus, Plan D satisfies the general test in paragraph (c)(1) of this 
section, because each rate group under the plan satisfies section 
410(b).
    Example 5. (a) Plan E satisfies section 410(b) by satisfying the 
nondiscriminatory classification test of Sec. 1.410(b)-4 and the average 
benefit percentage test of Sec. 1.410(b)-5 (without regard to 
Sec. 1.410(b)-5(f)). See Sec. 1.410(b)-2(b)(3). Plan E uses the facts-
and-circumstances requirements of Sec. 1.410(b)-4(c)(3) to satisfy the 
nondiscriminatory classification test of Sec. 1.410(b)-4. The safe and 
unsafe harbor percentages applicable to the plan under Sec. 1.410(b)-
4(c)(4) are 29 and 20 percent, respectively. Plan E has a ratio 
percentage of 22 percent.
    (b) Rate group 1 under Plan E has a ratio percentage of 23 percent. 
Under paragraph (c)(3)(ii) of this section, the rate group satisfies the 
nondiscriminatory classification requirement of Sec. 1.410(b)-4, because 
the ratio percentage of the rate group (23 percent) is greater than the 
lesser of--
    (1) The ratio percentage for the plan as a whole (22 percent); and
    (2) The midpoint between the safe and unsafe harbor percentages 
(24.5 percent).
    (c) Under paragraph (c)(3)(iii) of this section, the rate group 
satisfies section 410(b) because the plan satisfies the average benefit 
percentage test of Sec. 1.410(b)-5.

[T.D. 8485, 58 FR 46781, Sept. 3, 1993]



Sec. 1.401(a)(4)-3  Nondiscrimination in amount of employer-provided benefits under a defined benefit plan.

    (a) Introduction--(1) Overview. This section provides rules for 
determining whether the employer-provided benefits under a defined 
benefit plan are nondiscriminatory in amount as required by 
Sec. 1.401(a)(4)-1(b)(2)(iii). Certain defined benefit plans that 
provide uniform benefits are permitted to satisfy this requirement by 
meeting one of the safe harbors in paragraph (b) of this section. Plans 
that do not provide uniform benefits may satisfy this requirement by 
satisfying the general test in paragraph (c) of this section. Paragraph 
(d) of this section provides rules for determining the individual 
benefit accrual rates needed for the general test. Paragraph (e) of this 
section provides rules for determining compensation for purposes of 
applying the requirements of this section. Paragraph (f) of this section 
provides additional rules that apply generally for purposes of both the 
safe harbors in paragraph (b) of this section and the general test in 
paragraph (c) of this section. See Sec. 1.401(a)(4)-6 for rules for 
determining the amount of employer-provided benefits under a 
contributory DB plan, and for determining whether the employee-provided 
benefits under such a plan are nondiscriminatory in amount.
    (2) Alternative methods of satisfying nondiscriminatory amount 
requirement. A defined benefit plan is permitted to satisfy paragraph 
(b) or (c) of this section on a restructured basis pursuant to 
Sec. 1.401(a)(4)-9(c). Alternatively, a defined benefit plan is 
permitted to satisfy the nondiscriminatory amount requirement of 
Sec. 1.401(a)(4)-1(b)(2)(iii) on the basis of equivalent allocations 
pursuant to Sec. 1.401(a)(4)-8(c). In addition, a defined benefit plan 
that is part of a

[[Page 104]]

floor-offset arrangement is permitted to satisfy this section pursuant 
to Sec. 1.401(a)(4)-8(d).
    (b) Safe harbors--(1) In general. The employer-provided benefits 
under a defined benefit plan are nondiscriminatory in amount for a plan 
year if the plan satisfies each of the uniformity requirements of 
paragraph (b)(2) of this section and any one of the safe harbors in 
paragraphs (b)(3) (unit credit plans), (b)(4) (fractional accrual 
plans), and (b)(5) (insurance contract plans) of this section. Paragraph 
(b)(6) of this section provides exceptions for certain plan provisions 
that do not cause a plan to fail to satisfy this paragraph (b). 
Paragraph (f) of this section provides additional rules that apply in 
determining whether a plan satisfies this paragraph (b).
    (2) Uniformity requirements--(i) Uniform normal retirement benefit. 
The same benefit formula must apply to all employees. The benefit 
formula must provide all employees with an annual benefit payable in the 
same form commencing at the same uniform normal retirement age. The 
annual benefit must be the same percentage of average annual 
compensation or the same dollar amount for all employees who will have 
the same number of years of service at normal retirement age. (See 
Sec. 1.401(a)(4)-11(d)(3) regarding service that may be taken into 
account as years of service.) The annual benefit must equal the 
employee's accrued benefit at normal retirement age (within the meaning 
of section 411(a)(7)(A)(i)) and must be the normal retirement benefit 
under the plan (within the meaning of section 411(a)(9)).
    (ii) Uniform post-normal retirement benefit. With respect to an 
employee with a given number of years of service at any age after normal 
retirement age, the annual benefit commencing at that employee's age 
must be the same percentage of average annual compensation or the same 
dollar amount that would be payable commencing at normal retirement age 
to an employee who had that same number of years of service at normal 
retirement age.
    (iii) Uniform subsidies. Each subsidized optional form of benefit 
available under the plan must be currently available (within the meaning 
of Sec. 1.401(a)(4)-4(b)(2)) to substantially all employees. Whether an 
optional form of benefit is considered subsidized for this purpose may 
be determined using any reasonable actuarial assumptions.
    (iv) No employee contributions. The plan must not be a contributory 
DB plan.
    (v) Period of accrual. Each employee's benefit must be accrued over 
the same years of service that are taken into account in applying the 
benefit formula under the plan to that employee. For this purpose, any 
year in which the employee benefits under the plan (within the meaning 
of Sec. 1.410(b)-3(a)) is included as a year of service in which a 
benefit accrues. Thus, for example, a plan does not satisfy the safe 
harbor in paragraph (b)(4) of this section unless the plan uses the same 
years of service to determine both the normal retirement benefit under 
the plan's benefit formula and the fraction by which an employee's 
fractional rule benefit is multiplied to derive the employee's accrued 
benefit as of any plan year.
    (vi) Examples. The following examples illustrate the rules in this 
paragraph (b)(2):

    Example 1. Plan A provides a normal retirement benefit equal to two 
percent of average annual compensation times each year of service 
commencing at age 65 for all employees. Plan A provides that employees 
of Division S receive their benefit in the form of a straight life 
annuity and that employees of Division T receive their benefit in the 
form of a life annuity with an automatic cost-of-living increase. Plan A 
does not provide a uniform normal retirement benefit within the meaning 
of paragraph (b)(2)(i) of this section because the annual benefit is not 
payable in the same form to all employees.
    Example 2. Plan B provides a normal retirement benefit equal to 1.5 
percent of average annual compensation times each year of service at 
normal retirement age for all employees. The normal retirement age under 
the plan is the earlier of age 65 or the age at which the employee 
completes 10 years of service, but in no event earlier than age 62. Plan 
B does not provide a uniform normal retirement benefit within the 
meaning of paragraph (b)(2)(i) of this section because the same uniform 
normal retirement age does not apply to all employees.
    Example 3. Plan C is an accumulation plan under which the benefit 
for each year of service equals one percent of plan year compensation 
payable in the same form to all

[[Page 105]]

employees commencing at the same uniform normal retirement age. Under 
paragraph (e)(2) of this section, an accumulation plan may substitute 
plan year compensation for average annual compensation. Plan C provides 
a uniform normal retirement benefit within the meaning of paragraph 
(b)(2)(i) of this section, because all employees with the same number of 
years of service at normal retirement age will receive an annual benefit 
that is treated as the same percentage of average annual compensation.
    Example 4. The facts are the same as in Example 3, except that the 
benefit for each year of service equals one percent of plan year 
compensation increased by reference to the increase in the cost of 
living from the year of service to normal retirement age. Plan C does 
not provide a uniform normal retirement benefit, because the annual 
benefit defined by the benefit formula can vary for employees with the 
same number of years of service at normal retirement age, depending on 
the age at which those years of service were credited to the employee 
under the plan.
    Example 5. Plan D provides a normal retirement benefit of 50 percent 
of average annual compensation at normal retirement age (age 65) for 
employees with 30 years of service at normal retirement age. Plan D 
provides that, in the case of an employee with less than 30 years of 
service at normal retirement age, the normal retirement benefit is 
reduced on a pro rata basis for each year of service less than 30. 
However, if an employee with less than 30 years of service at normal 
retirement age continues to work past normal retirement age, Plan D 
provides that the additional years of service worked past normal 
retirement age are taken into account for purposes of the 30 years of 
service requirement. Thus, an employee who has 26 years of service at 
age 65 but who does not retire until age 69 with 30 years of service 
will receive a benefit of 50 percent of average annual compensation. 
Plan D provides uniform post-normal retirement benefits within the 
meaning of paragraph (b)(2)(ii) of this section.
    Example 6. (a) Plan E is amended on February 14, 1994, to provide an 
early retirement window benefit that consists of an unreduced early 
retirement benefit to employees who terminate employment after 
attainment of age 55 with 10 years of service and between June 1, 1994, 
and November 30, 1994. The early retirement window benefit is a single 
subsidized optional form of benefit. Paragraph (b)(2)(iii) of this 
section requires that the subsidized optional form of benefit be 
currently available (within the meaning of Sec. 1.401(a)(4)-4(b)(2)) to 
substantially all employees. Section 1.401(a)(4)-4(b)(2)(ii)(A)(2) 
provides that age and service requirements are not disregarded in 
determining the current availability of an optional form of benefit if 
those requirements must be satisfied within a specified period of time. 
Thus, the early retirement window benefit is not currently available to 
an employee unless the employee will satisfy the eligibility 
requirements for the early retirement window benefit by the close of the 
early retirement window benefit period. Plan E will fail to satisfy 
paragraph (b)(2)(iii) of this section unless substantially all of the 
employees satisfy the eligibility requirements for the early retirement 
window benefit by November 30, 1994. However, see Sec. 1.401(a)(4)-
9(c)(6), Example 2, for an example of how a plan with an early 
retirement window benefit may be restructured into two component plans, 
each of which satisfies the safe harbors of this paragraph (b).
    (b) A similar analysis would apply if, instead of an unreduced early 
retirement benefit, the early retirement window benefit consisted of a 
special schedule of early retirement factors, defined by starting with 
the plan's usual schedule and then treating each employee eligible for 
the early retirement window benefit as being five years older than the 
employee actually is, but not older than the employee's normal 
retirement age.
    Example 7. Plan F generally provides a normal retirement benefit of 
1.5 percent of an employee's average annual compensation multiplied by 
the employee's years of service with the employer. For employees 
transferred outside of the group of employees covered by the plan, the 
plan's benefit formula takes into account only years of service prior to 
the transfer, but determines average annual compensation taking into 
account section 414(s) compensation both before and after the transfer. 
Plan F does not satisfy the requirements of paragraph (b)(2)(v) of this 
section with respect to transferred employees, because their benefits 
are accrued over years of service (i.e., after transfer) that are not 
taken into account in applying the plan's benefit formula to them. 
However, see Example 2 of paragraph (b)(6)(x)(B) of this section for an 
example of how a plan that continues to take transferred employees' 
section 414(s) compensation into account after their transfer may still 
satisfy this paragraph (b).

    (3) Safe harbor for unit credit plans--(i) General rule. A plan 
satisfies the safe harbor in this paragraph (b)(3) for a plan year if it 
satisfies both of the following requirements:
    (A) The plan must satisfy the 133\1/3\ percent accrual rule of 
section 411(b)(1)(B).
    (B) Each employee's accrued benefit under the plan as of any plan 
year must be determined by applying the plan's benefit formula to the 
employee's years of service and (if applicable)

[[Page 106]]

average annual compensation, both determined as of that plan year.
    (ii) Example. The following example illustrates the rules in this 
paragraph (b)(3):

    Example. Plan A provides that the accrued benefit of each employee 
as of any plan year equals the employee's average annual compensation 
times a percentage that depends on the employee's years of service 
determined as of that plan year. The percentage is 2 percent for each of 
the first 10 years of service, plus 1.5 percent for each of the next 10 
years of service, plus 2 percent for all additional years of service. 
Plan A satisfies this paragraph (b)(3).

    (4) Safe harbor for plans using fractional accrual rule--(i) General 
rule. A plan satisfies the safe harbor in this paragraph (b)(4) for a 
plan year if it satisfies each of the following requirements:
    (A) The plan must satisfy the fractional accrual rule of section 
411(b)(1)(C).
    (B) Each employee's accrued benefit under the plan as of any plan 
year before the employee reaches normal retirement age must be 
determined by multiplying the employee's fractional rule benefit (within 
the meaning of Sec. 1.411(b)-1(b)(3)(ii)(A)) by a fraction, the 
numerator of which is the employee's years of service determined as of 
the plan year, and the denominator of which is the employee's projected 
years of service as of normal retirement age.
    (C) The plan must satisfy one of the following requirements:
    (1) Under the plan, it must be impossible for any employee to accrue 
in a plan year a portion of the normal retirement benefit described in 
paragraph (b)(2)(i) of this section that is more than one-third larger 
than the portion of the same benefit accrued in that or any other plan 
year by any other employee, when each portion of the benefit is 
expressed as a percentage of each employee's average annual compensation 
or as a dollar amount. In making this determination, actual and 
potential employees in the plan with any amount of service at normal 
retirement must be taken into account (other than employees with more 
than 33 years of service at normal retirement age). In addition, in the 
case of a plan that satisfies section 401(l) in form, an employee is 
treated as accruing benefits at a rate equal to the excess benefit 
percentage in the case of a defined benefit excess plan or at a rate 
equal to the gross benefit percentage in the case of an offset plan.
    (2) The normal retirement benefit under the plan must be a flat 
benefit that requires a minimum of 25 years of service at normal 
retirement age for an employee to receive the unreduced flat benefit, 
determined without regard to section 415. For this purpose, a flat 
benefit is a benefit that is the same percentage of average annual 
compensation or the same dollar amount for all employees who have a 
minimum number of years of service at normal retirement age (e.g., 50 
percent of average annual compensation), with a pro rata reduction in 
the flat benefit for employees who have less than the minimum number of 
years of service at normal retirement age. An employee is permitted to 
accrue the maximum benefit permitted under section 415 over a period of 
less than 25 years, provided that the flat benefit under the plan, 
determined without regard to section 415, can accrue over no less than 
25 years.
    (3) The plan must satisfy the requirements of paragraph 
(b)(4)(i)(C)(2) of this section (other than the requirement that the 
minimum number of years of service for receiving the unreduced flat 
benefit is at least 25 years), and, for the plan year, the average of 
the normal accrual rates for all nonhighly compensated nonexcludable 
employees must be at least 70 percent of the average of the normal 
accrual rates for all highly compensated nonexcludable employees. The 
averages in the preceding sentence are determined taking into account 
all nonexcludable employees (regardless of whether they benefit under 
the plan). In addition, contributions and benefits under other plans of 
the employer are disregarded. For purposes of this paragraph 
(b)(4)(i)(C)(3), normal accrual rates are determined under paragraph (d) 
of this section.
    (ii) Examples. The following examples illustrate the rules in this 
paragraph (b)(4). In each example, it is assumed that the plan has never 
permitted employee contributions.


[[Page 107]]


    Example 1. Plan A provides a normal retirement benefit equal to 1.6 
percent of average annual compensation times each year of service up to 
25. Plan A further provides that an employee's accrued benefit as of any 
plan year equals the employee's fractional rule benefit multiplied by a 
fraction, the numerator of which is the employee's years of service as 
of the plan year, and the denominator of which is the employee's 
projected years of service as of normal retirement age. The greatest 
benefit that an employee could accrue in any plan year is 1.6 percent of 
average annual compensation (this is the case for an employee with 25 or 
fewer years of projected service at normal retirement age). Among 
potential employees with 33 or fewer years of projected service at 
normal retirement age, the lowest benefit that an employee could accrue 
in any plan year is 1.212 percent of average annual compensation (this 
is the case for an employee with 33 years of projected service at normal 
retirement age). Plan A satisfies paragraph (b)(4)(i)(C)(1) of this 
section because 1.6 percent is not more than one third larger than 1.212 
percent.
    Example 2. Plan B provides a normal retirement benefit equal to 1.0 
percent of average annual compensation up to the integration level, and 
1.6 percent of average annual compensation above the integration level, 
times each year of service up to 35. Plan B further provides that an 
employee's accrued benefit as of any plan year equals the employee's 
fractional rule benefit multiplied by a fraction, the numerator of which 
is the employee's years of service as of the plan year and the 
denominator of which is the employee's projected years of service as of 
normal retirement age. For purposes of satisfying the one third larger 
rule in paragraph (b)(4)(i)(C)(1) of this section, because Plan B 
satisfies section 401(l) in form, all employees with less than 35 
projected years of service are assumed to accrue benefits at the rate of 
1.6 percent of average annual compensation (the excess benefit 
percentage under the plan). Plan B satisfies paragraph (b)(4)(i)(C) of 
this section because all employees with 33 or fewer years of projected 
service at normal retirement age accrue in each plan year a benefit of 
1.6 percent of average annual compensation.
    Example 3. Plan C provides a normal retirement benefit equal to four 
percent of average annual compensation times each year of service up to 
10 and one percent of average annual compensation times each year of 
service in excess of 10 and not in excess of 30. Plan C further provides 
that an employee's accrued benefit as of any plan year equals the 
employee's fractional rule benefit multiplied by a fraction, the 
numerator of which is the employee's years of service as of the plan 
year, and the denominator of which is the employee's projected years of 
service as of normal retirement age. The greatest benefit that an 
employee could accrue in any plan year is four percent of average annual 
compensation (this is the case for an employee with 10 or fewer years of 
projected service at normal retirement age). Among employees with 33 or 
fewer years of projected service at normal retirement age, the lowest 
benefit that an employee could accrue in a plan year is 1.82 percent of 
average annual compensation (this is the case of an employee with 33 
years of projected service at normal retirement age). Plan C fails to 
satisfy this paragraph (b)(4) because four percent is more than one 
third larger than 1.82 percent. See also Sec. 1.401(a)(4)-9(c)(6), 
Example 3.
    Example 4. Plan D provides a normal retirement benefit of 100 
percent of average annual compensation, reduced by four percentage 
points for each year of service below 25 the employee has at normal 
retirement age. Plan D further provides that an employee's accrued 
benefit as of any plan year is equal to the employee's fractional rule 
benefit multiplied by a fraction, the numerator of which is the 
employee's years of service as of the plan year, and the denominator of 
which is the employee's projected years of service at normal retirement 
age. In the case of an employee who has five years of service as of the 
current plan year, and who is projected to have 10 years of service at 
normal retirement age, the employee's fractional rule benefit would be 
40 percent of average annual compensation, and the employee's accrued 
benefit as of the current plan year would be 20 percent of average 
annual compensation (the fractional rule benefit multiplied by a 
fraction of five years over 10 years). Plan D satisfies this paragraph 
(b)(4).
    Example 5. The facts are the same as in Example 4, except that the 
normal retirement benefit is 125 percent of average annual compensation, 
reduced by five percentage points for each year of service below 25 that 
the employee has at normal retirement age. Plan D satisfies this 
paragraph (b)(4), even though an employee may accrue the maximum benefit 
allowed under section 415 (i.e., 100 percent of the participant's 
average compensation for the high three years of service) in less than 
25 years.
    Example 6. The facts are the same as in Example 1, except that the 
plan determines each employee's accrued benefit by multiplying the 
employee's projected normal retirement benefit (rather than the 
fractional rule benefit) by the fraction described in Example 1. In 
determining an employee's projected normal retirement benefit, the plan 
defines each employee's average annual compensation as the average 
annual compensation the employee would have at normal retirement age if 
the employee's annual section 414(s) compensation in future plan years 
equaled the employee's plan year compensation for

[[Page 108]]

the prior plan year. Under these facts, Plan A does not satisfy 
paragraph (b)(4)(i)(B) of this section because the employee's accrued 
benefit is determined on the basis of a projected normal retirement 
benefit that is not the same as the employee's fractional rule benefit 
determined in accordance with Sec. 1.411(b)-1(b)(3)(ii)(A).
    Example 7. Plan E provides a normal retirement benefit of 50 percent 
of average annual compensation, with a pro rata reduction for employees 
with less than 30 years of service at normal retirement age. Plan E 
further provides that an employee's accrued benefit as of any plan year 
is equal to the employee's fractional rule benefit multiplied by a 
fraction, the numerator of which is the employee's years of service as 
of the plan year, and the denominator of which is the employee's 
projected years of service at normal retirement age. For purposes of 
determining this fraction, the plan limits the years of service taken 
into account for an employee to the number of years the employee has 
participated in the plan. However, all years of service (including years 
of service before the employee commenced participation in the plan) are 
taken into account in determining an employee's normal retirement 
benefit under the plan's benefit formula. Plan E fails to satisfy this 
paragraph (b)(4) because the years of service over which benefits accrue 
differ from the years of service used in applying the benefit formula 
under the plan. See paragraph (b)(2)(v) of this section.
    Example 8. (a) Plan F provides a normal retirement benefit equal to 
2.0 percent of average annual compensation, plus 0.65 percent of average 
annual compensation above covered compensation, for each year of service 
up to 25. Plan F further provides that an employee's accrued benefit as 
of any plan year equals the sum of--
    (1) The employee's fractional rule benefit (determined as if the 
normal retirement benefit under the plan equaled 2.0 percent of average 
annual compensation for each year of service up to 25) multiplied by a 
fraction, the numerator of which is the employee's years of service as 
of the plan year and the denominator of which is the employee's 
projected years of service as of normal retirement age; plus
    (2) 0.65 percent of the employee's average annual compensation above 
covered compensation multiplied by the employee's years of service (up 
to 25) as of the current plan year.
    (b) Although Plan F satisfies the fractional accrual rule of section 
411(b)(1)(C), the plan fails to satisfy this paragraph (b)(4) because 
the plan does not determine employees' accrued benefits in accordance 
with paragraph (b)(4)(i)(B) of this section.

    (5) Safe harbor for insurance contract plans. A plan satisfies the 
safe harbor in this paragraph (b)(5) if it satisfies each of the 
following requirements:
    (i) The plan must satisfy the accrual rule of section 411(b)(1)(F).
    (ii) The plan must be an insurance contract plan within the meaning 
of section 412(i).
    (iii) The benefit formula under the plan must be one that would 
satisfy the requirements of paragraph (b)(4) of this section if the 
stated normal retirement benefit under the formula accrued ratably over 
each employee's period of plan participation through normal retirement 
age in accordance with paragraph (b)(4)(i)(B) of this section. Thus, the 
benefit formula may not recognize years of service before an employee 
commenced participation in the plan because, otherwise, the definition 
of years of service for determining the normal retirement benefit would 
differ from the definition of years of service for determining the 
accrued benefit under paragraph (b)(4)(i)(B) of this section. See 
paragraph (b)(4)(ii), Example 7, of this section. Notwithstanding the 
foregoing, an insurance contract plan adopted and in effect on September 
19, 1991, may continue to recognize years of service prior to an 
employee's participation in the plan for an employee who is a 
participant in the plan on that date to the extent provided by the 
benefit formula in the plan on such date.
    (iv) The scheduled premium payments under an individual or group 
insurance contract used to fund an employee's normal retirement benefit 
must be level annual payments to normal retirement age. Thus, payments 
may not be scheduled to cease before normal retirement age.
    (v) The premium payments for an employee who continues benefiting 
after normal retirement age must be equal to the amount necessary to 
fund additional benefits that accrue under the plan's benefit formula 
for the plan year.
    (vi) Experience gains, dividends, forfeitures, and similar items 
must be used solely to reduce future premiums.
    (vii) All benefits must be funded through contracts of the same 
series. Among other requirements, contracts of the same series must have 
cash values based on the same terms (including interest and mortality 
assumptions)

[[Page 109]]

and the same conversion rights. A plan does not fail to satisfy this 
requirement, however, if any change in the contract series or insurer 
applies on the same terms to all employees. But see Sec. 1.401(a)(4)-
5(a)(4), Example 12 (change in insurer considered a plan amendment 
subject to Sec. 1.401(a)(4)-5(a)).
    (viii) If permitted disparity is taken into account, the normal 
retirement benefit stated under the plan's benefit formula must satisfy 
Sec. 1.401(l)-3. For this purpose, the 0.75-percent factor in the 
maximum excess or offset allowance in Sec. 1.401(l)-3(b)(2)(i) or 
(b)(3)(i), respectively, adjusted in accordance with Sec. 1.401(l)-
3(d)(9) and (e), is reduced by multiplying the factor by 0.80.
    (6) Use of safe harbors not precluded by certain plan provisions--
(i) In general. A plan does not fail to satisfy this paragraph (b) 
merely because the plan contains one or more of the provisions described 
in this paragraph (b)(6). Unless otherwise provided, any such provision 
must apply uniformly to all employees.
    (ii) Section 401(l) permitted disparity. The plan takes permitted 
disparity into account in a manner that satisfies section 401(l) in 
form. Thus, differences in employees' benefits under the plan 
attributable to uniform disparities permitted under Sec. 1.401(l)-3 
(including differences in disparities that are deemed uniform under 
Sec. 1.401(l)-3(c)(2)) do not cause a plan to fail to satisfy this 
paragraph (b).
    (iii) Different entry dates. The plan provides one or more entry 
dates during the plan year as permitted by section 410(a)(4).
    (iv) Certain conditions on accruals. The plan provides that an 
employee's accrual for the plan year is less than a full accrual 
(including a zero accrual) because of a plan provision permitted by the 
year-of-participation rules of section 411(b)(4).
    (v) Certain limits on accruals. The plan limits benefits otherwise 
provided under the benefit formula or accrual method to a maximum dollar 
amount or to a maximum percentage of average annual compensation (e.g., 
by limiting service taken into account in the benefit formula) or in 
accordance with section 401(a)(5)(D), applies the limits of section 415, 
or limits the dollar amount of compensation taken into account in 
determining benefits.
    (vi) Dollar accrual per uniform unit of service. The plan determines 
accruals based on the same dollar amount for each uniform unit of 
service (not to exceed one week) performed by each employee with the 
same number of years of service under the plan during the plan year. The 
preceding sentence applies solely for purposes of the unit credit safe 
harbor in paragraph (b)(3) of this section.
    (vii) Prior benefits accrued under a different formula. The plan 
determines benefits for years of service after a fresh-start date for 
all employees under a benefit formula and accrual method that differ 
from the benefit formula and accrual method previously used to determine 
benefit accruals for employees in a fresh-start group for years of 
service before the fresh-start date. This paragraph (b)(6)(vii) applies 
solely to plans that satisfy Sec. 1.401(a)(4)-13(c) with respect to the 
fresh start.
    (viii) Employee contributions. The plan is a contributory DB plan 
that would satisfy the requirements of paragraph (b) of this section if 
the plan's benefit formula provided benefits at employees' employer-
provided benefit rates determined under Sec. 1.401(a)(4)-6(b). This 
paragraph (b)(6)(viii) does not apply to a plan tested under paragraph 
(b)(4) or (b)(5) of this section unless the plan satisfies one of the 
methods in Sec. 1.401(a)(4)-6 (b)(4) through (b)(6). A minimum benefit 
added to the plan solely to satisfy Sec. 1.401(a)(4)-6(b)(3) is not 
taken into account in determining whether this paragraph (b)(6)(viii) is 
satisfied.
    (ix) Certain subsidized optional forms. The plan provides a 
subsidized optional form of benefit that is available to fewer than 
substantially all employees because the optional form of benefit has 
been eliminated prospectively as provided in Sec. 1.401(a)(4)-4(b)(3).
    (x) Lower benefits for HCEs--(A) General rule. The benefits 
(including any subsidized optional form of benefit) provided to one or 
more HCEs under the plan are inherently less valuable to those HCEs 
(determined by applying the principles of Sec. 1.401(a)(4)-4(d)(4)) than 
the benefits that would otherwise be provided to those HCEs if the plan

[[Page 110]]

satisfied this paragraph (b) (determined without regard to this 
paragraph (b)(6)(x)). These inherently less valuable benefits are deemed 
to satisfy this paragraph (b).
    (B) Examples. The following examples illustrate the rules in this 
paragraph (b)(6)(x):

    Example 1. Plan A would satisfy this paragraph (b) (determined 
without regard to this paragraph (b)(6)(x)), except for the fact that it 
fails to satisfy the requirement of paragraph (b)(2)(iii) of this 
section (i.e., a subsidized optional form must be available to 
substantially all employees on similar terms). Each subsidized optional 
form in the plan is available to all the NHCEs on similar terms, but one 
of the subsidized optional forms of benefit is not available to any of 
the HCEs. Plan A satisfies this paragraph (b), because Plan A is a safe 
harbor plan with respect to the NHCEs and provides inherently less 
valuable benefits to the HCEs.
    Example 2. (a) Plan B would satisfy this paragraph (b) (determined 
without regard to this paragraph (b)(6)(x)), except for the fact that 
some employees are not being credited with years of service under the 
plan, but are continuing to accrue benefits as a result of compensation 
increases. These are employees who have been transferred from the 
employer that sponsors Plan B to another member of the controlled group 
whose employees are not covered by Plan B. For these employees, Plan B 
fails to satisfy the requirement of paragraph (b)(2)(v) of this section 
(i.e., each employee's benefit must accrue over the same years of 
service used in applying the benefit formula).
    (b) Plan B is restructured into two component plans under the 
provisions of Sec. 1.401(a)(4)-9(c). One component plan (Component Plan 
B1) consists of all NHCEs who are not being credited with years of 
service under the plan's benefit formula but are continuing to accrue 
benefits as a result of compensation increases, and the other component 
plan (Component Plan B2) consists of the balance of the employees.
    (c) Component Plan B1 satisfies this section and section 410(b), 
because it benefits only NHCEs.
    (d) Component Plan B2 is treated as satisfying this paragraph (b), 
because Plan B would satisfy this paragraph (b) (determined without 
regard to this paragraph (b)(6)(x)) with respect to the employees in 
Component Plan B2 but for the fact that it provides inherently less 
valuable benefits to some HCEs in that component plan (i.e., the 
employees who are credited only with compensation increases rather than 
both years of service and compensation increases).
    (e) Under Sec. 1.401(a)(4)-9(c), if Component Plan B2 satisfies 
section 410(b), then Plan B satisfies this section.

    (xi) Multiple formulas--(A) General rule. The plan provides that an 
employee's benefit under the plan is the greater of the benefits 
determined under two or more formulas, or is the sum of the benefits 
determined under two or more formulas. This paragraph (b)(6)(xi) does 
not apply to a plan unless each of the formulas under the plan satisfies 
the requirements of paragraph (b)(6)(xi) (B) through (D) of this 
section.
    (B) Sole formulas. The formulas must be the only formulas under the 
plan.
    (C) Separate testing. Each of the formulas must separately satisfy 
the uniformity requirements of paragraph (b)(2) of this section and also 
separately satisfy one of the safe harbors in paragraphs (b)(3) through 
(b)(5) of this section. A formula that is available solely to some or 
all NHCEs is deemed to satisfy this paragraph (b)(6)(xi)(C).
    (D) Availability--(1) General rule. All of the formulas must be 
available on the same terms to all employees.
    (2) Formulas for NHCEs. A formula does not fail to be available on 
the same terms to all employees merely because the formula is not 
available to any HCEs, but is available to some or all NHCEs on the same 
terms as all of the other formulas in the plan.
    (3) Top-heavy formulas. Rules parallel to those in Sec. 1.401(a)(4)-
2(b)(4)(vi)(D)(3) apply in the case of a plan that provides the greater 
of the benefits under two or more formulas, one of which is a top-heavy 
formula. For purposes of this paragraph (b)(6)(xi)(D)(3), a top-heavy 
formula is a formula that provides a benefit equal to the minimum 
benefit described in section 416(c)(1) (taking into account, if 
applicable, the modification in section 416(h)(2)(A)(ii)(I)).
    (E) Provisions may be applied more than once. The provisions of this 
paragraph (b)(6)(xi) may be applied more than once. See 
Sec. 1.401(a)(4)-2(b)(4)(vi)(E) for an example of the application of 
these provisions more than once.
    (F) Examples. The following examples illustrate the rules in this 
paragraph (b)(6)(xi):


[[Page 111]]


    Example 1. Under Plan A, each employee's benefit equals the sum of 
the benefits determined under two formulas. The first formula provides 
one percent of average annual compensation per year of service. The 
second formula provides $10 per year of service. Plan A is eligible to 
apply the rules in this paragraph (b)(6)(xi).
    Example 2. Under Plan B, each employee's benefit equals the greater 
of the benefits determined under two formulas. The first formula 
provides $15 per year of service and is available to all employees who 
complete at least 500 hours of service during the plan year. The second 
formula provides 1.5 percent of average annual compensation per year of 
service and is available to all employees who complete at least 1,000 
hours of service during the plan year. Plan B does not satisfy this 
paragraph (b)(6)(xi) because the two formulas are not available on the 
same terms to all employees.
    Example 3. Under Plan C, each employee's benefit equals the greater 
of the benefits determined under two formulas. The first formula 
provides $15 per year of service and is available to all employees who 
complete at least 1,000 hours of service during the plan year. The 
second formula provides the minimum benefit described in section 
416(c)(1) and is available to all non-key employees who complete at 
least 1,000 hours of service during the plan year. Plan C does not 
satisfy the general rule in paragraph (b)(6)(xi)(D)(1) of this section 
because the two formulas are not available on the same terms to all 
employees (i.e., the second formula is only available to all non-key 
employees). Nonetheless, because the second formula is a top-heavy 
formula, the special availability rules for top-heavy formulas in 
paragraph (b)(6)(xi)(D)(3) of this section apply. Thus, the second 
formula does not fail to be available on the same terms as the first 
formula merely because the second formula is available solely to all 
non-key employees on the same terms. This is true even if the plan 
conditions the availability of the second formula on the plan's being 
top-heavy for the plan year.
    Example 4. Under Plan D, each employee's benefit equals the greater 
of the benefits determined under two formulas. The first formula is 
available to all employees and provides a benefit equal to 1.5 percent 
of average annual compensation per year of service. The second formula 
is only available to NHCEs and provides a benefit equal to two percent 
of average annual compensation per year of service, minus two percent of 
the primary insurance amount per year of service. The amount of the 
offset is not limited to the maximum permitted offset under 
Sec. 1.401(l)-3(b). Under paragraph (b)(6)(xi)(D)(2) of this section, 
both formulas are treated as available to all employees on the same 
terms. Furthermore, even though the second formula does not satisfy any 
of the safe harbors in this paragraph (b), the formula is deemed to 
satisfy the separate testing requirement under paragraph (b)(6)(xi)(C) 
of this section, because the formula is available solely to some or all 
NHCEs.
    Example 5. Plan E is a unit credit plan that provides a benefit of 
one percent of average annual compensation per year of service to all 
employees. In 1994, the plan is amended to provide a benefit of two 
percent of average annual compensation per year of service after 1993, 
while continuing to provide a benefit of one percent of average annual 
compensation per year of service for all years of service before 1994. 
Thus, the plan's amended benefit formula provides a benefit equal to the 
sum of the benefits determined under two benefit formulas: one percent 
of average annual compensation per year of service, plus one percent of 
average annual compensation per year of service after 1993. Plan E 
satisfies this paragraph (b)(6)(xi).
    Example 6. The facts are the same as in Example 5, except that the 
plan amendment in 1994 decreases the benefit to 0.75 percent of average 
annual compensation per year of service after 1993, while retaining the 
one-percent formula for all years of service before 1994. Thus, the 
plan's amended benefit formula provides a benefit equal to the sum of 
the benefits determined under two benefit formulas: 0.75 percent of 
average annual compensation per year of service, plus 0.25 percent of 
average annual compensation per year of service before 1994. Under these 
facts, the second formula does not separately satisfy any of the safe 
harbors in this paragraph (b) because the years of service over which 
each employee's benefit accrues under the second formula (i.e., all 
years of service) are not the same years of service that are taken into 
account in applying the benefit formula under the plan to that employee 
(i.e., years of service before 1994). See paragraph (b)(2)(v) of this 
section. But see paragraph (b)(6)(vii) of this section and 
Sec. 1.401(a)(4)-13, which provide rules under which Plan E, as amended, 
may be able to satisfy this paragraph (b).
    Example 7. Plan F provides a benefit to all employees of one percent 
of average annual compensation per year of service. Employee M was hired 
as the president of the employer in December 1994 and was not a HCE 
under section 414(q) during the 1994 calendar plan year. In 1994, Plan F 
is amended to provide a benefit that is the greater of the benefit 
determined under the pre-existing formula in the plan and a new formula 
that is available solely to some NHCEs (including Employee M). The new 
formula does not satisfy the uniformity requirements of paragraph (b)(2) 
of this section, because it provides a different benefit for some NHCEs 
than for other NHCEs. As a result of this change, Employee M receives a 
higher accrual in 1994 than the

[[Page 112]]

NHCEs who are not eligible for the new formula. In 1995, when Employee M 
first becomes a HCE, the second formula no longer applies to Employee M. 
It would be inconsistent with the purpose of preventing discrimination 
in favor of HCEs for Plan F to use the special rule for a formula that 
is available solely to some or all NHCEs to satisfy the separate testing 
requirement of paragraph (b)(6)(xi)(C) of this section for the 1994 
calendar plan year. See Sec. 1.401(a)(4)-1(c)(2).
    (c) General test for nondiscrimination in amount of benefits--(1) 
General rule. The employer-provided benefits under a defined benefit 
plan are nondiscriminatory in amount for a plan year if each rate group 
under the plan satisfies section 410(b). For purposes of this paragraph 
(c)(1), a rate group exists under a plan for each HCE and consists of 
the HCE and all other employees (both HCEs and NHCEs) who have a normal 
accrual rate greater than or equal to the HCE's normal accrual rate, and 
who also have a most valuable accrual rate greater than or equal to the 
HCE's most valuable accrual rate. Thus, an employee is in the rate group 
for each HCE who has a normal accrual rate less than or equal to the 
employee's normal accrual rate, and who also has a most valuable accrual 
rate less than or equal to the employee's most valuable accrual rate.
    (2) Satisfaction of section 410(b) by a rate group. For purposes of 
determining whether a rate group satisfies section 410(b), the same 
rules apply as in Sec. 1.401(a)(4)-2(c)(3). See paragraph (c)(4) of this 
section and Sec. 1.401(a)(4)-2(c)(4), Example 3 through Example 5, for 
examples of this rule.
    (3) Certain violations disregarded. A plan is deemed to satisfy 
paragraph (c)(1) of this section if the plan would satisfy that 
paragraph by treating as not benefiting no more than five percent of the 
HCEs in the plan, and the Commissioner determines that, on the basis of 
all of the relevant facts and circumstances, the plan does not 
discriminate with respect to the amount of employer-provided benefits. 
For this purpose, five percent of the number of HCEs may be determined 
by rounding to the nearest whole number (e.g., 1.4 rounds to 1 and 1.5 
rounds to 2). Among the relevant factors that the Commissioner may 
consider in making this determination are--
    (i) The extent to which the plan has failed the test in paragraph 
(c)(1) of this section;
    (ii) The extent to which the failure is for reasons other than the 
design of the plan;
    (iii) Whether the HCEs causing the failure are five-percent owners 
or are among the highest paid nonexcludable employees;
    (iv) Whether the failure is attributable to an event that is not 
expected to recur (e.g., a plant closing); and
    (v) The extent to which the failure is attributable to benefits 
accrued under a prior benefit structure or to benefits accrued when a 
participant was not a HCE.
    (4) Examples. The following examples illustrate the rules in this 
paragraph (c):
    Example 1. (a) Employer X has 1100 nonexcludable employees, N1 
through N1000, who are NHCEs, and H1 through H100, who are HCEs. 
Employer X maintains Plan A, a defined benefit plan that benefits all of 
these nonexcludable employees. The normal and most valuable accrual 
rates (determined as a percentage of average annual compensation) for 
the employees in Plan A for the 1994 plan year are listed in the 
following table.

------------------------------------------------------------------------
                                                                 Most   
                                                     Normal    valuable 
                     Employee                       accrual     accrual 
                                                      rate       rate   
------------------------------------------------------------------------
N1 through N100..................................        1.0        1.4 
N101 through N500................................        1.5        3.0 
N501 through N750................................        2.0        2.65
N751 through N1000...............................        2.3        2.8 
H1 through H50...................................        1.5        2.0 
H51 through H100.................................        2.0        2.65
------------------------------------------------------------------------

    (b) There are 100 rate groups in Plan A because there are 100 HCEs 
in Plan A.
    (c) Rate group 1 consists of H1 and all those employees who have a 
normal accrual rate greater than or equal to H1's normal accrual rate 
(1.5 percent) and who also have a most valuable accrual rate greater 
than or equal to H1's most valuable accrual rate (2.0 percent). Thus, 
rate group 1 consists of H1 through H100 and N101 through N1000.
    (d) Rate group 1 satisfies the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) because the ratio percentage of the rate group is 
90 percent, i.e., 90 percent (the percentage of all nonhighly 
compensated nonexcludable employees who are in the rate group) divided 
by 100 percent (the percentage of all highly compensated nonexcludable 
employees who are in the rate group).

[[Page 113]]

    (e) Because H1 through H50 have the same normal accrual rates and 
the same most valuable accrual rates, the rate group with respect to 
each of them is identical. Thus, because rate group 1 satisfies section 
410(b), rate groups 2 through 50 also satisfy section 410(b).
    (f) Rate group 51 consists of H51 and all those employees who have a 
normal accrual rate greater than or equal to H51's normal accrual rate 
(2.0 percent) and who also have a most valuable accrual rate greater 
than or equal to H51's most valuable accrual rate (2.65 percent). Thus, 
rate group 51 consists of H51 through H100 and N501 through N1000. (Even 
though N101 through N500 have a most valuable accrual rate (3.0 percent) 
greater than H51's most valuable accrual rate (2.65 percent), they are 
not included in this rate group because their normal accrual rate (1.5 
percent) is less than H51's normal accrual rate (2.0 percent).)
    (g) Rate group 51 satisfies the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) because the ratio percentage of the rate group is 
100 percent, i.e., 50 percent (the percentage of all nonhighly 
compensated nonexcludable employees who are in the rate group) divided 
by 50 percent (the percentage of all highly compensated nonexcludable 
employees who are in the rate group).
    (h) Because H51 through H100 have the same normal accrual rates and 
the same most valuable accrual rates, the rate group with respect to 
each of them is identical. Thus, because rate group 51 satisfies section 
410(b), rate groups 52 through 100 also satisfy section 410(b).
    (i) The employer-provided benefits under Plan A are 
nondiscriminatory in amount because each rate group under the plan 
satisfies section 410(b).
    Example 2. The facts are the same as in Example 1, except that H96 
has a most valuable accrual rate of 3.5. Each of the rate groups is the 
same as in Example 1, except that rate group 96 consists solely of H96 
because no other employee has a most valuable accrual rate greater than 
3.5. Because the plan would satisfy the test in paragraph (c)(1) of this 
section by treating H96 (who constitutes less than five percent of the 
HCEs in the plan) as not benefiting, the Commissioner may determine 
under paragraph (c)(3) of this section that, on the basis of all of the 
relevant facts and circumstances, the plan does not discriminate with 
respect to the amount of benefits.

    (d) Determination of accrual rates--(1) Definitions--(i) Normal 
accrual rate. The normal accrual rate for an employee for a plan year is 
the increase in the employee's accrued benefit (within the meaning of 
section 411(a)(7)(A)(i)) during the measurement period, divided by the 
employee's testing service during the measurement period, and expressed 
either as a dollar amount or as a percentage of the employee's average 
annual compensation.
    (ii) Most valuable accrual rate. The most valuable accrual rate for 
an employee for a plan year is the increase in the employee's most 
valuable optional form of payment of the accrued benefit during the 
measurement period, divided by the employee's testing service during the 
measurement period, and expressed either as a dollar amount or as a 
percentage of the employee's average annual compensation. The employee's 
most valuable optional form of payment of the accrued benefit is 
determined by calculating for the employee the normalized QJSA 
associated with the accrued benefit that is potentially payable in the 
current or any future plan year at any age under the plan and selecting 
the largest (per year of testing service). If the plan provides a QSUPP, 
the most valuable accrual rate also takes into account the QSUPP payable 
in conjunction with the QJSA at each age under the plan. Thus, the most 
valuable accrual rate reflects the value of all benefits accrued or 
treated as accrued under section 411(d)(6) that are payable in any form 
and at any time under the plan, including early retirement benefits, 
retirement-type subsidies, early retirement window benefits, and QSUPPs. 
In addition, the most valuable accrual rate must take into account any 
such benefits that are available during a plan year, even if the 
benefits cease to be available before the end of the current or any 
future plan year.
    (iii) Measurement period. The measurement period can be--
    (A) The current plan year;
    (B) The current plan year and all prior years; or
    (C) The current plan year and all prior and future years.
    (iv) Testing service--(A) General rule. Testing service means an 
employee's years of service as defined in the plan for purposes of 
applying the benefit formula under the plan, subject to the requirements 
of paragraph (d)(1)(iv)(B) of this section. Alternatively, testing 
service means service determined for all employees in a reasonable 
manner

[[Page 114]]

that satisfies the requirements of paragraph (d)(1)(iv)(B) of this 
section. For example, the number of plan years that an employee has 
benefited under the plan within the meaning of Sec. 1.410(b)-3(a) is an 
acceptable definition of testing service because it determines service 
in a reasonable manner and satisfies paragraph (d)(1)(iv)(B) of this 
section. See also Sec. 1.401(a)(4)-11(d)(3) (additional limits on 
service that may be taken into account as testing service).
    (B) Requirements for testing service--(1) Employees not credited 
with years of service under the benefit formula. An employee must be 
credited with testing service for any year in which the employee 
benefits under the plan (within the meaning of Sec. 1.410(b)-3(a)), 
unless that year is part of a period of service that may not be taken 
into account under Sec. 1.401(a)(4)-11(d)(3). This rule applies even if 
the employee does not receive service credit under the benefit formula 
for that year (e.g., because of a service cap in the benefit formula or 
because of a transfer out of the group of employees covered by the 
plan).
    (2) Current year testing service. In the case of a measurement 
period that is the current plan year, testing service for the plan year 
equals one (1).
    (2) Rules of application--(i) Consistency requirement. Both normal 
and most valuable accrual rates must be determined in a consistent 
manner for all employees for the plan year. Thus, for example, the same 
measurement periods must be used, and the rules of this paragraph (d)(2) 
and any available options described in paragraph (d)(3) of this section 
must be applied consistently. If plan benefits are not expressed as 
straight life annuities beginning at employees' testing ages, they must 
be normalized.
    (ii) Determining plan benefits, service and compensation--(A) In 
general. Potential plan benefits, testing service, and average annual 
compensation must be determined in a reasonable manner, reflecting 
actual or projected service and compensation only through the end of the 
measurement period. The determination of potential plan benefits is not 
reasonable if it incorporates an assumption that, in future years, an 
employee's compensation will increase or the employee will terminate 
employment before the employee's testing age (other than the assumptions 
under paragraph (d)(1)(ii) of this section that the employee's service 
will end in connection with the payment of each potential QJSA in future 
years).
    (B) Section 415 limits. For purposes of determining accrual rates 
under this paragraph (d), plan benefits are generally determined without 
regard to whether those benefits are permitted to be paid under section 
415. However, plan provisions implementing any of the limits of section 
415 may be taken into account in applying this paragraph (d) if the plan 
does not provide for benefit increases resulting from section 415(d)(1) 
adjustments for former employees who were employees in a plan year in 
which such plan provisions were taken into account in applying this 
paragraph (d). If the limits of section 415 are taken into account under 
this paragraph (d)(2)(ii)(B) as of the end of the measurement period, 
they must also be taken into account as of the beginning of the 
measurement period. If the limits of section 415 are not taken into 
account in testing the plan for the current plan year, but were taken 
into account in testing the plan for the preceding plan year, any 
resulting increase in the accrued benefits taken into account in testing 
the plan is treated as an increase in accrued benefits during the 
current plan year.
    (iii) Requirements for measurement period that includes future 
years--(A) Discriminatory pattern of accruals. A measurement period that 
includes future years (as described in paragraph (d)(1)(iii)(C) of this 
section) may not be used if the pattern of accruals under the plan 
discriminates in favor of HCEs (i.e., if projected benefits for HCEs are 
relatively frontloaded when compared to the degree of front loading or 
backloading for NHCEs). This determination is made based on all of the 
relevant facts and circumstances.
    (B) Future-period limitation. Future years beginning after an 
employee's attainment of the employee's testing age (or after the 
employee's assumed termination in the case of most valuable accrual 
rates) may not be included in the measurement period.

[[Page 115]]

    (3) Optional rules--(i) Imputation of permitted disparity. The 
disparity permitted under section 401(l) may be imputed in accordance 
with the rules of Sec. 1.401(a)(4)-7.
    (ii) Grouping of accrual rates--(A) General rule. An employer may 
treat all employees who have accrual rates within a specified range 
above and below a midpoint rate chosen by the employer as having an 
accrual rate equal to the midpoint rate within that range. Accrual rates 
within a given range may not be grouped under this paragraph (d)(3)(ii) 
if the accrual rates of HCEs within the range generally are 
significantly higher than the accrual rates of NHCEs in the range. The 
specified ranges within which all employees are treated as having the 
same accrual rate may not overlap and may be no larger than provided in 
paragraph (d)(3)(ii)(B) of this section. Accrual rates of employees that 
are not within any of these specified ranges are determined without 
regard to this paragraph (d)(3)(ii).
    (B) Size of specified ranges. In the case of normal accrual rates, 
the lowest and highest accrual rates in the range must be within five 
percent (not five percentage points) of the midpoint rate. In the case 
of most valuable accrual rates, the lowest and highest accrual rates in 
the range must be within 15 percent (not 15 percentage points) of the 
midpoint rate. If accrual rates are determined as a percentage of 
average annual compensation, the lowest and highest accrual rates need 
not be within five percent (or 15 percent) of the midpoint rate, if they 
are no more than one twentieth of a percentage point above or below the 
midpoint rate.
    (iii) Fresh-start alternative--(A) General rule. Notwithstanding the 
definition of measurement period provided in paragraph (d)(1)(iii) of 
this section, a measurement period for a fresh-start group is permitted 
to be limited to the period beginning after the fresh-start date with 
respect to that group if the plan makes a fresh start that satisfies 
Sec. 1.401(a)(4)-13(c) (without regard to Sec. 1.401(a)(4)-13(c)(2)(i) 
and (ii)). If the measurement period is so limited or the measurement 
period is the plan year (whether or not so limited), any compensation 
adjustments during the measurement period to the frozen accrued benefit 
as of the fresh-start date that are permitted under the rules of 
Sec. 1.401(a)(4)-13(d) may be disregarded in determining the increase in 
accrued benefits during the measurement period, but only if--
    (1) The plan makes a fresh start as of the fresh-start date that 
satisfies Sec. 1.401(a)(4)-13(c) (without regard to Sec. 1.401(a)(4)-
13(c)(2)(ii)) in conjunction with a bona fide amendment to the benefit 
formula or accrual method under the plan; and
    (2) The amendment provides for adjustments to employees' frozen 
accrued benefits as of the fresh-start date in accordance with the rules 
of Sec. 1.401(a)(4)-13(d).
    (B) Application of consistency requirements. Limiting the 
application of the fresh-start alternative in this paragraph (d)(3)(iii) 
to a fresh-start group that consists of fewer than all employees does 
not violate the consistency requirement of paragraph (d)(2)(i) of this 
section.
    (iv) Floor on most valuable accrual rate. In lieu of determining an 
employee's most valuable accrual rate in accordance with the definition 
in paragraph (d)(1)(ii) of this section, an employer may determine an 
employee's most valuable accrual rate for the current plan year as the 
employee's highest most valuable accrual rate determined for any prior 
plan year. This option may be used only if the employee's normal accrual 
rate has not changed significantly from the normal accrual rate for the 
relevant prior plan year and, there have been no plan amendments in the 
interim period since that prior plan year that affect the determination 
of most valuable accrual rates.
    (4) Examples. The following examples illustrate the rules in this 
paragraph (d):

    Example 1. The employees in Plan A have the following normal accrual 
rates (expressed as percentage of average annual compensation): 0.8 
percent, 0.83 percent, 0.9 percent, 1.9 percent, 2.0 percent, and 2.1 
percent. Because the first three rates are within a range of no more 
than one twentieth of a percentage point above or below 0.85 percent (a 
midpoint rate chosen by the employer), the employer may treat the 
employees who have those rates as having an accrual rate of

[[Page 116]]

0.85 percent (provided that the accrual rates of HCEs within the range 
are not significantly higher than the accrual rates for NHCEs within the 
range). Because the last three rates are within a range of no more than 
five percent above or below 2.0 percent (a midpoint rate chosen by the 
employer), the employer may treat the employees who have those rates as 
having an accrual rate of 2.0 percent (provided that the accrual rates 
of HCEs within the range are not significantly higher than the accrual 
rates for NHCEs within the range).
    Example 2. Employer X maintains a plan under which headquarters 
employees accrue a benefit of 1.25 percent of average compensation for 
the first 10 years of service and 0.75 percent of average compensation 
for subsequent years of service, while all other employees accrue a 
benefit of one percent of compensation for all years of service. Assume 
that the group of headquarters employees does not satisfy section 
410(b). Under these facts, the pattern of accruals under the plan 
discriminates in favor of HCEs, and, therefore, under paragraph 
(d)(2)(iii)(A) of this section, the measurement period for determining 
accrual rates under the plan may not include future service.

    (e) Compensation rules--(1) In general. This paragraph (e) provides 
rules for determining average annual compensation. Safe harbor plans 
that satisfy paragraph (b) of this section must determine benefits 
either as a dollar amount unrelated to employees' compensation or as a 
percentage of each employee's average annual compensation. In contrast, 
plans that must satisfy the general test of paragraph (c) of this 
section are not required under this section to determine benefits under 
any particular definition of compensation or in any particular manner, 
but the accrual rates used in testing these plans must be expressed 
either as a dollar amount or determined as a percentage of each 
employee's average annual compensation.
    (2) Average annual compensation--(i) General rule. An employee's 
average annual compensation is the average of the employee's annual 
section 414(s) compensation determined over the averaging period in the 
employee's compensation history during which the average of the 
employee's annual section 414(s) compensation is the highest. For this 
purpose, an averaging period must consist of three or more consecutive 
12-month periods, but need not be longer than the employee's period of 
employment. An employee's compensation history may begin at any time, 
but must be continuous, be no shorter than the averaging period, and end 
in the current plan year.
    (ii) Certain permitted modifications to average annual 
compensation--(A) Use of plan year compensation. If the measurement 
period for determination of accrual rates is the current plan year, or 
the plan is an accumulation plan that satisfies paragraph (b) of this 
section, then plan year compensation may be substituted for average 
annual compensation.
    (B) Drop-out years. Any of the following types of 12-month periods 
in an employee's compensation history may be disregarded in determining 
the employee's average annual compensation (including for purposes of 
the requirement to average section 414(s) compensation over consecutive 
12-month periods), but only if the plan disregards the employee's 
compensation for those periods in determining benefits--
    (1) The 12-month period in which the employee terminates employment;
    (2) All 12-month periods in which the employee performs no services; 
or
    (3) All 12-month periods in which the employee performs services for 
less than a specified number of hours or specified period of time in the 
12-month period. The specified number of hours or specified period of 
time may be selected by the employer, but may not exceed three quarters 
of the time that an employee in the same job category working on a full-
time basis would perform services during that 12-month period.
    (C) Drop-out months within 12-month periods. If a plan determines an 
employee's average annual compensation using 12-month periods that do 
not end on a fixed date (e.g., average annual compensation as of a date 
is defined as the average of the employee's section 414(s) compensation 
for the 60 consecutive months within the compensation history in which 
the average is highest), then, for purposes of determining a 12-month 
period, any of the following type of months may be disregarded 
(including for purposes of the requirement to average section 414(s) 
compensation over consecutive 12-month periods), but

[[Page 117]]

only if the plan disregards the employee's compensation for those months 
in determining benefits--
    (1) The month in which the employee terminates employment;
    (2) All months in which the employee performs no services; or
    (3) All months in which the employee performs services for less than 
a specified number of hours or specified period of time in the month. 
The specified number of hours or specified period of time may be 
selected by the employer, but may not exceed three quarters of the time 
that an employee in the same job category working on a full-time basis 
would perform services during that month.
    (D) Employees working less than full-time. In the case of an 
employee who normally works less than full-time, the rules in paragraphs 
(e)(2)(ii)(B)(3) and (e)(2)(ii)(C)(3) of this section may be applied in 
relation to that employee's normal work schedule (instead of a full- 
time employee's work schedule) by prorating the specified number of 
hours or specified period of time, based on the employee's normal work 
schedule as a fraction of a full-time schedule.
    (E) Exception from consecutive-periods requirement for certain 
plans. The requirement that the periods taken into account under 
paragraph (e)(2)(i) of this section be consecutive does not apply in the 
case of a plan that is not a section 401(l) plan, provided that it does 
not take permitted disparity into account under Sec. 1.401(a)(4)-7. This 
paragraph (e)(2)(ii)(E) applies only if the plan does not take into 
account whether 12-month periods of compensation are consecutive in 
determining average compensation for purposes of calculating benefits.
    (iii) Consistency requirements. Average annual compensation must be 
determined in a consistent manner for all employees.
    (3) Examples. The following examples illustrate the rules in this 
paragraph (e):

    Example 1. Plan A is a defined benefit plan. Plan A determines 
benefits on the basis of the average of each employee's annual 
compensation for the five consecutive plan years (or the employee's 
period of employment, if shorter) during the employee's compensation 
history in which the average of the employee's annual compensation is 
the highest. The compensation history used for this purpose is the last 
10 plan years, plus the current plan year. In determining compensation 
for each plan year in the compensation history, Plan A defines 
compensation using a single definition that satisfies section 414(s) as 
a safe harbor definition under Sec. 1.414(s)-1(c). Plan A determines 
benefits on the basis of average annual compensation.
    Example 2. Plan B is a defined benefit plan. Plan B determines 
benefits on the basis of the average of each employee's compensation for 
the five consecutive 12-month periods (or the employee's period of 
employment, if shorter) during the employee's compensation history in 
which the average of the employee's annual compensation is the highest. 
The compensation history used for this purpose is the 10 consecutive 12-
month periods ending on the employee's termination date. In determining 
the average, Plan B disregards all months in which the employee performs 
services for less than 100 hours (60 percent of a full-time work 
schedule of 173 hours). In the case of an employee whose normal work 
schedule is less than a full-time schedule, Plan B disregards all months 
in which that employee performs services for less than 60 percent of the 
employee's normal work schedule. Plan B defines compensation for each 
12-month period using a single definition that satisfies Sec. 1.414(s)-
1. Plan B determines benefits on the basis of average annual 
compensation.
    Example 3. (a) The facts are the same as in Example 1, except that, 
for plan years prior to 1996, the compensation for a plan year was 
determined under a rate of pay definition of compensation that satisfies 
section 414(s), while, for plan years after 1995, the compensation for a 
plan year is determined using a definition that satisfies section 414(s) 
as a safe harbor definition under Sec. 1.414(s)-1(c).
    (b) The underlying definition of compensation for each plan year in 
the employee's compensation history is section 414(s) compensation, 
because for each plan year the definition satisfies the requirements for 
section 414(s) compensation under Sec. 1.401(a)(4)-12. Therefore, Plan A 
determines benefits on the basis of average annual compensation, even 
though the underlying definition used to measure the amount of 
compensation for each plan year in an employee's compensation history is 
not the same for all plan years.
    Example 4. The facts are the same as in Example 1, except that Plan 
A determines benefits on the basis of the average of the employee's 
annual section 414(s) compensation for the five consecutive 12-month 
periods ending on June 30 during the employee's compensation history in 
which the average is highest. An employee's compensation history begins 
when the employee commences

[[Page 118]]

participation in the plan and ends in the current plan year. In the case 
of an employee with less than five consecutive years of plan 
participation as of June 30, the compensation history is extended prior 
to the employee's commencement of participation to include the five 
consecutive 12-month periods ending on June 30 of the current plan year 
(or the employee's total period of employment, if shorter). Plan A 
determines benefits on the basis of average annual compensation.
    Example 5. The facts are the same as in Example 4, except that Plan 
A determines benefits on the basis of the average of each employee's 
compensation for the employee's entire compensation history. Plan A 
determines benefits on the basis of average annual compensation.

    (f) Special rules--(1) In general. The special rules in this 
paragraph (f) apply for purposes of applying the provisions of this 
section to a defined benefit plan. Any special rule provided in this 
paragraph (f) that is optional must, if used, apply uniformly to all 
employees.
    (2) Certain qualified disability benefits. In general, qualified 
disability benefits (within the meaning of section 411(a)(9)) are not 
taken into account under this section. However, a qualified disability 
benefit that results from the crediting of compensation or service for a 
period of disability in the same manner as actual compensation or 
service is credited under a plan's benefit formula is permitted to be 
taken into account under this section as an accrued benefit upon the 
employee's return to service with the employer following the period of 
disability, provided that the qualified disability benefit is then 
treated in the same manner as an accrued benefit for all purposes under 
the plan.
    (3) Accruals after normal retirement age--(i) General rule. An 
employee's accruals for any plan year after the plan year in which the 
employee attains normal retirement age are taken into account for 
purposes of this section. However, any plan provision that provides for 
increases in an employee's accrued benefit solely because the employee 
has delayed commencing benefits beyond the normal retirement age 
applicable to the employee under the plan may be disregarded, but only 
if--
    (A) The same uniform normal retirement age applies to all employees; 
and
    (B) The percentage factor used to increase the employee's accrued 
benefit is no greater than the largest percentage factor that could be 
applied to increase actuarially the employee's accrued benefit using any 
standard mortality table and any standard interest rate.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (f)(3). In each example, it is assumed that the plan satisfies 
the requirements of paragraph (f)(3)(i)(A) and (B) of this section.

    Example 1. Plan A provides a benefit of two percent of average 
annual compensation per year of service for all employees. In addition, 
Plan A provides an actuarial increase in an employee's accrued benefit 
of six percent for each year that an employee defers commencement of 
benefits beyond normal retirement age. For employees who continue in 
service beyond normal retirement age, the employee's two-percent accrual 
for the current plan year is offset by the six-percent actuarial 
increase, as permitted under section 411(b)(1)(H)(iii)(II). For purposes 
of this section, the actuarial increase (and hence the offset) may be 
disregarded, and thus all employees may be treated as if they were 
accruing at the rate of two percent of average annual compensation per 
year.
    Example 2. The facts are the same as in Example 1, except that the 
employee's two- percent accrual for the current plan year is not offset 
by the six-percent actuarial increase. The employer may disregard the 
actuarial increase and thus may treat all employees as if they were 
accruing at the rate of two percent of average annual compensation per 
year.

    (4) Early retirement window benefits--(i) General rule. In applying 
the requirements of this section, all early retirement benefits, 
retirement-type subsidies, QSUPPs, and other optional forms of benefit 
under a plan, and changes in the plan's benefit formula, are taken into 
account regardless of whether they are permanent features of the plan or 
are offered only to employees whose employment terminates within a 
limited period of time. Additional rules and examples relevant to the 
testing of early retirement window benefits are found in Example 6 of 
paragraph (b)(2)(vi) of this section; paragraph (b)(2)(ii)(A)(2), 
Example 2 of paragraph (c)(2), paragraph (d)(3), and Example 3 of 
paragraph (e)(1)(iii) of Sec. 1.401(a)(4)-4; paragraph (c)(4)(i) and 
Example 2 of paragraph (c)(6) of

[[Page 119]]

Sec. 1.401(a)(4)-9; and the definition of benefit formula in 
Sec. 1.401(a)(4)-12.
    (ii) Special rules--(A) Year in which early retirement window 
benefit taken into account. Notwithstanding paragraph (f)(4)(i) of this 
section, an early retirement window benefit is disregarded for purposes 
of determining whether a plan satisfies this section with respect to an 
employee for all plan years other than the first plan year in which the 
benefit is currently available (within the meaning of Sec. 1.401(a)(4)-
4(b)(2)) to the employee. For purposes of this paragraph (f)(4)(ii)(A), 
in determining which plan years the benefit is currently available, an 
early retirement window benefit that consists of a temporary change in 
the plan's benefit formula is treated as an optional form of benefit.
    (B) Treatment of early retirement window benefit that consists of 
temporary change in benefit formula. An early retirement window benefit 
is disregarded for purposes of determining an employee's normal accrual 
rate, even if the early retirement window benefit consists of a 
temporary change in a plan's benefit formula. However, if an early 
retirement window benefit consists of a temporary change in a plan's 
benefit formula, the plan does not satisfy paragraph (b) of this section 
during the period for which the change is effective unless the plan 
satisfies paragraph (b) of this section both reflecting the temporary 
change in the benefit formula and disregarding that change.
    (C) Effect of early retirement window benefit on most valuable 
accrual rate. In determining an employee's most valuable optional form 
of payment of the accrued benefit (which is used in determining the 
employee's most valuable accrual rate under paragraphs (d)(1)(ii) and 
(f)(4)(i) of this section), an early retirement window benefit that is 
currently available to the employee (within the meaning of paragraph 
(f)(4)(ii)(A) of this section) and that is not disregarded for a plan 
year under paragraph (f)(4)(ii)(A) of this section is taken into account 
in that plan year with respect to the employee's accrued benefit as of 
the earliest of the employee's date of termination, the close of the 
early retirement window, or the last day of that plan year.
    (D) Effect of early retirement window benefit on average benefit 
percentage test. Notwithstanding paragraph (c)(2) of this section, a 
rate group under a plan that provides an early retirement window benefit 
is deemed to satisfy the average benefit percentage test of 
Sec. 1.410(b)-5 if--
    (1) All rate groups under the plan would satisfy the ratio 
percentage test of Sec. 1.410(b)-2(b)(2) if the early retirement window 
benefit were disregarded; and
    (2) The group of employees to whom the early retirement window 
benefit is currently available (within the meaning of paragraph 
(f)(4)(ii)(A) of this section) satisfies section 410(b) without regard 
to the average benefit percentage test of Sec. 1.410(b)-5.
    (iii) Early retirement window benefit defined. For purposes of this 
paragraph (f)(4), an early retirement window benefit is an early 
retirement benefit, retirement-type subsidy, QSUPP, or other optional 
form of benefit under a plan that is available, or a change in the 
plan's benefit formula that is applicable, only to employees who 
terminate employment within a limited period specified by the plan (not 
to exceed one year) under circumstances specified by the plan. A benefit 
does not fail to be described in the preceding sentence merely because 
the plan contains provisions under which certain employees may receive 
the benefit even though, for bona fide business reasons, they terminate 
employment within a reasonable period after the end of the limited 
period. An amendment to an early retirement window benefit that merely 
extends the periods in the preceding sentences is not treated as a 
separate early retirement window benefit, provided that the periods, as 
extended, satisfy the preceding sentences. However, any other amendment 
to an early retirement window benefit creates a separate early 
retirement window benefit.
    (iv) Examples. The following examples illustrate the rules of this 
paragraph (f)(4):

    Example 1. (a) Plan A provides a benefit of one percent of average 
annual compensation per year of service and satisfies the requirements 
of paragraph (b)(2) of this section. Thus, the plan provides the same 
benefit to

[[Page 120]]

all employees with the same years of service under the Plan. Plan A is 
amended to treat all employees with ten or more years of service who 
terminate employment after attainment of age 55 and between March 1, 
1999, and January 31, 2000, as if they had an additional five years of 
service under the benefit formula. However, in order to ensure the 
orderly implementation of the early retirement window, the plan 
amendment provides that designated employees in the human resources 
department who would otherwise be eligible for the early retirement 
window benefit are eligible to be treated as having the additional five 
years of service only if they terminate between January 1, 2000, and 
April 30, 2000.
    (b) The additional benefits provided under this amendment are tested 
as benefits provided to employees rather than former employees. The 
effect of this amendment is temporarily to change the benefit formula 
for employees who are eligible for the early retirement window benefit 
because the amendment changes (albeit temporarily) the amount of the 
benefit payable to those employees at normal retirement age. See the 
definition of benefit formula in Sec. 1.401(a)(4)-12. Assume that the 
additional years of service credited to employees eligible for the 
window benefit do not represent past service (within the meaning of 
Sec. 1.401(a)(4)-11(d)(3)(i)(B)) or pre-participation or imputed service 
(within the meaning of Sec. 1.401(a)(4)-11(d)(3)(ii)(A) or (B), 
respectively) and thus may not be taken into account as years of 
service. See Sec. 1.401(a)(4)-11(d)(3)(i)(A) (regarding years of service 
that may not be taken into account under Sec. 1.401(a)(4)-1(b)(2)). 
Thus, the window-eligible employees are entitled to a larger benefit (as 
a percentage of average annual compensation) than other employees with 
the same number of years of service, and the plan does not satisfy the 
uniform normal retirement benefit requirement of paragraph (b)(2)(i) of 
this section.
    (c) Plan A is restructured under the provisions of Sec. 1.401(a)(4)-
9(c) into two component plans: Component Plan A1, consisting of all 
employees who are not eligible for the early retirement window benefit 
and all of their accruals and benefits, rights, and features under the 
plan, and Component Plan A2, consisting of all employees who are 
eligible for the early retirement window benefit (including the 
designated employees in the human resource department) and all of their 
accruals and benefits, rights, and features under the plan.
    (d) Component Plan A1 still satisfies paragraph (b) of this section, 
because there has been no change for the employees in that component 
plan. Similarly, Component Plan A2 satisfies paragraph (b) of this 
section disregarding the change in the benefit formula.
    (e) Because the early retirement window benefit consists of a 
temporary change in the benefit formula, paragraph (f)(4)(ii)(B) of this 
section requires that the plan satisfy the requirements of paragraph (b) 
of this section reflecting the change in order to remain a safe harbor 
plan. After reflecting the change, Component Plan A2 still provides the 
same benefit (albeit higher than under the regular benefit formula) to 
all employees with the same years of service that may be taken into 
account in testing the plan, and thus the benefit formula (as 
temporarily amended) satisfies the requirements of paragraphs (b)(2) (i) 
and (ii) of this section.
    (f) Since Component Plan A2 also satisfies all of the other 
requirements of paragraph (b)(2) of this section and the safe harbor of 
paragraph (b)(3) of this section reflecting the change in the benefit 
formula, Component Plan A2 satisfies this paragraph (b) both reflecting 
and disregarding the change in the benefit formula. Thus, Component Plan 
A2 satisfies paragraph (b) of this section.
    Example 2. The facts are the same as in Example 1, except that Plan 
A's benefit formula used the maximum amount of permitted disparity under 
section 401(l) prior to the amendment. The analysis is the same as in 
paragraphs (a) through the first sentence of paragraph (e) of Example 1. 
In order to satisfy the requirements of paragraph (b)(2) of this 
section, a plan that uses permitted disparity must satisfy the 
requirements of section 401(l) after reflecting the change in the 
benefit formula. Because, as stated in Example 1, the additional five 
years of service may not be taken into account for purposes of 
satisfying paragraph (b) of this section, the disparity that results 
from crediting that service exceeds the maximum permitted disparity 
under section 401(l). Thus, Component Plan A2 does not satisfy the 
requirements of paragraph (b) of this section.
    Example 3. The facts are the same as in Example 1, except that Plan 
A is tested under the general test in paragraph (c) of this section. The 
early retirement window benefit is disregarded for purposes of 
determining the normal accrual rates, but is taken into account in 1999 
for purposes of determining the most valuable accrual rates, of 
employees who were eligible for the early retirement window benefit 
(regardless of whether they elected to receive it). As stated in Example 
1, the additional five years of service do not represent past service, 
pre-participation service, or imputed service, and thus under 
Sec. 1.401(a)(4)-11(d)(3)(i)(A) may not be taken into account as testing 
service.

    (5) Unpredictable contingent event benefits--(i) General rule. In 
general, an unpredictable contingent event benefit (within the meaning 
of section 412(l)(7)(B)(ii)) is not taken into account under this 
section until the occurrence of the contingent event. Thus,

[[Page 121]]

the special rule in Sec. 1.401(a)(4)-4(d)(7) (treating the contingent 
event as having occurred) does not apply for purposes of this section. 
In the case of an unpredictable contingent event that is expected to 
result in the termination from employment of certain employees within a 
period of time consistent with the rules for defining an early 
retirement window benefit in paragraph (f)(4)(iii) of this section, the 
unpredictable contingent event benefit available to those employees is 
permitted to be treated as an early retirement window benefit, thus 
permitting the rules of paragraph (f)(4) of this section to be applied 
to it.
    (ii) Example. The following example illustrates the rules of this 
paragraph (f)(5):

    Example. (a) Employer X operates various manufacturing plants and 
maintains Plan A, a defined benefit plan that covers all of its 
nonexcludable employees. Plan A provides an early retirement benefit 
under which employees who retire after age 55 but before normal 
retirement age and who have at least 10 years of service receive a 
benefit equal to their normal retirement benefit reduced by four percent 
per year for each year prior to normal retirement age. Plan A also 
provides a plant-closing benefit under which employees who satisfy the 
conditions for receiving the early retirement benefit and who work at a 
plant where operations have ceased and whose employment has been 
terminated will receive an unreduced normal retirement benefit. The 
plant-closing benefit is an unpredictable contingent event benefit.
    (b) During the 1997 plan year, Employer X had no plant closings. 
Therefore, the plant-closing benefit is not taken into account for the 
1997 plan year in determining accrual rates or in applying the safe 
harbors in paragraph (b) of this section.
    (c) During the 1998 plan year, Employer X begins to close one plant. 
Employees M through Z, who are employees at the plant that is closing, 
are expected to terminate employment with Employer X during the plan 
year and will satisfy the conditions for the plant-closing benefit. 
Therefore, in testing Plan A under this section for the 1998 plan year, 
the availability of the plant-closing benefit to Employees M through Z 
must be taken into account in determining their accrual rates or in 
determining whether the plan satisfies one of the safe harbors under 
paragraph (b) of this section.
    (d) Because the employees eligible for the unpredictable contingent 
event benefit are expected to terminate employment with Employer X 
during a period consistent with the rules for defining an early 
retirement window benefit, in testing Plan A under this section for the 
1998 plan year, the special rules in paragraph (f)(4)(ii) of this 
section may be applied. Thus, for example, normal accrual rates may be 
determined without reference to the unpredictable contingent event 
benefit.
    (e) Despite the closing of the plant, Employee Q remains an employee 
into the 1999 plan year. Under paragraph (f)(4)(ii)(A) of this section, 
the availability of the plant-closing benefit to Employee Q may be 
disregarded in the 1999 plan year.

    (6) Determination of benefits on other than plan-year basis. For 
purposes of this section, accruals are generally determined based on the 
plan year. Nevertheless, an employer may determine accruals on the basis 
of any period ending within the plan year as long as the period is at 
least 12 months in duration. For example, accruals for all employees may 
be determined based on accrual computation periods ending within the 
plan year.
    (7) Adjustments for certain plan distributions. For purposes of this 
section, an employee's accrued benefit includes the actuarial equivalent 
of prior distributions of accrued benefits from the plan to the employee 
if the years of service taken into account in determining the accrued 
benefits that were distributed continue to be taken into account under 
the plan for purposes of determining the employee's current accrued 
benefit. For purposes of this paragraph (f)(7), actuarial equivalence 
must be determined in a uniform manner for all employees using 
reasonable actuarial assumptions. A standard interest rate and a 
standard mortality table are among the assumptions considered reasonable 
for this purpose. Thus, for example, if an employee has commenced 
receipt of benefits in accordance with the minimum distribution 
requirements of section 401(a)(9), and the plan reduces the employee's 
accrued benefit to take into account the amount of the distributions, 
the employee's accrued benefit for purposes of this section is restored 
to the value it would have had if the distributions had not occurred.
    (8) Adjustment for certain QPSA charges. For purposes of this 
section, an employee's accrued benefit includes the cost of a qualified 
preretirement survivor annuity (QPSA) that reduces

[[Page 122]]

the employee's accrued benefit otherwise determined under the plan, as 
permitted under Sec. 1.401(a)-20, Q&A-21. Thus, an employee's accrued 
benefit for purposes of this section is determined as if the cost of the 
QPSA had not been charged against the accrued benefit. This paragraph 
(f)(8) applies only if the QPSA charges apply uniformly to all 
employees.
    (9) Disregard of certain offsets--(i) General rule. For purposes of 
this section, an employee's accrued benefit under a plan includes that 
portion of the benefit that is offset under an offset provision 
described in Sec. 1.401(a)(4)-11(d)(3)(i)(D). The rule in the preceding 
sentence applies only to the extent that the benefit by which the 
benefit under the plan being tested is offset is attributable to periods 
for which the plan being tested credits pre-participation service 
(within the meaning of Sec. 1.401(a)(4)-11(d)(3)(ii)(A)) that satisfies 
Sec. 1.401(a)(4)-11(d)(3)(iii) or past service (within the meaning of 
Sec. 1.401(a)(4)-11(d)(3)(i)(B)), and only if--
    (A) The benefit under the plan being tested is offset by either--
    (1) Benefits under a qualified defined benefit plan or defined 
contribution plan (whether or not terminated); or
    (2) Benefits under a foreign plan that are reasonably expected to be 
paid; and,
    (B) If any portion of the benefit that is offset is nonforfeitable 
(within the meaning of section 411), that portion is offset by a benefit 
(or portion of a benefit) that is also nonforfeitable (or vested, in the 
case of a foreign plan).
    (ii) Examples. The following examples illustrate the rules in this 
paragraph (f)(9):

    Example 1. (a) Employer X maintains two qualified defined benefit 
plans, Plan A and Plan B. Plan B provides that, whenever an employee 
transfers to Plan B from Plan A, the service that was credited under 
Plan A is credited in determining benefits under Plan B. The Plan A 
service credited under Plan B is pre-participation service that 
satisfies Sec. 1.401(a)(4)-11(d)(3)(iii). Plan B offsets the benefits 
determined under Plan B by the employee's vested benefits under Plan A. 
Plan A does not credit additional benefit service or accrual service 
after employees transfer to Plan B.
    (b) The Plan B provision providing for an offset of benefits under 
Plan A satisfies Sec. 1.401(a)(4)-11(d)(3)(i)(D). This is because the 
provision applies to similarly-situated employees and the benefits under 
Plan A that are offset against the Plan B benefits are attributable to 
pre-participation service taken into account under Plan B.
    (c) This paragraph (f)(9) applies in determining the benefits that 
are taken into account under this section for employees in Plan B who 
are transferred from Plan A. This is because the offset provision is 
described in Sec. 1.401(a)(4)-11(d)(3)(i)(D), the benefits under the 
other plan by which the benefits under the plan being tested are offset 
are attributable solely to pre-participation service that satisfies 
Sec. 1.401(a)(4)-11(d)(3)(iii), and the benefits are offset solely by 
vested benefits under another qualified plan. Thus, for example, the 
accrual rates of employees in Plan B are determined as if there were no 
offset, i.e., by adding back the benefits that are offset to the net 
benefits under Plan B.
    (d) The result would be the same even if Plan A continued to 
recognize compensation paid after the transfer in the determination of 
benefits under Plan A. However, if Plan A continued to credit benefit or 
accrual service after the transfer, then, to the extent that Plan B's 
offset of benefits under Plan A increased as a result, the additional 
benefits offset under Plan B would not be added back in determining the 
benefits under Plan B that are taken into account under this section.
    Example 2. The facts are the same as in Example 1, except that Plan 
A is not a plan described in paragraph (f)(9)(i)(A) of this section. 
None of the benefits under Plan B that are offset by benefits under Plan 
A may be added back in determining the benefits under Plan B that are 
taken into account under this section. Thus, benefits under Plan B are 
tested on a net basis.

    (10) Special rule for multiemployer plans. For purposes of this 
section, if a multiemployer plan increases benefits for service prior to 
a specific date subject to a plan provision requiring employees to 
complete a specified amount of service (not to exceed five years) after 
that date, then benefits are permitted to be determined disregarding the 
service condition, provided that the condition is applicable to all 
employees in the multiemployer plan (including collectively bargained 
employees).

[T.D. 8485, 58 FR 46785, Sept. 3, 1993]



Sec. 1.401(a)(4)-4  Nondiscriminatory availability of benefits, rights, and features.

    (a) Introduction. This section provides rules for determining 
whether the benefits, rights, and features provided

[[Page 123]]

under a plan (i.e., all optional forms of benefit, ancillary benefits, 
and other rights and features available to any employee under the plan) 
are made available in a nondiscriminatory manner. Benefits, rights, and 
features provided under a plan are made available to employees in a 
nondiscriminatory manner only if each benefit, right, or feature 
satisfies the current availability requirement of paragraph (b) of this 
section and the effective availability requirement of paragraph (c) of 
this section. Paragraph (d) of this section provides special rules for 
applying these requirements. Paragraph (e) of this section defines 
optional form of benefit, ancillary benefit, and other right or feature.
    (b) Current availability--(1) General rule. The current availability 
requirement of this paragraph (b) is satisfied if the group of employees 
to whom a benefit, right, or feature is currently available during the 
plan year satisfies section 410(b) (without regard to the average 
benefit percentage test of Sec. 1.410(b)-5). In determining whether the 
group of employees satisfies section 410(b), an employee is treated as 
benefiting only if the benefit, right, or feature is currently available 
to the employee.
    (2) Determination of current availability--(i) General rule. Whether 
a benefit, right, or feature that is subject to specified eligibility 
conditions is currently available to an employee generally is determined 
based on the current facts and circumstances with respect to the 
employee (e.g., current compensation, accrued benefit, position, or net 
worth).
    (ii) Certain conditions disregarded--(A) Certain age and service 
conditions--(1) General rule. Notwithstanding paragraph (b)(2)(i) of 
this section, any specified age or service condition with respect to an 
optional form of benefit or a social security supplement is disregarded 
in determining whether the optional form of benefit or the social 
security supplement is currently available to an employee. Thus, for 
example, an optional form of benefit that is available to all employees 
who terminate employment on or after age 55 with at least 10 years of 
service is treated as currently available to an employee, without regard 
to the employee's current age or years of service, and without regard to 
whether the employee could potentially meet the age and service 
conditions prior to attaining the plan's normal retirement age.
    (2) Time-limited age or service conditions not disregarded. 
Notwithstanding paragraph (b)(2)(ii)(A)(1) of this section, an age or 
service condition is not disregarded in determining the current 
availability of an optional form of benefit or social security 
supplement if the condition must be satisfied within a limited period of 
time. However, in determining the current availability of an optional 
form of benefit or a social security supplement subject to such an age 
or service condition, the age and service of employees may be projected 
to the last date by which the age condition or service condition must be 
satisfied in order to be eligible for the optional form of benefit or 
social security supplement under the plan. Thus, for example, an 
optional form of benefit that is available only to employees who 
terminate employment between July 1, 1995, and December 31, 1995, after 
attainment of age 55 with at least 10 years of service is treated as 
currently available to an employee only if the employee could satisfy 
those age and service conditions by December 31, 1995.
    (B) Certain other conditions. Specified conditions on the 
availability of a benefit, right, or feature requiring a specified 
percentage of the employee's accrued benefit to be nonforfeitable, 
termination of employment, death, satisfaction of a specified health 
condition (or failure to meet such condition), disability, hardship, 
family status, default on a plan loan secured by a participant's account 
balance, execution of a covenant not to compete, application for 
benefits or similar ministerial or mechanical acts, election of a 
benefit form, execution of a waiver of rights under the Age 
Discrimination in Employment Act or other federal or state law, or 
absence from service, are disregarded in determining the employees to 
whom the benefit, right, or feature is currently available. In addition, 
if a multiemployer plan includes a reasonable condition that limits 
eligibility for an ancillary benefit, or other right

[[Page 124]]

or feature, to those employees who have recent service under the plan 
(e.g., a condition on a death benefit that requires an employee to have 
a minimum number of hours credited during the last two years) and the 
condition applies to all employees in the multiemployer plan (including 
the collectively bargained employees) to whom the ancillary benefit, or 
other right or feature, is otherwise currently available, then the 
condition is disregarded in determining the employees to whom the 
ancillary benefit, or other right or feature, is currently available.
    (C) Certain conditions relating to mandatory cash-outs. In the case 
of a plan that provides for mandatory cash-outs of all terminated 
employees who have a vested accrued benefit with an actuarial present 
value less than or equal to a specified dollar amount (not to exceed 
$3,500) as permitted by sections 411(a)(11) and 417(e), the implicit 
condition on any benefit, right, or feature (other than the mandatory 
cash-out) that requires the employee to have a vested accrued benefit 
with an actuarial present value in excess of the specified dollar amount 
is disregarded in determining the employees to whom the benefit, right, 
or feature is currently available.
    (D) Other dollar limits. A condition that the amount of an 
employee's vested accrued benefit or the actuarial present value of that 
benefit be less than or equal to a specified dollar amount is 
disregarded in determining the employees to whom the benefit, right, or 
feature is currently available.
    (E) Certain conditions on plan loans. In the case of an employee's 
right to a loan from the plan, the condition that an employee must have 
an account balance sufficient to be eligible to receive a minimum loan 
amount specified in the plan (not to exceed $1,000) is disregarded in 
determining the employees to whom the right is currently available.
    (3) Benefits, rights, and features that are eliminated 
prospectively--(i) Special testing rule. Notwithstanding paragraph 
(b)(1) of this section, a benefit, right, or feature that is eliminated 
with respect to benefits accrued after the later of the eliminating 
amendment's adoption or effective date (the elimination date), but is 
retained with respect to benefits accrued as of the elimination date, 
and that satisfies this paragraph (b) as of the elimination date, is 
treated as satisfying this paragraph (b) for all subsequent periods. 
This rule does not apply if the terms of the benefit, right, or feature 
(including the employees to whom it is available) are changed after the 
elimination date.
    (ii) Elimination of a benefit, right, or feature--(A) General rule. 
For purposes of this paragraph (b)(3), a benefit, right, or feature 
provided to an employee is eliminated with respect to benefits accrued 
after the elimination date if the amount or value of the benefit, right, 
or feature depends solely on the amount of the employee's accrued 
benefit (within the meaning of section 411(a)(7)) as of the elimination 
date, including subsequent income, expenses, gains, and losses with 
respect to that benefit in the case of a defined contribution plan.
    (B) Special rule for benefits, rights, and features that are not 
section 411(d)(6)-protected benefits. Notwithstanding paragraph 
(b)(3)(ii)(A) of this section, in the case of a benefit, right, or 
feature under a defined contribution plan that is not a section 
411(d)(6)-protected benefit (within the meaning of Sec. 1.411(d)-4, Q&A-
1), e.g., the availability of plan loans, for purposes of this paragraph 
(b)(3)(ii) each employee's accrued benefit as of the elimination date 
may be treated, on a uniform basis, as consisting exclusively of the 
dollar amount of the employee's account balance as of the elimination 
date.
    (C) Special rule for benefits, rights, and features that depend on 
adjusted accrued benefits. For purposes of this paragraph (b)(3), a 
benefit, right, or feature provided to an employee under a plan that has 
made a fresh start does not fail to be eliminated as of an elimination 
date that is the fresh-start date merely because it depends solely on 
the amount of the employee's adjusted accrued benefit (within the 
meaning of Sec. 1.401(a)(4)-13(d)(8)).
    (c) Effective availability--(1) General rule. Based on all of the 
relevant facts and circumstances, the group of employees to whom a 
benefit, right, or feature is effectively available must not 
substantially favor HCEs.

[[Page 125]]

    (2) Examples. The following examples illustrate the rules of this 
paragraph (c):

    Example 1. Employer X maintains Plan A, a defined benefit plan that 
covers both of its highly compensated nonexcludable employees and nine 
of its 12 nonhighly compensated nonexcludable employees. Plan A provides 
for a normal retirement benefit payable as an annuity and based on a 
normal retirement age of 65, and an early retirement benefit payable 
upon termination in the form of an annuity to employees who terminate 
from service with the employer on or after age 55 with 30 or more years 
of service. Both HCEs of Employer X currently meet the age and service 
requirement, or will have 30 years of service by the time they reach age 
55. All but two of the nine NHCEs of Employer X who are covered by Plan 
A were hired on or after age 35 and, thus, cannot qualify for the early 
retirement benefit. Even though the group of employees to whom the early 
retirement benefit is currently available satisfies the ratio percentage 
test of Sec. 1.410(b)-2(b)(2) when age and service are disregarded 
pursuant to paragraph (b)(2)(ii)(A) of this section, absent other facts, 
the group of employees to whom the early retirement benefit is 
effectively available substantially favors HCEs.
    Example 2. Employer Y maintains Plan B, a defined benefit plan that 
provides for a normal retirement benefit payable as an annuity and based 
on a normal retirement age of 65. By a plan amendment first adopted and 
effective December 1, 1998, Employer Y amends Plan B to provide an early 
retirement benefit that is available only to employees who terminate 
employment by December 15, 1998, and who are at least age 55 with 30 or 
more years of service. Assume that all employees were hired prior to 
attaining age 25 and that the group of employees who have, or will have, 
attained age 55 with 30 years of service by December 15, 1998, satisfies 
the ratio percentage test of Sec. 1.410(b)-2(b)(2). Assume, further, 
that the employer takes no steps to inform all eligible employees of the 
early retirement option on a timely basis and that the only employees 
who terminate from employment with the employer during the two-week 
period in which the early retirement benefit is available are HCEs. 
Under these facts, the group of employees to whom this early retirement 
window benefit is effectively available substantially favors HCEs.
    Example 3. Employer Z amends Plan C on June 30, 1999, to provide for 
a single sum optional form of benefit for employees who terminate from 
employment with Employer Z after June 30, 1999, and before January 1, 
2000. The availability of this single sum optional form of benefit is 
conditioned on the employee's having a particular disability at the time 
of termination of employment. The only employee of the employer who 
meets this disability requirement at the time of the amendment and 
thereafter through December 31, 1999, is a HCE. Under paragraph 
(b)(2)(ii)(B) of this section, the disability condition is disregarded 
in determining the current availability of the single sum optional form 
of benefit. Nevertheless, under these facts, the group of employees to 
whom the single sum optional form of benefit is effectively available 
substantially favors HCEs.

    (d) Special rules--(1) Mergers and acquisitions--(i) Special testing 
rule. A benefit, right, or feature available under a plan solely to an 
acquired group of employees is treated as satisfying paragraphs (b) and 
(c) of this section during the period that each of the following 
requirements is satisfied:
    (A) The benefit, right, or feature must satisfy paragraphs (b) and 
(c) of this section (determined without regard to the special rule in 
section 410(b)(6)(C)) on the date that is selected by the employer as 
the latest date by which an employee must be hired or transferred into 
the acquired trade or business for an employee to be included in the 
acquired group of employees. This determination is made with reference 
to the plan of the current employer and its nonexcludable employees.
    (B) The benefit, right, or feature must be available under the plan 
of the current employer after the transaction on the same terms as it 
was available under the plan of the prior employer before the 
transaction. This requirement is not violated merely because of a change 
made to the benefit, right, or feature that is permitted by section 
411(d)(6), provided that--
    (1) The change is a replacement of the benefit, right, or feature 
with another benefit, right, or feature that is available to the same 
employees as the original benefit, right, or feature, and the original 
benefit, right, or feature is of inherently equal or greater value 
(within the meaning of paragraph (d)(4)(i)(A) of this section) than the 
benefit, right, or feature that replaces it; or
    (2) The change is made before January 12, 1993.
    (ii) Scope of special testing rule. This paragraph (d)(1) applies 
only to benefits, rights, and features with respect

[[Page 126]]

to benefits accruing under the plan of the current employer, and not to 
benefits, rights, and features with respect to benefits accrued under 
the plan of the prior employer (unless, pursuant to the transaction, the 
plan of the prior employer becomes the plan of the current employer, or 
the assets and liabilities with respect to the acquired group of 
employees under the plan of the prior employer are transferred to the 
plan of the current employer in a plan merger, consolidation, or other 
transfer described in section 414(l)).
    (iii) Example. The following example illustrates the rules of this 
paragraph (d)(1):

    Example. Employer X maintains Plan A, a defined benefit plan with a 
single sum optional form of benefit for all employees. Employer Y 
acquires Employer X and merges Plan A into Plan B, a defined benefit 
plan maintained by Employer Y that does not otherwise provide a single 
sum optional form of benefit. Employer Y continues to provide the single 
sum optional form of benefit under Plan B on the same terms as it was 
offered under Plan A to all employees who were acquired in the 
transaction with Employer X (and to no other employees). The optional 
form of benefit satisfies paragraphs (b) and (c) of this section 
immediately following the transaction (determined without taking into 
account section 410(b)(6)(C)) when tested with reference to Plan B and 
Employer Y's nonexcludable employees. Under these facts, Plan B is 
treated as satisfying this section with respect to the single sum 
optional form of benefit for the plan year of the transaction and all 
subsequent plan years.

    (2) Frozen participants. A plan must satisfy the nondiscriminatory 
availability requirement of this section not only with respect to 
benefits, rights, and features provided to employees who are currently 
benefiting under the plan, but also separately with respect to benefits, 
rights, and features provided to nonexcludable employees with accrued 
benefits who are not currently benefiting under the plan (frozen 
participants). Thus, each benefit, right, and feature available to any 
frozen participant under the plan is separately subject to the 
requirements of this section. A plan satisfies paragraphs (b) and (c) of 
this section with respect to a benefit, right, or feature available to 
any frozen participant under the plan only if one or more of the 
following requirements is satisfied:
    (i) The benefit, right, or feature must be one that would satisfy 
paragraphs (b) and (c) of this section if it were not available to any 
employee currently benefiting under the plan.
    (ii) The benefit, right, or feature must be one that would satisfy 
paragraphs (b) and (c) of this section if all frozen participants were 
treated as employees currently benefiting under the plan.
    (iii) No change in the availability of the benefit, right, or 
feature may have been made that is first effective in the current plan 
year with respect to a frozen participant.
    (iv) Any change in the availability of the benefit, right, or 
feature that is first effective in the current plan year with respect to 
a frozen participant must be made in a nondiscriminatory manner. Thus, 
any expansion in the availability of the benefit, right, or feature to 
any highly compensated frozen participant must be applied on a 
consistent basis to all nonhighly compensated frozen participants. 
Similarly, any contraction in the availability of the benefit, right, or 
feature that affects any nonhighly compensated frozen participant must 
be applied on a consistent basis to all highly compensated frozen 
participants.
    (3) Early retirement window benefits. If a benefit, right, or 
feature meets the definition of an early retirement window benefit in 
Sec. 1.401(a)(4)-3(f)(4)(iii) (or would meet that definition if the 
definition applied to all benefits, rights, and features), the benefit, 
right, or feature is disregarded for purposes of applying this section 
with respect to an employee for all plan years other than the first plan 
year in which the benefit is currently available to the employee.
    (4) Permissive aggregation of certain benefits, rights, or 
features--(i) General rule. An optional form of benefit, ancillary 
benefit, or other right or feature may be aggregated with another 
optional form of benefit, ancillary benefit, or other right or feature, 
respectively, and the two may be treated as a single optional form of 
benefit, ancillary benefit, or other right or feature, if both of the 
following requirements are satisfied:
    (A) One of the two optional forms of benefit, ancillary benefit, or 
other

[[Page 127]]

rights or features must in all cases be of inherently equal or greater 
value than the other. For this purpose, one benefit, right, or feature 
is of inherently equal or greater value than another benefit, right, or 
feature only if, at any time and under any conditions, it is impossible 
for any employee to receive a smaller amount or a less valuable right 
under the first benefit, right, or feature than under the second 
benefit, right, or feature.
    (B) The optional form of benefit, ancillary benefit, or other right 
or feature of inherently equal or greater value must separately satisfy 
paragraphs (b) and (c) of this section (without regard to this paragraph 
(d)(4)).
    (ii) Aggregation may be applied more than once. The aggregation rule 
in this paragraph (d)(4) may be applied more than once. Thus, for 
example, an optional form of benefit may be aggregated with another 
optional form of benefit that itself constitutes two separate optional 
forms of benefit that are aggregated and treated as a single optional 
form of benefit under this paragraph (d)(4).
    (iii) Examples. The following examples illustrate the rules in this 
paragraph (d)(4):

    Example 1. Plan A is a defined benefit plan that provides a single 
sum optional form of benefit to all employees. The single sum optional 
form of benefit is available on the same terms to all employees, except 
that, for employees in Division S, a five-percent discount factor is 
applied and, for employees of Division T, a seven-percent discount 
factor is applied. Under paragraph (e)(1) of this section, the single 
sum optional form of benefit constitutes two separate optional forms of 
benefit. Assume that the single sum optional form of benefit available 
to employees of Division S separately satisfies paragraphs (b) and (c) 
of this section without taking into account this paragraph (d)(4). 
Because a lower discount factor is applied in determining the single sum 
optional form of benefit available to employees of Division S than is 
applied in determining the single sum optional form of benefit available 
to employees of Division T, the first single sum optional form of 
benefit is of inherently greater value than the second single sum 
optional form of benefit. Under these facts, these two single sum 
optional forms of benefit may be aggregated and treated as a single 
optional form of benefit for purposes of this section.
    Example 2. The facts are the same as in Example 1, except that, in 
order to receive the single sum optional form of benefit, employees of 
Division S (but not employees of Division T) must have completed at 
least 20 years of service. The single sum optional form of benefit 
available to employees of Division S is not of inherently equal or 
greater value than the single sum optional form of benefit available to 
employees of Division T, because an employee of Division S who 
terminates employment with less than 20 years of service would receive a 
smaller single sum amount (i.e., zero) than a similarly-situated 
employee of Division T who terminates employment with less than 20 years 
of service. Under these facts, the two single sum optional forms of 
benefit may not be aggregated and treated as a single optional form of 
benefit for purposes of this section.

    (5) Certain spousal benefits. In the case of a plan that includes 
two or more plans that have been permissively aggregated under 
Sec. 1.410(b)-7(d), the aggregated plan satisfies this section with 
respect to the availability of any nonsubsidized qualified joint and 
survivor annuities, qualified preretirement survivor annuities, or 
spousal death benefits described in section 401(a)(11), if each plan 
that is part of the aggregated plan satisfies section 401(a)(11). 
Whether a benefit is considered subsidized for this purpose may be 
determined using any reasonable actuarial assumptions. For purposes of 
this paragraph (d)(5), a qualified joint and survivor annuity, qualified 
preretirement survivor annuity, or spousal death benefit is deemed to be 
nonsubsidized if it is provided under a defined contribution plan.
    (6) Special ESOP rules. An ESOP does not fail to satisfy paragraphs 
(b) and (c) of this section merely because it makes an investment 
diversification right or feature or a distribution option available 
solely to all qualified participants (within the meaning of section 
401(a)(28)(B)(iii)), or merely because the restrictions of section 
409(n) apply to certain individuals.
    (7) Special testing rule for unpredictable contingent event 
benefits. A benefit, right, or feature that is contingent on the 
occurrence of an unpredictable contingent event (within the meaning of 
section 412(l)(7)(B)(ii)) is tested under this section as if the event 
had occurred. Thus, the current availability of a benefit that becomes 
an optional form of benefit upon the occurrence of an unpredictable 
contingent event is

[[Page 128]]

tested by deeming the event to have occurred and by disregarding age and 
service conditions on the eligibility for that benefit to the extent 
permitted for optional forms of benefit under paragraph (b)(2) of this 
section.
    (e) Definitions--(1) Optional form of benefit--(i) General rule. The 
term optional form of benefit means a distribution alternative 
(including the normal form of benefit) that is available under a plan 
with respect to benefits described in section 411(d)(6)(A) or a 
distribution alternative that is an early retirement benefit or 
retirement-type subsidy described in section 411(d)(6)(B)(i), including 
a QSUPP. Except as provided in paragraph (e)(1)(ii) of this section, 
different optional forms of benefit exist if a distribution alternative 
is not payable on substantially the same terms as another distribution 
alternative. The relevant terms include all terms affecting the value of 
the optional form, such as the method of benefit calculation and the 
actuarial assumptions used to determine the amount distributed. Thus, 
for example, different optional forms of benefit may result from 
differences in terms relating to the payment schedule, timing, 
commencement, medium of distribution (e.g., in cash or in kind), 
election rights, differences in eligibility requirements, or the portion 
of the benefit to which the distribution alternative applies.
    (ii) Exceptions--(A) Differences in benefit formula or accrual 
method. A distribution alternative available under a defined benefit 
plan does not fail to be a single optional form of benefit merely 
because the benefit formulas, accrual methods, or other factors 
(including service-computation methods and definitions of compensation) 
underlying, or the manner in which employees vest in, the accrued 
benefit that is paid in the form of the distribution alternative are 
different for different employees to whom the distribution alternative 
is available. Notwithstanding the foregoing, differences in the normal 
retirement ages of employees or in the form in which the accrued benefit 
of employees is payable at normal retirement age under a plan are taken 
into account in determining whether a distribution alternative 
constitutes one or more optional forms of benefit.
    (B) Differences in allocation formula. A distribution alternative 
available under a defined contribution plan does not fail to be a single 
optional form of benefit merely because the allocation formula or other 
factors (including service-computation methods, definitions of 
compensation, and the manner in which amounts described in 
Sec. 1.401(a)(4)-2(c)(2)(iii) are allocated) underlying, or the manner 
in which employees vest in, the accrued benefit that is paid in the form 
of the distribution alternative are different for different employees to 
whom the distribution alternative is available.
    (C) Distributions subject to section 417(e). A distribution 
alternative available under a defined benefit plan does not fail to be a 
single optional form of benefit merely because, in determining the 
amount of a distribution, the plan applies a lower interest rate to 
determine the distribution for employees with a vested accrued benefit 
having an actuarial present value not in excess of $25,000, as required 
by section 417(e)(3) and Sec. 1.417(e)-1.
    (D) Differences attributable to uniform normal retirement age. A 
distribution alternative available under a defined benefit plan does not 
fail to be a single optional form of benefit, to the extent that the 
differences are attributable to differences in normal retirement dates 
among employees, provided that the differences do not prevent the 
employees from having the same uniform normal retirement age under the 
definition of uniform normal retirement age in Sec. 1.401(a)(4)-12.
    (iii) Examples. The following examples illustrate the rules in this 
paragraph (e)(1):

    Example 1. Plan A is a defined benefit plan that benefits all 
employees of Divisions S and T. The plan offers a qualified joint and 
50-percent survivor annuity at normal retirement age, calculated by 
multiplying an employee's single life annuity payment by a factor. For 
an employee of Division S whose benefit commences at age 65, the plan 
provides a factor of 0.90, but for a similarly-situated employee of 
Division T the plan provides a factor of 0.85. The qualified joint and 
survivor annuity is not available to employees of Divisions S and T on 
substantially the

[[Page 129]]

same terms, and thus it constitutes two separate optional forms of 
benefit.
    Example 2. Plan B is a defined benefit plan that benefits all 
employees of Divisions U and V. The plan offers a single sum 
distribution alternative available on the same terms and determined 
using the same actuarial assumptions, to all employees. However, 
different benefit formulas apply to employees of each division. Under 
the exception provided in paragraph (e)(1)(ii)(A) of this section, the 
single sum optional form of benefit available to employees of Division U 
is not a separate optional form of benefit from the single sum optional 
form of benefit available to employees of Division V.
    Example 3. Defined benefit Plan C provides an early retirement 
benefit based on a schedule of early retirement factors that is a single 
optional form of benefit. Plan C is amended to provide an early 
retirement window benefit that consists of a temporary change in the 
plan's benefit formula (e.g., the addition of five years of service to 
an employee's actual service under the benefit formula) applicable in 
determining the benefits for certain employees who terminate employment 
within a limited period of time. Under the exception provided in 
paragraph (e)(1)(ii)(A) of this section, the early retirement optional 
form of benefit available to window-eligible employees is not a separate 
optional form of benefit from the early retirement optional form of 
benefit available to the other employees.

    (2) Ancillary benefit. The term ancillary benefit means social 
security supplements (other than QSUPPs), disability benefits not in 
excess of a qualified disability benefit described in section 411(a)(9), 
ancillary life insurance and health insurance benefits, death benefits 
under a defined contribution plan, preretirement death benefits under a 
defined benefit plan, shut-down benefits not protected under section 
411(d)(6), and other similar benefits. Different ancillary benefits 
exist if an ancillary benefit is not available on substantially the same 
terms as another ancillary benefit. Principles similar to those in 
paragraph (e)(1)(ii) of this section apply in making this determination.
    (3) Other right or feature--(i) General rule. The term other right 
or feature generally means any right or feature applicable to employees 
under the plan. Different rights or features exist if a right or feature 
is not available on substantially the same terms as another right or 
feature.
    (ii) Exceptions to definition of other right or feature. 
Notwithstanding paragraph (e)(3)(i) of this section, a right or feature 
is not considered an other right or feature if it--
    (A) Is an optional form of benefit or an ancillary benefit under the 
plan;
    (B) Is one of the terms that are taken into account in determining 
whether separate optional forms of benefit or ancillary benefits exist, 
or that would be taken into account but for paragraph (e)(1)(ii) of this 
section (e.g., benefit formulas or the manner in which benefits vest); 
or
    (C) Cannot reasonably be expected to be of meaningful value to an 
employee (e.g., administrative details).
    (iii) Examples. Other rights and features include, but are not 
limited to--
    (A) Plan loan provisions (other than those relating to a 
distribution of an employee's accrued benefit upon default under a 
loan);
    (B) The right to direct investments;
    (C) The right to a particular form of investment, including, for 
example, a particular class or type of employer securities (taking into 
account, in determining whether different forms of investment exist, any 
differences in conversion, dividend, voting, liquidation preference, or 
other rights conferred under the security);
    (D) The right to make each rate of elective contributions described 
in Sec. 1.401(k)-1(g)(3) (determining the rate based on the plan's 
definition of the compensation out of which the elective contributions 
are made (regardless of whether that definition satisfies section 
414(s)), but also treating different rates as existing if they are based 
on definitions of compensation or other requirements or formulas that 
are not substantially the same);
    (E) The right to make after-tax employee contributions to a defined 
benefit plan that are not allocated to separate accounts;
    (F) The right to make each rate of after-tax employee contributions 
described in Sec. 1.401(m)-1(f)(6) (determining the rate based on the 
plan's definition of the compensation out of which the after-tax 
employee contributions are made (regardless of whether that definition 
satisfies section 414(s)), but also treating different rates as existing 
if

[[Page 130]]

they are based on definitions of compensation or other requirements or 
formulas that are not substantially the same);
    (G) The right to each rate of allocation of matching contributions 
described in Sec. 1.401(m)-1(f)(12) (determining the rate using the 
amount of matching, elective, and after-tax employee contributions 
determined after any corrections under Secs. 1.401(k)-1(f)(1)(i), 
1.401(m)-1(e)(1)(i), and 1.401(m)-2(c), but also treating different 
rates as existing if they are based on definitions of compensation or 
other requirements or formulas that are not substantially the same);
    (H) The right to purchase additional retirement or ancillary 
benefits under the plan; and
    (I) The right to make rollover contributions and transfers to and 
from the plan.

[T.D. 8485, 58 FR 46796, Sept. 3, 1993]



Sec. 1.401(a)(4)-5  Plan amendments and plan terminations.

    (a) Introduction--(1) Overview. This paragraph (a) provides rules 
for determining whether the timing of a plan amendment or series of 
amendments has the effect of discriminating significantly in favor of 
HCEs or former HCEs. For purposes of this section, a plan amendment 
includes, for example, the establishment or termination of the plan, and 
any change in the benefits, rights, or features, benefit formulas, or 
allocation formulas under the plan. Paragraph (b) of this section sets 
forth additional requirements that must be satisfied in the case of a 
plan termination.
    (2) Facts-and-circumstances determination. Whether the timing of a 
plan amendment or series of plan amendments has the effect of 
discriminating significantly in favor of HCEs or former HCEs is 
determined at the time the plan amendment first becomes effective for 
purposes of section 401(a), based on all of the relevant facts and 
circumstances. These include, for example, the relative numbers of 
current and former HCEs and NHCEs affected by the plan amendment, the 
relative length of service of current and former HCEs and NHCEs, the 
length of time the plan or plan provision being amended has been in 
effect, and the turnover of employees prior to the plan amendment. In 
addition, the relevant facts and circumstances include the relative 
accrued benefits of current and former HCEs and NHCEs before and after 
the plan amendment and any additional benefits provided to current and 
former HCEs and NHCEs under other plans (including plans of other 
employers, if relevant). In the case of a plan amendment that provides 
additional benefits based on an employee's service prior to the 
amendment, the relevant facts and circumstances also include the 
benefits that employees and former employees who do not benefit under 
the amendment would have received had the plan, as amended, been in 
effect throughout the period on which the additional benefits are based.
    (3) Safe harbor for certain grants of benefits for past periods. The 
timing of a plan amendment that credits (or increases benefits 
attributable to) years of service for a period in the past is deemed not 
to have the effect of discriminating significantly in favor of HCEs or 
former HCEs if the period for which the service credit (or benefit 
increase) is granted does not exceed the five years immediately 
preceding the year in which the amendment first becomes effective, the 
service credit (or benefit increase) is granted on a reasonably uniform 
basis to all employees, benefits attributable to the period are 
determined by applying the current plan formula, and the service 
credited is service (including pre-participation or imputed service) 
with the employer or a previous employer that may be taken into account 
under Sec. 1.401(a)(4)-11(d)(3) (without regard to Sec. 1.401(a)(4)-
11(d)(3)(i)(B)). However, this safe harbor is not available if the plan 
amendment granting the service credit (or increasing benefits) is part 
of a pattern of amendments that has the effect of discriminating 
significantly in favor of HCEs or former HCEs.
    (4) Examples. The following examples illustrate the rules in this 
paragraph (a):

    Example 1. Plan A is a defined benefit plan that covered both HCEs 
and NHCEs for most of its existence. The employer decides to

[[Page 131]]

wind up its business. In the process of ceasing operations, but at a 
time when the plan covers only HCEs, Plan A is amended to increase 
benefits and thereafter is terminated. The timing of this plan amendment 
has the effect of discriminating significantly in favor of HCEs.
    Example 2. Plan B is a defined benefit plan that provides a social 
security supplement that is not a QSUPP. After substantially all of the 
HCEs of the employer have benefited from the supplement, but before a 
substantial number of NHCEs have become eligible for the supplement, 
Plan B is amended to reduce significantly the amount of the supplement. 
The timing of this plan amendment has the effect of discriminating 
significantly in favor of HCEs.
    Example 3. Plan C is a defined benefit plan that contains an 
ancillary life insurance benefit available to all employees. The plan is 
amended to eliminate this benefit at a time when life insurance payments 
have been made only to beneficiaries of HCEs. Because all employees 
received the benefit of life insurance coverage before Plan C was 
amended, the timing of this plan amendment does not have the effect of 
discriminating significantly in favor of HCEs or former HCEs.
    Example 4. Plan D provides for a benefit of one percent of average 
annual compensation per year of service. Ten years after Plan D is 
adopted, it is amended to provide a benefit of two percent of average 
annual compensation per year of service, including years of service 
prior to the amendment. The amendment is effective only for employees 
currently employed at the time of the amendment. The ratio of HCEs to 
former HCEs is significantly higher than the ratio of NHCEs to former 
NHCEs. In the absence of any additional factors, the timing of this plan 
amendment has the effect of discriminating significantly in favor of 
HCEs.
    Example 5. The facts are the same as in Example 4, except that, in 
addition, the years of prior service are equivalent between HCEs and 
NHCEs who are current employees, and the group of current employees with 
prior service would satisfy the nondiscriminatory classification test of 
Sec. 1.410(b)-4 in the current and all prior plan years for which past 
service credit is granted. The timing of this plan amendment does not 
have the effect of discriminating significantly in favor of HCEs or 
former HCEs.
    Example 6. Employer V maintains Plan E, an accumulation plan. In 
1994, Employer V amends Plan E to provide that the compensation used to 
determine an employee's benefit for all preceding plan years shall not 
be less than the employee's average annual compensation as of the close 
of the 1994 plan year. The years of service and percentage increases in 
compensation for HCEs are reasonably comparable to those of NHCEs. In 
addition, the ratio of HCEs to former HCEs is reasonably comparable to 
the ratio of NHCEs to former NHCEs. The timing of this plan amendment 
does not have the effect of discriminating significantly in favor of 
HCEs or former HCEs.
    Example 7. Employer W currently has six nonexcludable employees, two 
of whom, H1 and H2, are HCEs, and the remaining four of whom, N1 through 
N4, are NHCEs. The ratio of HCEs to former HCEs is significantly higher 
than the ratio of NHCEs to former NHCEs. Employer W establishes Plan F, 
a defined benefit plan providing a benefit of one percent of average 
annual compensation per year of service, including years of service 
prior to the establishment of the plan. H1 and H2 each have 15 years of 
prior service, N1 has nine years of past service, N2 has five years, N3 
has three years, and N4 has one year. The timing of this plan 
establishment has the effect of discriminating significantly in favor of 
HCEs.
    Example 8. Assume the same facts as in Example 7, except that N1 
through N4 were hired in the current year, and Employer W never employed 
any NHCEs prior to the current year. Thus, no NHCEs would have received 
additional benefits had Plan F been in existence during the preceding 15 
years. The timing of this plan establishment does not have the effect of 
discriminating significantly in favor of HCEs or former HCEs.
    Example 9. The facts are the same as in Example 7, except that Plan 
F limits the grant of past service credit to five years, and the grant 
of past service otherwise satisfies the safe harbor in paragraph (a)(3) 
of this section. The timing of this plan establishment is deemed not to 
have the effect of discriminating significantly in favor of HCEs or 
former HCEs.
    Example 10. The facts are the same as in Example 9, except that, 
five years after the establishment of Plan F, Employer W amends the plan 
to provide a benefit equal to two percent of average annual compensation 
per year of service, taking into account all years of service since the 
establishment of the plan. The ratio of HCEs to former HCEs who 
terminated employment during the five-year period since the 
establishment of the plan is significantly higher than the ratio of 
NHCEs to former NHCEs who terminated employment during the five-year 
period since the establishment of the plan. Although the amendment 
described in this example might separately satisfy the safe harbor in 
paragraph (a)(3) of this section, the safe harbor is not available with 
respect to the amendment because, under these facts, the amendment is 
part of a pattern of amendments that has the effect of discriminating 
significantly in favor of HCEs.

[[Page 132]]

    Example 11. Employer Y maintains Plan G, a defined benefit plan, 
covering all its employees. In 1995, Employer Y acquires Division S from 
Employer Z. Some of the employees of Division S had been covered under a 
defined benefit plan maintained by Employer Z. Soon after the 
acquisition, Employer Y amends Plan G to cover all employees of Division 
S and to credit those who were in Division S's defined benefit plan with 
years of service for years of employment with Employer Z. Because the 
timing of the plan amendment was determined by the timing of the 
transaction, the timing of this plan amendment does not have the effect 
of discriminating significantly in favor of HCEs or former HCEs. See 
also Sec. 1.401(a)(4)-11(d)(3) for other rules regarding the crediting 
of pre-participation service.
    Example 12. Plan H is an insurance contract plan within the meaning 
of section 412(i). For all plan years before 1999, Plan H purchases 
insurance contracts from Insurance Company J. In 1999, Plan H shifts 
future purchases of insurance contracts to Insurance Company K. The 
shift in insurance companies is a plan amendment subject to this 
paragraph (a).

    (b) Pre-termination restrictions--(1) Required provisions in defined 
benefit plans. A defined benefit plan has the effect of discriminating 
significantly in favor of HCEs or former HCEs unless it incorporates 
provisions restricting benefits and distributions as described in 
paragraph (b)(2) and (3) of this section at the time the plan is 
established or, if later, as of the first plan year to which 
Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13 apply to the plan under 
Sec. 1.401(a)(4)-13(a) or (b). This paragraph (b) does not apply if the 
Commissioner determines that such provisions are not necessary to 
prevent the prohibited discrimination that may occur in the event of an 
early termination of the plan. The restrictions in this paragraph (b) 
apply to a plan within the meaning of Sec. 1.410(b)-7(b) (i.e., a 
section 414(l) plan). Any plan containing a provision described in this 
paragraph (b) satisfies section 411(d)(2) and does not fail to satisfy 
section 411(a) or (d)(3) merely because of the provision.
    (2) Restriction of benefits upon plan termination. A plan must 
provide that, in the event of plan termination, the benefit of any HCE 
(and any former HCE) is limited to a benefit that is nondiscriminatory 
under section 401(a)(4).
    (3) Restrictions on distributions--(i) General rule. A plan must 
provide that, in any year, the payment of benefits to or on behalf of a 
restricted employee shall not exceed an amount equal to the payments 
that would be made to or on behalf of the restricted employee in that 
year under--
    (A) A straight life annuity that is the actuarial equivalent of the 
accrued benefit and other benefits to which the restricted employee is 
entitled under the plan (other than a social security supplement); and
    (B) A social security supplement, if any, that the restricted 
employee is entitled to receive.
    (ii) Restricted employee defined. For purposes of this paragraph 
(b), the term restricted employee generally means any HCE or former HCE. 
However, an HCE or former HCE need not be treated as a restricted 
employee in the current year if the HCE or former HCE is not one of the 
25 (or a larger number chosen by the employer) nonexcludable employees 
and former employees of the employer with the largest amount of 
compensation in the current or any prior year. Plan provisions defining 
or altering this group can be amended at any time without violating 
section 411(d)(6).
    (iii) Benefit defined. For purposes of this paragraph (b), the term 
benefit includes, among other benefits, loans in excess of the amounts 
set forth in section 72(p)(2)(A), any periodic income, any withdrawal 
values payable to a living employee or former employee, and any death 
benefits not provided for by insurance on the employee's or former 
employee's life.
    (iv) Nonapplicability in certain cases. The restrictions in this 
paragraph (b)(3) do not apply, however, if any one of the following 
requirements is satisfied:
    (A) After taking into account payment to or on behalf of the 
restricted employee of all benefits payable to or on behalf of that 
restricted employee under the plan, the value of plan assets must equal 
or exceed 110 percent of the value of current liabilities, as defined in 
section 412(l)(7).
    (B) The value of the benefits payable to or on behalf of the 
restricted employee must be less than one percent of the value of 
current liabilities before distribution.

[[Page 133]]

    (C) The value of the benefits payable to or on behalf of the 
restricted employee must not exceed the amount described in section 
411(a)(11)(A) (restrictions on certain mandatory distributions).
    (v) Determination of current liabilities. For purposes of this 
paragraph (b), any reasonable and consistent method may be used for 
determining the value of current liabilities and the value of plan 
assets.
    (4) Operational restrictions on certain money purchase pension 
plans. A money purchase pension plan that has an accumulated funding 
deficiency, within the meaning of section 412(a), or an unamortized 
funding waiver, within the meaning of section 412(d), must comply in 
operation with the restrictions on benefits and distributions as 
described in paragraphs (b)(2) and (b)(3) of this section. Such a plan 
does not fail to satisfy section 411(d)(6) merely because of 
restrictions imposed by the requirements of this paragraph (b)(4).

[T.D. 8485, 58 FR 46800, Sept. 3, 1993]



Sec. 1.401(a)(4)-6  Contributory defined benefit plans.

    (a) Introduction. This section provides rules necessary for 
determining whether a contributory DB plan satisfies the 
nondiscriminatory amount requirement of Sec. 1.401(a)(4)-1(b)(2). 
Paragraph (b) of this section provides rules for determining the amount 
of benefits derived from employer contributions (employer-provided 
benefits) under a contributory DB plan for purposes of determining 
whether the plan satisfies Sec. 1.401(a)(4)-1(b)(2) with respect to such 
amounts. Paragraph (c) of this section provides the exclusive rules for 
determining whether a contributory DB plan satisfies Sec. 1.401(a)(4)-
1(b)(2) with respect to the amount of benefits derived from employee 
contributions not allocated to separate accounts (employee-provided 
benefits). See Sec. 1.401(a)(4)-1(b)(2)(ii)(B) for the exclusive tests 
applicable to employee contributions allocated to separate accounts 
under a section 401(m) plan.
    (b) Determination of employer-provided benefit--(1) General rule. An 
employee's employer-provided benefit under a contributory DB plan for 
purposes of section 401(a)(4) equals the difference between the 
employee's total benefit and the employee's employee-provided benefit 
under the plan. The rules of section 411(c) generally must be used to 
determine the employee's employer-provided benefit for this purpose. 
However, paragraphs (b)(2) through (b)(6) of this section provide 
alternative methods for determining the employee's employer-provided 
benefit.
    (2) Composition-of-workforce method--(i) General rule. A 
contributory DB plan that satisfies paragraph (b)(2)(ii) (A) and (B) of 
this section may determine employees' employer-provided benefit rates 
under the rules of paragraph (b)(2)(iii) of this section.
    (ii) Eligibility requirements--(A) Uniform rate of employee 
contributions. A contributory DB plan satisfies this paragraph 
(b)(2)(ii)(A) if all employees make employee contributions at the same 
rate, expressed as a percentage of plan year compensation (the employee 
contribution rate). A plan does not fail to satisfy this paragraph 
(b)(2)(ii)(A) merely because it eliminates employee contributions for 
all employees with plan year compensation below a specified contribution 
breakpoint that is either a stated dollar amount or a stated percentage 
of covered compensation (within the meaning of Sec. 1.401(l)-1(c)(7)); 
or merely because all employees make employee contributions at the same 
rate (expressed as a percentage of plan year compensation) with respect 
to plan year compensation up to the contribution breakpoint (base 
employee contribution rate) and at a higher rate (expressed as a 
percentage of plan year compensation) that is the same for all employees 
with respect to plan year compensation above the contribution breakpoint 
(excess employee contribution rate). A plan described in paragraph 
(c)(4)(i) of this section that satisfies paragraph (c)(4)(iii) of this 
section is deemed to satisfy this paragraph.
    (B) Demographic requirements--(1) In general. A contributory DB plan 
satisfies this paragraph (b)(2)(ii)(B) if it satisfies either of the 
demographic tests in paragraph (b)(2)(ii)(B) (2) or (3) of this section.
    (2) Minimum percentage test. This test is satisfied only if more 
than 40 percent of the NHCEs in the plan have attained ages at least 
equal to the plan's target

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age, and more than 20 percent of the NHCEs in the plan have attained 
ages at least equal to the average attained age of the HCEs in the plan. 
For this purpose, a plan's target age is the lower of age 50 or the 
average attained age of the HCEs in the plan minus X years, where X 
equals 20 minus the product of five times the employee contribution rate 
under the plan. In no case, however, may X years be fewer than zero (0) 
years. Thus, for example, if the average attained age of the HCEs in the 
plan is 53 and the employee contribution rate is two percent of plan 
year compensation, the plan's target age is 43 years (i.e., 53 - (20 - 
(5  x  2))).
    (3) Ratio test. This test is satisfied only if the percentage of all 
nonhighly compensated nonexcludable employees, who are in the plan and 
who have attained ages at least equal to the average attained age of the 
HCEs in the plan, is at least 70 percent of the percentage of all highly 
compensated nonexcludable employees, who are in the plan and who have 
attained ages at least equal to the average attained age of the HCEs in 
the plan. Attained ages must be determined as of the beginning of the 
plan year. In lieu of determining the actual distribution of the 
attained ages of the HCEs, an employer may assume that 50 percent of all 
HCEs have attained ages at least equal to the average attained age of 
the HCEs.
    (iii) Determination of employer-provided benefit--(A) Safe harbor 
plans other than section 401(l) plans. For purposes of applying the 
exception to the safe harbor in Sec. 1.401(a)(4)-3(b)(6)(viii) with 
respect to employer-provided benefits under a plan other than a section 
401(l) plan, the employee's entire accrued benefit is treated as 
employer-provided.
    (B) Section 401(l) plans--(1) General rule. For purposes of applying 
the exception to the safe harbor in Sec. 1.401(a)(4)-3(b)(6)(viii) with 
respect to employer-provided benefits under a section 401(l) plan, an 
employee's base benefit percentage and excess benefit percentage are 
reduced, or an employee's gross benefit percentage is reduced, by 
subtracting the product of the employee contribution rate and the factor 
determined under paragraph (b)(2)(iv) of this section from the 
respective percentages for the plan year. For this purpose, the employee 
contribution rate is the highest rate of employee contributions 
applicable to any potential level of plan year compensation for that 
plan year under the plan.
    (2) Excess plans with varying contribution rates. In the case of a 
defined benefit excess plan described in the second sentence of 
paragraph (b)(2)(ii)(A) of this section, solely for purposes of reducing 
an employee's base benefit percentage as required under paragraph 
(b)(2)(iii)(B)(1) of this section, it may be assumed that the employee's 
employee contribution rate equals the weighted average of the base 
employee contribution rate and the excess employee contribution rate. In 
determining this weighted average, the weight of the base employee 
contribution rate is equal to a fraction, the numerator of which is the 
lesser of the integration level and the contribution breakpoint and the 
denominator of which is the integration level. The weight of the excess 
employee contribution rate is equal to the difference between one and 
the weight of the base employee contribution rate.
    (3) Offset plans with varying contribution rates. In the case of an 
offset plan described in the second sentence of paragraph (b)(2)(ii)(A) 
of this section, an equivalent adjustment to the alternative method in 
paragraph (b)(2)(iii)(B)(2) of this section may be made to the offset 
percentage.
    (C) Employer-provided benefits under the general test. For purposes 
of applying the general test of Sec. 1.401(a)(4)-3(c) with respect to 
employer-provided benefits, an employee's normal and most valuable 
accrual rates otherwise determined under Sec. 1.401(a)(4)-3(d) (without 
applying any of the options under Sec. 1.401(a)(4)-3(d)(3) other than 
the fresh-start alternative of Sec. 1.401(a)(4)-3(d)(3)(iii)) are each 
reduced by subtracting the product of the employee's contributions 
(expressed as a percentage of plan year compensation) and the factor 
determined under paragraph (b)(2)(iv) of this section from the 
respective accrual rates. A plan may then apply the optional rules in 
Sec. 1.401(a)(4)-3(d)(3) (i) and (ii) to this resulting accrual rate.

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    (D) Additional limitation. A plan may not use the composition-of-
workforce method provided in this paragraph (b)(2) to determine an 
employee's base benefit percentage, excess benefit percentage, gross 
benefit percentage, offset percentage, or accrual rates unless employee 
contributions have been made at the same rate (or rates) throughout the 
period after the fresh-start date or throughout the measurement period 
used to determine accrual rates.
    (iv) Determination of plan factor. The factor for a plan is 
determined under the following table based on the average entry age of 
the employees in the plan and on whether the plan determines benefits 
based on average compensation. For this purpose, average entry age 
equals the average attained age of all employees in the plan, minus the 
average years of participation of all employees in the plan. A plan is 
treated as determining benefits based on average compensation if it 
determines benefits based on compensation averaged over a specified 
period not exceeding five consecutive years (or the employee's entire 
period of employment with the employer, if shorter).

                            Table of Factors                            
------------------------------------------------------------------------
                                                        Factors         
                                              --------------------------
                                                  Average               
              Average entry age                compensation     Other   
                                                  benefit      formulas 
                                                  formula               
------------------------------------------------------------------------
Less than 30.................................           0.5         0.75
30 to 40.....................................           0.4         0.6 
Over 40......................................           0.2         0.3 
------------------------------------------------------------------------


    (v) Examples. The following examples illustrate the rules of this 
paragraph (b)(2):

    Example 1. Plan A is a contributory DB plan that is a defined 
benefit excess plan providing a benefit equal to 2.0 percent of 
employees' average annual compensation at or below covered compensation, 
plus 2.5 percent of average annual compensation above covered 
compensation, times years of service up to 35. Under the plan, average 
annual compensation is determined using a five-consecutive-year period 
for purposes of Sec. 1.401(a)(4)-3(e)(2). The plan requires employee 
contributions at a rate of four percent of plan year compensation for 
all employees. Assume that the plan satisfies the demographic 
requirements of paragraph (b)(2)(ii)(B) of this section. Under these 
facts, the plan satisfies the eligibility requirements of paragraph 
(b)(2)(ii) of this section. Assume, further, that the average attained 
age for all employees in the plan is 55, and that the average years of 
participation of all employees in the plan is 10. The average entry age 
for the plan is therefore 45, and, accordingly, the appropriate factor 
under the table is 0.2. Thus, in applying the safe harbor requirements 
of Sec. 1.401(a)(4)-3(b) to this plan for the plan year (including the 
requirements of Sec. 1.401(l)-3), the employee's base benefit percentage 
and excess benefit percentage are each reduced by 0.8 percent (4 percent 
 x  0.2) and equal 1.2 percent and 1.7 percent, respectively.
    Example 2. The facts are the same as in Example 1, except that the 
employee contribution rate is two percent of plan year compensation up 
to the covered compensation level, and four percent for plan year 
compensation at or above that contribution breakpoint. The employer 
elects to apply the alternative method in paragraph (b)(2)(iii)(B)(2) of 
this section to determine the reduction in the base benefit percentage. 
Because the contribution breakpoint is equal to the integration level, 
the weight of the employee contribution rate below the contribution 
breakpoint is 100 percent, and the weight of the employee contribution 
rate above the contribution breakpoint is zero. Thus, the weighted 
average of employee contribution rates is two percent. Under the 
alternative method in paragraph (b)(2)(iii)(B)(2) of this section, the 
reduction in the employee's base benefit percentage is 0.4. In applying 
the safe harbor requirements of Sec. 1.401(a)(4)-3(b) to this plan 
(including the requirements of Sec. 1.401(l)-3), the employee's base 
benefit percentage is 1.6 percent, and the employee's excess benefit 
percentage is 1.7.
    Example 3. The facts are the same as in Example 1, except that the 
employee contribution rate is two percent of plan year compensation up 
to 50 percent of the covered compensation level, and four percent for 
plan year compensation at or above that contribution breakpoint. Because 
the contribution breakpoint is equal to 50 percent of the integration 
level, the weight of the employee contribution rate below the 
contribution breakpoint is 50 percent, and the weight of the employee 
contribution rate above the contribution breakpoint is 50 percent. Thus, 
the weighted average of employee contribution rates is three percent. 
Under the alternative method in paragraph (b)(2)(iii)(B)(2) of this 
section, the reduction in the employee's base benefit percentage is 0.6. 
In applying the safe harbor requirements of Sec. 1.401(a)(4)-3(b) to 
this plan (including the requirements of Sec. 1.401(l)-3), the 
employee's base benefit percentage is 1.4 percent, and the employee's 
excess benefit percentage is 1.7.

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    Example 4. The facts are the same as in Example 1, except that the 
plan is tested using the general test in Sec. 1.401(a)(4)-3(c). Assume 
Employee M benefits under Plan A and has a normal accrual rate for the 
plan year (calculated with respect to Employee M's total accrued 
benefit) of 2.2 percent of average annual compensation. In applying the 
general test in Sec. 1.401(a)(4)-3(c) with respect to employer-provided 
benefits, this rate is reduced by 0.8 to yield a normal accrual rate of 
1.4 percent. This rate may then be adjusted using either of the optional 
rules in Sec. 1.401(a)(4)-3(d)(3)(i) or (ii).

    (3) Minimum-benefit method--(i) Application of uniform factors. A 
contributory DB plan that satisfies the uniform rate requirement of 
paragraph (b)(2)(ii)(A) of this section and the minimum benefit 
requirement of paragraph (b)(3)(ii) of this section may apply the 
adjustments provided in paragraph (b)(2)(iii) of this section as if the 
average entry age of employees in the plan were within the range of 30 
to 40, without regard to the actual demographics of the employees in the 
plan.
    (ii) Minimum benefit requirement. This requirement is satisfied if 
the plan provides that, in plan years beginning on or after the 
effective date of these regulations, as set forth in Sec. 1.401(a)(4)-
13(a) and (b), each employee will accrue a benefit that equals or 
exceeds the sum of--
    (A) The accrued benefit derived from employee contributions made for 
plan years beginning on or after the effective date of these 
regulations, determined in accordance with section 411(c); and
    (B) Fifty percent of the total benefit accrued in plan years 
beginning on or after the effective date of these regulations, as 
determined under the plan benefit formula without regard to that portion 
of the formula designed to satisfy the minimum benefit requirement of 
this paragraph (b)(3)(ii).
    (iii) Example. The following example illustrates the minimum-benefit 
method of this paragraph (b)(3):

    Example. Plan A is contributory DB plan. For the plan year beginning 
in 1994, Employee M participates in Plan A and accrues a benefit under 
the terms of the plan (without regard to the minimum benefit requirement 
of paragraph (b)(3)(ii) of this section) of $3,000. The portion of 
Employee M's benefit accrual for the plan year beginning in 1994 derived 
from employee contributions is $2,000, determined by applying the rules 
of section 411(c) to such contributions. The requirement of paragraph 
(b)(3)(ii) of this section is not satisfied for the plan year beginning 
in 1994 unless the plan provides that Employee M's benefit accrual for 
the plan year beginning in 1994 is equal to $3,500 ($2,000 + (50 percent 
 x  $3,000)).


    (4) Grandfather rule for plans in existence on May 14, 1990. A 
contributory DB plan that satisfies paragraph (c)(4) of this section may 
determine an employee's employer-provided benefit by subtracting from 
the employee's total benefit the employee-provided benefits determined 
using any reasonable method set forth in the plan, provided that it is 
the same method used in determining whether the plan satisfies paragraph 
(c)(4)(ii)(D) of this section.
    (5) Government-plan method. A contributory DB plan that is 
established and maintained for its employees by the government of any 
state or political subdivision or by any agency or instrumentality 
thereof may treat an employee's total benefit as entirely employer-
provided.
    (6) Cessation of employee contributions. If a contributory DB plan 
provides that no employee contributions may be made to the plan after 
the last day of the first plan year beginning on or after the effective 
date of these regulations, as set forth in Sec. 1.401(a)(4)-13 (a) and 
(b), the plan may treat an employee's total benefit as entirely 
employer-provided.
    (c) Rules applicable in determining whether employee-provided 
benefits are nondiscriminatory in amount--(1) In general. A contributory 
DB plan satisfies Sec. 1.401(a)(4)-1(b)(2) with respect to the amount of 
employee-provided benefits for a plan year only if the plan satisfies 
the requirements of paragraph (c)(2), (c)(3), or (c)(4) of this section 
for the plan year. This requirement applies regardless of the method 
used to determine the amount of employer-provided benefits under 
paragraph (b) of this section.
    (2) Same rate of contributions. This requirement is satisfied for a 
plan year if the employee contribution rate (within the meaning of 
paragraph (b)(2)(ii)(A) of this section) is the same for all employees 
for the plan year.
    (3) Total-benefits method. This requirement is satisfied for a plan 
year if--

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    (i) The total benefits (i.e., the sum of employer-provided and 
employee-provided benefits) under the plan would satisfy 
Sec. 1.401(a)(4)-3 if all benefits were treated as employer-provided 
benefits; and
    (ii) The plan's contribution requirements satisfy paragraph 
(b)(2)(ii)(A) of this section.
    (4) Grandfather rules for plans in existence on May 14, 1990--(i) In 
general. This requirement is satisfied for a plan year if the plan 
contained provisions as of May 14, 1990, that meet the requirements of 
paragraph (c)(4)(ii) or (c)(4)(iii) of this section.
    (ii) Graded contribution rates. The plan's provisions meet the 
requirements of this paragraph (c)(4)(ii) if all the following 
requirements are met:
    (A) The provisions require employee contributions at a greater rate 
(expressed as a percentage of compensation) at higher levels of 
compensation than at lower levels of compensation.
    (B) The required rate of employee contributions is not increased 
after May 14, 1990, although the level of compensation at which employee 
contributions are required may be increased or decreased.
    (C) All employees are permitted to make employee contributions under 
the plan at a uniform rate with respect to all compensation, beginning 
no later than the last day of the first plan year to which these 
regulations apply, as set forth in Sec. 1.401(a)(4)-13 (a) and (b).
    (D) The benefits provided on account of employee contributions at 
lower levels of compensation are comparable to those provided on account 
of employee contributions at higher levels of compensation.
    (iii) Prior year compensation. The plan's provisions meet the 
requirements of this paragraph (c)(4)(iii) if they are part of a plan 
maintained by more than one employer that requires employee 
contributions and the rate of required employee contributions, expressed 
as a percentage of compensation for the last calendar year ending before 
the beginning of the plan year, is the same for all employees.

[T.D. 8485, 58 FR 46802, Sept. 3, 1993]



Sec. 1.401(a)(4)-7  Imputation of permitted disparity.

    (a) Introduction. In determining whether a plan satisfies section 
401(a)(4) with respect to the amount of contributions or benefits, 
section 401(a)(5)(C) allows the disparities permitted under section 
401(l) to be taken into account. For purposes of satisfying the safe 
harbors of Secs. 1.401(a)(4)-2(b)(2) and 1.401(a)(4)-3(b), permitted 
disparity may be taken into account only by satisfying section 401(l) in 
form in accordance with Sec. 1.401(l)-2 or 1.401(l)-3, respectively. For 
purposes of the general tests of Secs. 1.401(a)(4)-2(c) and 1.401(a)(4)-
3(c), permitted disparity may be taken into account only in accordance 
with the rules of this section. In general, this section allows 
permitted disparity to be arithmetically imputed with respect to 
employer-provided contributions or benefits by determining an adjusted 
allocation or accrual rate that appropriately accounts for the permitted 
disparity with respect to each employee. Paragraph (b) of this section 
provides rules for imputing permitted disparity with respect to 
employer-provided contributions by adjusting each employee's unadjusted 
allocation rate. Paragraph (c) of this section provides rules for 
imputing permitted disparity with respect to employer-provided benefits 
by adjusting each employee's unadjusted accrual rate. Paragraph (d) of 
this section provides rules of general application.
    (b) Adjusting allocation rates--(1) In general. The rules in this 
paragraph (b) produce an adjusted allocation rate for each employee by 
determining the excess contribution percentage under the hypothetical 
formula that would yield the allocation actually received by the 
employee, if the plan took into account the full disparity permitted 
under section 401(l)(2) and used the taxable wage base as the 
integration level. This adjusted allocation rate is used to determine 
whether the amount of contributions under the plan satisfies the general 
test of Sec. 1.401(a)(4)-2(c) and to apply the average benefit 
percentage test on the basis of contributions under Sec. 1.410(b)-5(d). 
Paragraphs (b)(2) and (b)(3) of this section apply to employees whose 
plan year compensation does

[[Page 138]]

not exceed and does exceed, respectively, the taxable wage base, and 
paragraph (b)(4) of this section provides definitions.
    (2) Employees whose plan year compensation does not exceed taxable 
wage base. If an employee's plan year compensation does not exceed the 
taxable wage base, the employee's adjusted allocation rate is the lesser 
of the A rate and the B rate determined under the formulas below, where 
the permitted disparity rate and the unadjusted allocation rate are 
determined under paragraph (b)(4) (ii) and (iv) of this section, 
respectively.

A Rate=2 x unadjusted allocation rate
B Rate=unadjusted allocation rate+permitted disparity rate

    (3) Employees whose plan year compensation exceeds taxable wage 
base. If an employee's plan year compensation exceeds the taxable wage 
base, the employee's adjusted allocation rate is the lesser of the C 
rate and the D rate determined under the formulas below, where 
allocations and the permitted disparity rate are determined under 
paragraph (b)(4) (i) and (ii) of this section, respectively.
[GRAPHIC] [TIFF OMITTED] TC05OC91.012

    (4) Definitions. In applying this paragraph (b), the following 
definitions govern--
    (i) Allocations. Allocations means the amount determined by 
multiplying the employee's plan year compensation by the employee's 
unadjusted allocation rate.
    (ii) Permitted disparity rate--(A) General rule. Permitted disparity 
rate means the rate in effect as of the beginning of the plan year under 
section 401(l)(2)(A)(ii) (e.g., 5.7 percent for plan years beginning in 
1990).
    (B) Cumulative permitted disparity limit. Notwithstanding paragraph 
(b)(4)(ii)(A) of this section, the permitted disparity rate is zero for 
an employee who has benefited under a defined benefit plan taken into 
account under Sec. 1.401(l)-5(a)(3) for a plan year that begins on or 
after one year from the first day of the first plan year to which these 
regulations apply, as set forth in Sec. 1.401(a)(4)-13 (a) and (b), if 
imputing permitted disparity would result in a cumulative disparity 
fraction for the employee, as defined in Sec. 1.401(l)-5(c)(2), that 
exceeds 35. See Sec. 1.401(l)-5(c)(1) for special rules for determining 
whether an employee has benefited under a defined benefit plan for this 
purpose.
    (iii) Taxable wage base. Taxable wage base means the taxable wage 
base, as defined in Sec. 1.401(l)-1(c)(32), in effect as of the 
beginning of the plan year.
    (iv) Unadjusted allocation rate. Unadjusted allocation rate means 
the employee's allocation rate determined under Sec. 1.401(a)(4)-
2(c)(2)(i) for the plan year (expressed as a percentage of plan year 
compensation), without imputing permitted disparity under this section.
    (5) Example. The following example illustrates the rules in this 
paragraph (b):

    Example. (a) Employees M and N participate in a defined contribution 
plan maintained by Employer X. Employee M has plan year compensation of 
$30,000 in the 1990 plan year and has an unadjusted allocation rate of 
five percent. Employee N has plan year compensation of $100,000 in the 
1990 plan year and has an unadjusted allocation rate of eight percent. 
The taxable wage base in 1990 is $51,300.
    (b) Because Employee M's plan year compensation does not exceed the 
taxable wage base, Employee M's A rate is 10 percent (2 x 5 percent), 
and Employee M's B rate is 10.7 percent (5 percent+5.7 percent). Thus, 
Employee M's adjusted allocation rate is 10 percent, the lesser of the A 
rate and the B rate.

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    (c) Employee N's allocations are $8,000 (8 percent x $100,000). 
Because Employee N's plan year compensation exceeds the taxable wage 
base, Employee N's C rate is 10.76 percent ($8,000 divided by 
($100,000-(\1/2\ x $51,300))), and Employee N's D rate is 10.92 percent 
(($8,000+ (5.7 percent x $51,300)) divided by $100,000). Thus, Employee 
N's adjusted allocation rate is 10.76 percent, the lesser of the C rate 
and the D rate.

    (c) Adjusting accrual rates--(1) In general. The rules in this 
paragraph (c) produce an adjusted accrual rate for each employee by 
determining the excess benefit percentage under the hypothetical plan 
formula that would yield the employer-provided accrual actually received 
by the employee, if the plan took into account the full permitted 
disparity under section 401(l)(3)(A) in each of the first 35 years of an 
employee's testing service under the plan and used the employee's 
covered compensation as the integration level. This adjusted accrual 
rate is used to determine whether the amount of employer-provided 
benefits under the plan satisfies the alternative safe harbor for flat 
benefit plans under Sec. 1.401(a)(4)-3(b)(4)(i)(C)(3) or the general 
test of Sec. 1.401(a)(4)-3(c), and to apply the average benefit 
percentage test on the basis of benefits under Sec. 1.410(b)-5. 
Paragraphs (c)(2) and (c)(3) of this section apply to employees whose 
average annual compensation does not exceed and does exceed, 
respectively, covered compensation, and paragraph (c)(4) of this section 
provides definitions. Paragraph (c)(5) of this section provides a 
special rule for employees with negative unadjusted accrual rates.
    (2) Employees whose average annual compensation does not exceed 
covered compensation. If an employee's average annual compensation does 
not exceed the employee's covered compensation, the employee's adjusted 
accrual rate is the lesser of the A rate and the B rate determined under 
the formulas below, where the permitted disparity factor and the 
unadjusted accrual rate are determined under paragraph (c)(4)(iii) and 
(v) of this section, respectively.
[GRAPHIC] [TIFF OMITTED] TC05OC91.013

    (3) Employees whose average annual compensation exceeds covered 
compensation. If an employee's average annual compensation exceeds the 
employee's covered compensation, the employee's adjusted accrual rate is 
the lesser of the C rate and D rate determined under the formulas below, 
where the employer-provided accrual and the permitted disparity factor 
are determined under paragraph (c)(4)(ii) and (iii) of this section, 
respectively.
[GRAPHIC] [TIFF OMITTED] TC05OC91.014

    (4) Definitions. For purposes of this paragraph (c), the following 
definitions apply.
    (i) Covered compensation. Covered compensation means covered 
compensation as defined in Sec. 1.401(l)-1(c)(7). Notwithstanding 
Sec. 1.401(l)-1(c)(7)(iii), an employee's covered compensation must be 
automatically adjusted each plan year for purposes of applying this 
paragraph (c).
    (ii) Employer-provided accrual. Employer-provided accrual means the 
amount determined by multiplying the

[[Page 140]]

employee's average annual compensation by the employee's unadjusted 
accrual rate.
    (iii) Permitted disparity factor--(A) General rule. Permitted 
disparity factor for an employee means the sum of the employee's annual 
permitted disparity factors determined under paragraph (c)(4)(iii)(B) of 
this section for each of the years in the measurement period used for 
determining the employee's accrual rate in Sec. 1.401(a)(4)-3(d)(1), 
divided by the employee's testing service during that measurement 
period.
    (B) Annual permitted disparity factor--(1) Definition. An employee's 
annual permitted disparity factor is generally 0.75 percent adjusted, 
pursuant to Sec. 1.401(l)-3(e), using as the age at which benefits 
commence the lesser of age 65 or the employee's testing age. No 
adjustments are made in the annual permitted disparity factor unless an 
employee's testing age is different from the employee's social security 
retirement age. An annual permitted disparity factor that is less than 
the annual permitted disparity factor described in the first sentence of 
this paragraph (c)(4)(iii)(B)(1) may be used if it is a uniform 
percentage of that factor (e.g., 50 percent of the annual permitted 
disparity factor) or a fixed percentage (e.g., 0.65 percent) for all 
employees.
    (2) Annual permitted disparity factor after 35 years. For purposes 
of determining the sum described in paragraph (c)(4)(iii)(A) of this 
section, the annual permitted disparity factor for each of the 
employee's first 35 years of testing service is the amount described in 
paragraph (c)(4)(iii)(B)(1) of this section, and the annual permitted 
disparity factor in any subsequent year equals zero. This rule applies 
regardless of whether the end of the measurement period extends beyond 
an employee's first 35 years of testing service. Thus, for example, if 
the measurement period is the current plan year and the employee 
completed 35 years of testing service prior to the beginning of the 
current plan year, under this paragraph (c)(4)(iii)(B)(2) the annual 
permitted disparity factor in the current plan year (and hence the sum 
of the annual permitted disparity factors for each year in the 
measurement period) is zero.
    (3) Cumulative permitted disparity limit. The 35 years used in 
paragraph (c)(4)(iii)(B)(2) of this section must be reduced by the 
employee's cumulative disparity fraction, as defined in Sec. 1.401(l)-
5(c)(2), but determined solely with respect to the employee's total 
years of service under all plans taken into account under Sec. 1.401(l)-
5(a)(3) during the measurement period, other than the plan being tested.
    (iv) Social security retirement age. Social security retirement age 
means social security retirement age as defined in section 415(b)(8).
    (v) Unadjusted accrual rate. Unadjusted accrual rate means the 
normal or most valuable accrual rate, whichever is being determined for 
the employee under Sec. 1.401(a)(4)-3(d), expressed as a percentage of 
average annual compensation, without imputing permitted disparity under 
this section.
    (5) Employees with negative unadjusted accrual rates. 
Notwithstanding the formulas in paragraph (c)(2) and (c)(3) of this 
section, if an employee's unadjusted accrual rate is less than zero, the 
employee's adjusted accrual rate is deemed to be the employee's 
unadjusted accrual rate.
    (6) Example. The following example illustrates the rules in this 
paragraph (c):

    Example. (a) Employees M and N participate in a defined benefit plan 
that uses a normal retirement age of 65. The plan is being tested for 
the plan year under Sec. 1.401(a)(4)-3(c), using unadjusted accrual 
rates determined using a plan year measurement period under 
Sec. 1.401(a)(4)-3(d)(1)(iii)(A). Employee M has an unadjusted normal 
accrual rate of 1.48 percent, average annual compensation of $21,000, 
and an employer-provided accrual of $311 (1.48 percent x $21,000). 
Employee N has an unadjusted normal accrual rate of 1.7 percent, average 
annual compensation of $106,000, and an employer-provided accrual of 
$1,802 (1.7 percent x $106,000). The covered compensation of both 
Employees M and N is $25,000, and social security retirement age for 
both employees is 65. Neither employee has testing service of more than 
35 years and neither has ever participated in another plan.
    (b) Because Employee M's average annual compensation does not exceed 
covered compensation, Employee M's A rate is 2.96 percent (2.0 x 1.48 
percent), and Employee M's B rate is 2.23 percent (1.48 percent+0.75 
percent). Thus, Employee M's adjusted accrual

[[Page 141]]

rate is 2.23 percent, the lesser of the A rate and the B rate.
    (c) Because Employee N's average annual compensation exceeds covered 
compensation, Employee N's C rate is 1.93 percent ($1,802/
($106,000-(0.5 x $25,000))), and Employee N's D rate is 1.88 percent 
(($1,802+(0.75 percent x $25,000))/$106,000). Thus, Employee N's 
adjusted accrual rate is 1.88 percent, the lesser of the C rate and the 
D rate.


    (d) Rules of general application--(1) Eligible plans. The rules in 
this section may be used only for those plans to which the permitted 
disparity rules of section 401(l) are available. See Sec. 1.401(l)-
1(a)(3).
    (2) Exceptions from consistency requirements. A plan does not fail 
to satisfy the consistency requirements of Sec. 1.401(a)(4)-2(c)(2)(vi) 
or Sec. 1.401(a)(4)-3(d)(2)(i) merely because the plan does not impute 
disparity for some employees to the extent required to comply with 
paragraph (d)(3) of this section, or because the plan does not impute 
disparity for any employees (including self-employed individuals within 
the meaning of section 401(c)(1)) who are not covered by any of the 
taxes under section 3111(a), section 3221, or section 1401.
    (3) Overall permitted disparity. The annual overall permitted 
disparity limits of Sec. 1.401(l)-5(b) apply to the employer-provided 
contributions and benefits for an employee under all plans taken into 
account under Sec. 1.401(l)-5(a)(3). Thus, if an employee who benefits 
under the plan for the current plan year also benefits under a section 
401(l) plan for the plan year ending with or within the current plan 
year, permitted disparity may not be imputed for that employee for the 
plan year. See Sec. 1.401(l)-5(b)(9), Example 4. Similarly, if an 
employee who benefits under the plan for the current plan year also 
benefits under another plan of the employer for the plan year ending 
with or within the current plan year, disparity may be imputed for that 
employee under only one of the plans.

[T.D. 8485, 58 FR 46804, Sept. 3, 1993]



Sec. 1.401(a)(4)-8  Cross-testing.

    (a) Introduction. This section provides rules for testing defined 
benefit plans on the basis of equivalent employer-provided contributions 
and defined contribution plans on the basis of equivalent employer-
provided benefits under Sec. 1.401(a)(4)-1(b)(2). Paragraphs (b)(1) and 
(c)(1) of this section provide general tests for nondiscrimination based 
on individual equivalent accrual or allocation rates determined under 
paragraphs (b)(2) and (c)(2) of this section, respectively. Paragraphs 
(b)(3), (c)(3), and (d) of this section provide additional safe-harbor 
testing methods for target benefit plans, cash balance plans, and 
defined benefit plans that are part of floor-offset arrangements, 
respectively, that generally may be satisfied on a design basis.
    (b) Nondiscrimination in amount of benefits provided under a defined 
contribution plan--(1) General rule. Equivalent benefits under a defined 
contribution plan (other than an ESOP) are nondiscriminatory in amount 
for a plan year if the plan would satisfy Sec. 1.401(a)(4)-2(c)(1) for 
the plan year if an equivalent accrual rate, as determined under 
paragraph (b)(2) of this section, were substituted for each employee's 
allocation rate in the determination of rate groups. A plan does not 
fail to satisfy this paragraph (b)(1) merely because allocations are 
made at the same rate for employees who are older than their testing age 
(determined without regard to the current-age rule in paragraph (4) of 
the definition of Testing age in Sec. 1.401(a)(4)-(12) as they are made 
for employees who are at that age.
    (2) Determination of equivalent accrual rates--(i) Basic definition. 
An employee's equivalent accrual rate for a plan year is the annual 
benefit that is the result of normalizing the increase in the employee's 
account balance during the measurement period, divided by the number of 
years in which the employee benefited under the plan during the 
measurement period, and expressed either as a dollar amount or as a 
percentage of the employee's average annual compensation. A measurement 
period that includes future years may not be used for this purpose.
    (ii) Rules of application--(A) Determination of account balance. The 
increase in the account balance during the measurement period taken into 
account under paragraph (b)(2)(i) of this

[[Page 142]]

section does not include income, expenses, gains, or losses allocated 
during the measurement period that are attributable to the account 
balance as of the beginning of the measurement period, but does include 
any additional amounts that would have been included in the increase in 
the account balance but for the fact that they were previously 
distributed (including a reasonable adjustment for interest). In the 
case of a measurement period that is the current plan year, an employer 
may also elect to disregard the income, expenses, gains, and losses 
allocated during the current plan year that are attributable to the 
increase in account balance since the beginning of the year, and thus, 
determine the increase in account balance during the plan year taking 
into account only the allocations described in Sec. 1.401(a)(4)-
2(c)(2)(ii). In addition, an employer may disregard distributions made 
to a NHCE as well as distributions made to any employee in plan years 
beginning before a selected date no later than January 1, 1986.
    (B) Normalization. The account balances determined under paragraph 
(b)(2)(ii)(A) of this section are normalized by treating them as single-
sum benefits that are immediately and unconditionally payable to the 
employee. A standard interest rate, and a straight life annuity factor 
that is based on the same or a different standard interest rate and on a 
standard mortality table, must be used in normalizing these benefits. In 
addition, no mortality may be assumed prior to the employee's testing 
age.
    (iii) Options. Any of the optional rules in Sec. 1.401(a)(4)-3(d)(3) 
(e.g., imputation of permitted disparity) may be applied in determining 
an employee's equivalent accrual rate by substituting the employee's 
equivalent accrual rate (determined without regard to the option) for 
the employee's normal accrual rate (i.e., not most valuable accrual 
rate) in that section where appropriate. For this purpose, however, the 
last sentence of the fresh-start alternative in Sec. 1.401(a)(4)-
3(d)(3)(iii)(A) (dealing with compensation adjustments to the frozen 
accrued benefit) is not applicable. No other options are available in 
determining an employee's equivalent accrual rate except those (e.g., 
selection of alternative measurement periods) specifically provided in 
this paragraph (b)(2). Thus, for example, none of the optional special 
rules in Sec. 1.401(a)(4)-3(f) (e.g., determination of benefits on other 
than a plan year basis under Sec. 1.401(a)(4)-3(f)(6)) is available.
    (iv) Consistency rule. Equivalent accrual rates must be determined 
in a consistent manner for all employees for the plan year. Thus, for 
example, the same measurement periods and standard interest rates must 
be used, and any available options must be applied consistently if at 
all.
    (3) Safe-harbor testing method for target benefit plans--(i) General 
rule. A target benefit plan is a money purchase pension plan under which 
contributions to an employee's account are determined by reference to 
the amounts necessary to fund the employee's stated benefit under the 
plan. Whether a target benefit plan satisfies section 401(a)(4) with 
respect to an equivalent amount of benefits is generally determined 
under paragraphs (b)(1) and (b)(2) of this section. A target benefit 
plan is deemed to satisfy section 401(a)(4) with respect to an 
equivalent amount of benefits, however, if each of the following 
requirements is satisfied:
    (A) Stated benefit formula. Each employee's stated benefit must be 
determined as the straight life annuity commencing at the employee's 
normal retirement age under a formula that would satisfy the 
requirements of Sec. 1.401(a)(4)-3(b)(4)(i)(C) (1) or (2), and that 
would satisfy each of the uniformity requirements in Sec. 1.401(a)(4)-
3(b)(2) (taking into account the relevant exceptions provided in 
Sec. 1.401(a)(4)-3(b)(6)), if the plan were a defined benefit plan with 
the same benefit formula. In determining whether these requirements are 
satisfied, the rules of Sec. 1.401(a)(4)-3(f) do not apply, and, in 
addition, except as provided in paragraph (b)(3)(vii) of this section, 
an employee's stated benefit at normal retirement age under the stated 
benefit formula is deemed to accrue ratably over the period ending with 
the plan year in which the employee is projected to reach normal 
retirement age and beginning with the latest of: the first plan year in

[[Page 143]]

which the employee benefited under the plan, the first plan year taken 
into account in the stated benefit formula, and any plan year 
immediately following a plan year in which the plan did not satisfy this 
paragraph (b)(3). Thus, except as provided in paragraph (b)(3)(vii) of 
this section, under Sec. 1.401(a)(4)-3(b)(2)(v) an employee's stated 
benefit may not take into account service in years prior to the first 
plan year that the employee benefited under the plan, and an employee's 
stated benefit may not take into account service in plan years prior to 
the current plan year unless the plan satisfied this paragraph (b)(3) in 
all of those prior plan years.
    (B) Employer and employee contributions. Employer contributions with 
respect to each employee must be based exclusively on the employee's 
stated benefit using the method provided in paragraph (b)(3)(iv) of this 
section, and forfeitures and any other amounts under the plan taken into 
account under Sec. 1.401(a)(4)-2(c)(2)(ii) (other than employer 
contributions) are used exclusively to reduce employer contributions. 
Employee contributions (if any) may not be used to fund the stated 
benefit.
    (C) Permitted disparity. If permitted disparity is taken into 
account, the stated benefit formula must satisfy Sec. 1.401(l)-3. For 
this purpose, the 0.75-percent factor in the maximum excess or offset 
allowance in Sec. 1.401(l)-3(b)(2)(i) or (b)(3)(i), respectively, as 
adjusted in accordance with Sec. 1.401(l)-3(d)(9) (and, if the 
employee's normal retirement age is not the employee's social security 
retirement age, Sec. 1.401(l)-3(e)), is further reduced by multiplying 
the factor by 0.80.
    (ii) Changes in stated benefit formula. A plan does not fail to 
satisfy paragraph (b)(3)(i) of this section merely because the plan 
determines each employee's stated benefit in the current plan year under 
a stated benefit formula that differs from the stated benefit formula 
used to determine the employee's stated benefit in prior plan years.
    (iii) Stated benefits after normal retirement age. A target benefit 
plan may limit increases in the stated benefit after normal retirement 
age consistent with the requirements applicable to defined benefit plans 
under section 411(b)(1)(H) (without regard to section 
411(b)(1)(H)(iii)), provided that the limitation applies on the same 
terms to all employees. Thus, post-normal retirement benefits required 
under Sec. 1.401(a)(4)-3(b)(2)(ii) must be provided under the stated 
benefit formula, subject to any uniformly applicable service cap under 
the formula.
    (iv) Method for determining required employer contributions--(A) 
General rule. An employer's required contribution to the account of an 
employee for a plan year is determined based on the employee's stated 
benefit and the amount of the employee's theoretical reserve as of the 
date the employer's required contribution is determined for the plan 
year (the determination date). Paragraph (b)(3)(iv)(B) of this section 
provides rules for determining an employee's theoretical reserve. 
Paragraph (b)(3)(iv) (C) and (D) of this section provides rules for 
determining an employer's required contributions.
    (B) Theoretical reserve--(1) Initial theoretical reserve. An 
employee's theoretical reserve as of the determination date for the 
first plan year in which the employee benefits under the plan, the first 
plan year taken into account under the stated benefit formula (if that 
is the current plan year), or the first plan year immediately following 
any plan year in which the plan did not satisfy this paragraph (b)(3), 
is zero.
    (2) Theoretical reserve in subsequent plan years. An employee's 
theoretical reserve as of the determination date for a plan year (other 
than a plan year described in paragraph (b)(3)(iv)(B)(1) of this 
section) is the employee's theoretical reserve as of the determination 
date for the prior plan year, plus the employer's required contribution 
for the prior plan year (as limited by section 415, but without regard 
to the additional contributions described in paragraph (b)(3)(v) of this 
section) both increased by interest from the determination date for the 
prior plan year through the determination date for the current plan 
year, but not beyond the determination date for the plan year that 
includes the employee's normal retirement date. (Thus, an employee's

[[Page 144]]

theoretical reserve as of the determination date for a plan year does 
not include the amount of the employer's required contribution for the 
plan year.) The interest rate for determining employer contributions 
that was in effect on the determination date in the prior plan year must 
be applied to determine the required interest adjustment for this 
period. For plan years beginning after the effective date applicable to 
the plan under Sec. 1.401(a)(4)-13(a) or (b), a standard interest rate 
must be used, and may not be changed except on the determination date 
for a plan year.
    (C) Required contributions for employees under normal retirement 
age. The required employer contributions with respect to an employee 
whose attained age is less than the employee's normal retirement age 
must be determined for each plan year as follows:
    (1) Determine the employee's fractional rule benefit (within the 
meaning of Sec. 1.411(b)-1(b)(3)(ii)(A)) under the plan's stated benefit 
formula as if the plan were a defined benefit plan with the same benefit 
formula.
    (2) Determine the actuarial present value of the fractional rule 
benefit determined in paragraph (b)(3)(iv)(C)(1) of this section as of 
the determination date for the current plan year, using a standard 
interest rate and a standard mortality table that are set forth in the 
plan and that are the same for all employees, and assuming no mortality 
before the employee's normal retirement age.
    (3) Determine the excess, if any, of the amount determined in 
paragraph (b)(3)(iv)(C)(2) of this section over the employee's 
theoretical reserve for the current plan year determined under paragraph 
(b)(3)(iv)(B) of this section.
    (4) Determine the required employer contribution for the current 
plan year by amortizing on a level annual basis, using the same interest 
rate used for paragraph (b)(3)(iv)(C)(2) of this section, the result in 
paragraph (b)(3)(iv)(C)(3) of this section over the period beginning 
with the determination date for the current plan year and ending with 
the determination date for the plan year in which the employee is 
projected to reach normal retirement age.
    (D) Required contributions for employees over normal retirement age. 
The required employer contributions with respect to an employee whose 
attained age equals or exceeds the employee's normal retirement age is 
the excess, if any, of the actuarial present value, as of the 
determination date for the current plan year, of the employee's stated 
benefit for the current plan year (determined using an immediate 
straight life annuity factor based on a standard interest rate and a 
standard mortality table, for an employee whose attained age equals the 
employee's normal retirement age) over the employee's theoretical 
reserve as of the determination date.
    (v) Effect of section 415 and 416 requirements. A target benefit 
plan does not fail to satisfy this paragraph (b)(3) merely because 
required contributions under the plan are limited by section 415 in a 
plan year. Similarly, a target benefit plan does not fail to satisfy 
this paragraph (b)(3) merely because additional contributions are made 
consistent with the requirements of section 416(c)(2) (regardless of 
whether the plan is top-heavy).
    (vi) Certain conditions on allocations. A target benefit plan does 
not fail to satisfy this paragraph (b)(3) merely because required 
contributions under the plan are subject to the conditions on 
allocations permitted under Sec. 1.401(a)(4)-2(b)(4)(iii).
    (vii) Special rules for target benefit plans qualified under prior 
law--(A) Service taken into account prior to satisfaction of this 
paragraph. For purposes of determining whether the stated benefit 
formula satisfies paragraph (b)(3)(i)(A) of this section (e.g., whether 
the period over which an employee's stated benefit is deemed to accrue 
is the same as the period taken into account under the stated benefit 
formula as required by paragraph (b)(3)(i)(A) of this section), a target 
benefit plan that was adopted and in effect on September 19, 1991, is 
deemed to have satisfied this paragraph (b)(3), and an employee is 
treated as benefiting under the plan, in any year prior to the effective 
date applicable to the plan under Sec. 1.401(a)(4)-13 (a) or (b) that 
was taken into account in the stated benefit formula under the plan on 
September 19, 1991, if

[[Page 145]]

the plan satisfied the applicable nondiscrimination requirements for 
target benefit plans for that prior year.
    (B) Initial theoretical reserve. Notwithstanding paragraph 
(b)(3)(iv)(B)(1) of this section, a target benefit plan under which the 
stated benefit formula takes into account service for an employee for 
plan years prior to the first plan year in which the plan satisfied this 
paragraph (b)(3), as permitted under paragraph (b)(3)(vii)(A) of this 
section, must determine an initial theoretical reserve for the employee 
as of the determination date for the last plan year beginning before 
such plan year under the rules of Sec. 1.401(a)(4)-13(e).
    (C) Satisfaction of prior law. In determining whether a plan 
satisfied the applicable nondiscrimination requirements for target 
benefit plans for any period prior to the effective date applicable to 
the plan under Sec. 1.401(a)(4)-13 (a) or (b), no amendments after 
September 19, 1991, other than amendments necessary to satisfy section 
401(l), are taken into account.
    (viii) Examples. The following examples illustrate the rules in this 
paragraph (b)(3):


    Example 1. (a) Employer X maintains a target benefit plan with a 
calendar plan year that bases contributions on a stated benefit equal to 
40 percent of each employee's average annual compensation, reduced pro 
rata for years of participation less than 25, payable annually as a 
straight life annuity commencing at normal retirement age. The UP-84 
mortality table and an interest rate of 7.5 percent are used to 
calculate the contributions necessary to fund the stated benefit. 
Required contributions are determined on the last day of each plan year. 
The normal retirement age under the plan is 65. Employee M is 39 years 
old in 1994, has participated in the plan for six years, and has average 
annual compensation equal to $60,000 for the 1994 plan year. Assume that 
Employee M's theoretical reserve as of the last day of the 1993 plan 
year is $13,909, determined under Sec. 1.401(a)(4)-13(e), and that 
required employer contributions for 1993 were determined using an 
interest rate of six percent.
    (b) Under these facts, Employer X's 1994 required contribution to 
fund Employee M's stated benefit is $1,318, calculated as follows:
    (1) Employee M's fractional rule benefit is $24,000 (40 percent of 
Employee M's average annual compensation of $60,000).
    (2) The actuarial present value of Employee M's fractional rule 
benefit as of the last day of the 1994 plan year is $30,960 (Employee 
M's fractional rule benefit of $24,000 multiplied by 1.290, the 
actuarial present value factor for an annual straight life annuity 
commencing at age 65 applicable to a 39-year-old employee, determined 
using the stated interest rate of 7.5 percent and the UP-84 mortality 
table, and assuming no mortality before normal retirement age).
    (3) The actuarial present value of Employee M's fractional rule 
benefit ($30,960) is reduced by Employee M's theoretical reserve as of 
the last day of the 1994 plan year. The theoretical reserve on that day 
is $14,744--the $13,909 theoretical reserve as of the last day of the 
1993 plan year, increased by interest for one year at the rate of six 
percent. Because the required contribution for the 1993 plan year is 
taken into account under Sec. 1.401(a)(4)-13(e)(2) in determining the 
theoretical reserve as of the last day of the 1993 plan year, it is not 
added to the theoretical reserve again in this paragraph (b)(3) of this 
Example 1. The resulting difference is $16,216 ($30,960-$14,744).
    (4) The $16,216 excess of the actuarial present value of Employee 
M's fractional rule benefit over Employee M's theoretical reserve is 
multiplied by 0.0813, the amortization factor applicable to a 39-year-
old employee determined using the stated interest rate of 7.5 percent. 
The product of $1,318 is the amount of the required employer 
contribution for Employee M for the 1994 plan year.
    Example 2. (a) The facts are the same as in Example 1, except that 
as of January 1, 1995, the plan's stated benefit formula is amended to 
provide for a stated benefit equal to 45 percent of average annual 
compensation, reduced pro rata for years of participation less than 25, 
payable annually as a straight life annuity commencing at normal 
retirement age. For the 1995 plan year, Employee M's average annual 
compensation continues to be $60,000. The mortality table used for the 
calculation of the employer's required contributions remains the same as 
in the prior plan year, but the plan's stated interest rate is changed 
to 8.0 percent effective as of December 31, 1995.
    (b) Under these facts, Employer X's required contribution for 
Employee M is $1,290, calculated as follows:
    (1) Employee M's fractional rule benefit is $27,000 (45 percent of 
$60,000).
    (2) The actuarial present value of Employee M's fractional rule 
benefit as of the last day of the 1995 plan year is $32,319 ($27,000 
multiplied by 1.197, the actuarial present value factor for an annuity 
commencing at age 65 applicable to a 40-year-old employee, determined 
using the stated interest rate of 8.0 percent and the UP-84 mortality 
table, and assuming no mortality before normal retirement age).

[[Page 146]]

    (3) The actuarial present value of Employee M's fractional rule 
benefit ($32,319) is reduced by Employee M's theoretical reserve as of 
the last day of the 1995 plan year. The theoretical reserve as of that 
day is $17,267--the $14,744 theoretical reserve as of the last day of 
the 1994 plan year plus the $1,318 required contribution for the 1994 
plan year, both increased by interest for one year at the rate of 7.5 
percent. The resulting difference is $15,052 ($32,319-$17,267).
    (4) The result in paragraph (b)(3) of this Example 2 is multiplied 
by 0.0857, the amortization factor applicable to a 40-year-old employee 
determined using the stated interest rate of 8.0 percent. The product, 
$1,290, is the amount of the required employer contribution for Employee 
M for the 1995 plan year.


    (c) Nondiscrimination in amount of contributions under a defined 
benefit plan--(1) General rule. Equivalent allocations under a defined 
benefit plan are nondiscriminatory in amount for a plan year if the plan 
would satisfy Sec. 1.401(a)(4)-3(c)(1) (taking into account 
Sec. 1.401(a)(4)-3(c)(3)) for the plan year if an equivalent normal and 
most valuable allocation rate, as determined under paragraph (c)(2) of 
this section, were substituted for each employee's normal and most 
valuable accrual rate, respectively, in the determination of rate 
groups.
    (2) Determination of equivalent allocation rates--(i) Basic 
definitions. An employee's equivalent normal and most valuable 
allocation rates for a plan year are, respectively, the actuarial 
present value of the increase over the plan year in the benefit that 
would be taken into account in determining the employee's normal and 
most valuable accrual rates for the plan year, expressed either as a 
dollar amount or as a percentage of the employee's plan year 
compensation. In the case of a contributory DB plan, the rules in 
Sec. 1.401(a)(4)-6(b)(1), (b)(5), or (b)(6) must be used to determine 
the amount of each employee's employer-provided benefit that would be 
taken into account for this purpose.
    (ii) Rules for determining actuarial present value. The actuarial 
present value of the increase in an employee's benefit must be 
determined using a standard interest rate and a standard mortality 
table, and no mortality may be assumed prior to the employee's testing 
age.
    (iii) Options. The optional rules in Sec. 1.401(a)(4)-2(c)(2)(iv) 
(imputation of permitted disparity) and (v) (grouping of rates) may be 
applied to determine an employee's equivalent normal and most valuable 
allocation rates by substituting those rates (determined without regard 
to the option) for the employee's allocation rate in that section where 
appropriate. In addition, the limitations under section 415 may be taken 
into account under Sec. 1.401(a)(4)-3(d)(2)(ii)(B), and qualified 
disability benefits may be taken into account as accrued benefits under 
Sec. 1.401(a)(4)-3(f)(2), in determining the increase in an employee's 
accrued benefit during a plan year for purposes of paragraph (c)(2)(i) 
of this section, if those rules would otherwise be available. No other 
options are available in determining an employee's equivalent normal and 
most valuable allocations rate except those (e.g., selection of 
alternative standard interest rates) specifically provided in this 
paragraph (c)(2). Thus, while all of the mandatory rules in 
Sec. 1.401(a)(4)-3(d) and (f) for determining the amount of benefits 
used to determine an employee's normal and most valuable accrual rates 
(e.g., the treatment of early retirement window benefits in 
Sec. 1.401(a)(4)-3(f)(4)) are applicable in determining an employee's 
equivalent normal and most valuable allocation rates, none of the 
optional rules under Sec. 1.401(a)(4)-3 is available (except the options 
relating to the section 415 limits and qualified disability benefits 
noted above).
    (iv) Consistency rule. Equivalent allocation rates must be 
determined in a consistent manner for all employees for the plan year. 
Thus, for example, the same standard interest rates must be used, and 
any available options must be applied consistently if at all.
    (3) Safe harbor testing method for cash balance plans--(i) General 
rule. A cash balance plan is a defined benefit plan that defines 
benefits for each employee by reference to the employee's hypothetical 
account. An employee's hypothetical account is determined by reference 
to hypothetical allocations and interest adjustments that are analogous 
to actual allocations of contributions and earnings to an employee's 
account under a defined contribution

[[Page 147]]

plan. Because a cash balance plan is a defined benefit plan, whether it 
satisfies section 401(a)(4) with respect to the equivalent amount of 
contributions is generally determined under paragraphs (c)(1) and (c)(2) 
of this section. However, a cash balance plan that satisfies each of the 
requirements in paragraphs (c)(3)(ii) through (xi) of this section is 
deemed to satisfy section 401(a)(4) with respect to an equivalent amount 
of contributions.
    (ii) Plan requirements in general. The plan must be an accumulation 
plan. The benefit formula under the plan must provide for hypothetical 
allocations for each employee in the plan that satisfy paragraph 
(c)(3)(iii) of this section, and interest adjustments to these 
hypothetical allocations that satisfy paragraph (c)(3)(iv) of this 
section. The benefit formula under the plan must provide that these 
hypothetical allocations and interest adjustments are accumulated as a 
hypothetical account for each employee, determined in accordance with 
paragraph (c)(3)(v) of this section. The plan must provide that an 
employee's accrued benefit under the plan as of any date is an annuity 
that is the actuarial equivalent of the employee's projected 
hypothetical account as of normal retirement age, determined in 
accordance with paragraph (c)(3)(vi) of this section. In addition, the 
plan must satisfy paragraphs (c)(3)(vii) through (xi) of this section 
(to the extent applicable) regarding optional forms of benefit, past 
service credits, post-normal retirement age benefits, certain uniformity 
requirements, and changes in the plan's benefit formula, respectively.
    (iii) Hypothetical allocations--(A) In general. The hypothetical 
allocations provided under the plan's benefit formula must satisfy 
either paragraph (c)(3)(iii)(B) or (C) of this section. Paragraph 
(c)(3)(iii)(B) of this section provides a design-based safe harbor that 
does not require the annual comparison of hypothetical allocations under 
the plan. Paragraph (c)(3)(iii)(C) of this section requires the annual 
comparison of hypothetical allocations.
    (B) Uniform hypothetical allocation formula. To satisfy this 
paragraph (c)(3)(iii)(B), the plan's benefit formula must provide for 
hypothetical allocations for all employees in the plan for all plan 
years of amounts that would satisfy Sec. 1.401(a)(4)-2(b)(3) for each 
such plan year if the hypothetical allocations were the only allocations 
under a defined contribution plan for the employees for those plan 
years. Thus, the plan's benefit formula must provide for hypothetical 
allocations for all employees in the plan for all plan years that are 
the same percentage of plan year compensation or the same dollar amount. 
In determining whether the hypothetical allocations satisfy 
Sec. 1.401(a)(4)-2(b)(3), the only provisions of Sec. 1.401(a)(4)-
2(b)(5) that apply are Sec. 1.401(a)(4)-2(b)(5)(ii) (section 401(l) 
permitted disparity, (iii) (entry dates), (vi) (certain limits on 
allocations), and (vii) (dollar allocation per uniform unit of service). 
Thus, for example, the plan's benefit formula may take permitted 
disparity into account in a manner allowed under Sec. 1.401(l)-2 for 
defined contribution plans.
    (C) Modified general test. To satisfy this paragraph (c)(3)(iii)(C), 
the plan's benefit formula must provide for hypothetical allocations for 
all employees in the plan for the plan year that would satisfy the 
general test in Sec. 1.401(a)(4)-2(c) for the plan year, if the 
hypothetical allocations were the only allocations for the employees 
taken into account under Sec. 1.401(a)(4)-2(c)(2)(ii) under a defined 
contribution plan for the plan year. In determining whether the 
hypothetical allocations satisfy Sec. 1.401(a)(4)-2(c), the provisions 
of Sec. 1.401(a)(4)-2(c)(2)(iii) through (v) apply. Thus, for example, 
permitted disparity may be imputed under Sec. 1.401(a)(4)-2(c)(2)(iv) in 
accordance with the rules of Sec. 1.401(a)(4)-7(b) applicable to defined 
contribution plans.
    (iv) Interest adjustments to hypothetical allocations--(A) General 
rule. The plan benefit formula must provide that the dollar amount of 
the hypothetical allocation for each employee for a plan year is 
automatically adjusted using an interest rate that satisfies paragraph 
(c)(3)(iv)(B) of this section, compounded no less frequently than 
annually, for the period that begins with a date in the plan year and 
that ends at normal retirement age. This requirement is not satisfied if 
any portion of the interest adjustments to a

[[Page 148]]

hypothetical allocation are contingent on the employee's satisfaction of 
any requirement. Thus, for example, the interest adjustments to a 
hypothetical allocation must be provided through normal retirement age, 
even though the employee terminates employment or commences benefits 
before that age.
    (B) Requirements with respect to interest rates. The interest rate 
must be a single interest rate specified in the plan that is the same 
for all employees in the plan for all plan years. The interest rate must 
be either a standard interest rate or a variable interest rate. If the 
interest rate is a variable interest rate, it must satisfy paragraph 
(c)(3)(iv)(C) of this section.
    (C) Variable interest rates--(1) General rule. The plan must specify 
the variable interest rate, the method for determining the current value 
of the variable interest rate, and the period (not to exceed 1 year) for 
which the current value of the variable interest rate applies. 
Permissible variable interest rates are listed in paragraph 
(c)(3)(iv)(C)(2) of this section. Permissible methods for determining 
the current value of the variable interest rate are provided in 
paragraph (c)(3)(iv)(C)(3) of this section.
    (2) Permissible variable interest rates. The variable interest rate 
specified in the plan must be one of the following--
    (i) The rate on 3-month Treasury Bills,
    (ii) The rate on 6-month Treasury Bills,
    (iii) The rate on 1-year Treasury Bills,
    (iv) The yield on 1-year Treasury Constant Maturities,
    (v) The yield on 2-year Treasury Constant Maturities,
    (vi) The yield on 5-year Treasury Constant Maturities,
    (vii) The yield on 10-year Treasury Constant Maturities,
    (viii) The yield on 30-year Treasury Constant Maturities, or
    (ix) The single interest rate such that, as of a single age 
specified in the plan, the actuarial present value of a deferred 
straight life annuity of an amount commencing at the normal retirement 
age under the plan, calculated using that interest rate and a standard 
mortality table but assuming no mortality before normal retirement age, 
is equal to the actuarial present value, as of the single age specified 
in the plan, of the same annuity calculated using the section 417(e) 
rates applicable to distributions in excess of $25,000 (determined under 
Sec. 1.417(e)-1(d)), and the same mortality assumptions.
    (3) Current value of variable interest rate. The current value of 
the variable interest rate that applies for a period must be either the 
value of the variable interest rate determined as of a specified date in 
the period or the immediately preceding period, or the average of the 
values of the variable interest rate as of two or more specified dates 
during the current period or the immediately preceding period. The value 
as of a date of the rate on a Treasury Bill is the average auction rate 
for the week or month in which the date falls, as reported in the 
Federal Reserve Bulletin. The value as of a date of the yield on a 
Treasury Constant Maturity is the average yield for the week, month, or 
year in which the date falls, as reported in the Federal Reserve 
Bulletin. (The Federal Reserve Bulletin is published by the Board of 
Governors of the Federal Reserve System and is available from 
Publication Services, Mail Stop 138, Board of Governors of the Federal 
Reserve System, Washington DC 20551.) The plan may limit the current 
value of the variable interest rate to a maximum (not less than the 
highest standard interest rate), or a minimum (not more than the lowest 
standard interest rate), or both.
    (v) Hypothetical account--(A) Current value of hypothetical account. 
As of any date, the current value of an employee's hypothetical account 
must equal the sum of all hypothetical allocations and the respective 
interest adjustments to each such hypothetical allocation provided 
through that date for the employee under the plan's benefit formula 
(without regard to any interest adjustments provided under the plan's 
benefit formula for periods after that date).
    (B) Value of hypothetical account as of normal retirement age. Under 
paragraph (c)(3)(vi) of this section, the value of an employee's 
hypothetical account must be determined as of normal retirement

[[Page 149]]

age in order to determine the employee's accrued benefit as of any date 
at or before normal retirement age. As of any date at or before normal 
retirement age, the value of an employee's hypothetical account as of 
normal retirement age must equal the sum of each hypothetical allocation 
provided through that date for the employee under the plan's benefit 
formula, plus the interest adjustments provided through normal 
retirement age on each of those hypothetical allocations for the 
employee under the plan's benefit formula (without regard to any 
hypothetical allocations that might be provided after that date under 
the plan's benefit formula). If the interest rate specified in the plan 
is a variable interest rate, the plan must specify that the 
determination in the preceding sentence is made by assuming that the 
current value of the variable interest rate for all future periods is 
either the current value of the variable interest rate for the current 
period or the average of the current values of the variable interest 
rate for the current period and one or more periods immediately 
preceding the current period (not to exceed 5 years in the aggregate).
    (vi) Determination of accrued benefit--(A) Definition of accrued 
benefit. The plan must provide that at any date at or before normal 
retirement age the accrued benefit (within the meaning of section 
411(a)(7)(A)(i)) of each employee in the plan is an annuity commencing 
at normal retirement age that is the actuarial equivalent of the 
employee's hypothetical account as of normal retirement age (as 
determined under paragraph (c)(3)(v)(B) of this section). The separate 
benefit that each employee accrues for a plan year is an annuity that is 
the actuarial equivalent of the employee's hypothetical allocation for 
that plan year, including the automatic adjustments for interest through 
normal retirement age required under paragraph (c)(3)(iv) of this 
section.
    (B) Normal form of benefit. The annuity specified in paragraph 
(c)(3)(vi)(A) of this section must provide an annual benefit payable in 
the same form at the same uniform normal retirement age for all 
employees in the plan. The annual benefit must be the normal retirement 
benefit under the plan (within the meaning of section 411(a)(9)) under 
the plan.
    (C) Determination of actuarial equivalence. For purposes of this 
paragraph (c)(3)(vi) and paragraph (c)(3)(ix) of this section, actuarial 
equivalence must be determined using a standard mortality table and 
either a standard interest rate or the interest rate specified in the 
plan for making interest adjustments to hypothetical allocations. If the 
interest rate used is the interest rate specified in the plan, and that 
rate is a variable interest rate, the assumed value of the variable 
interest rate for all future periods must be the same value that would 
be assumed for purposes of paragraph (c)(3)(v)(B) of this section. The 
same actuarial assumptions must be used for all employees in the plan.
    (D) Effect of section 415 and 416 requirements. A plan does not fail 
to satisfy this paragraph (c)(3)(vi) merely because the accrued benefits 
under the plan are limited by section 415, or merely because the accrued 
benefits under the plan are the greater of the accrued benefits 
otherwise determined under the plan and the minimum benefit described in 
section 416(c)(1) (regardless of whether the plan is top-heavy).
    (vii) Optional forms of benefit--(A) In general. The plan must 
satisfy the uniform subsidies requirement of Sec. 1.401(a)(4)-
3(b)(2)(iv) with respect to all subsidized optional forms of benefit.
    (B) Limitation on subsidies. Unless hypothetical allocations are 
determined under a uniform hypothetical allocation formula that 
satisfies paragraph (c)(3)(iii)(B) of this section, the actuarial 
present value of any QJSA provided under the plan must not be greater 
than the single sum distribution to the employee that would satisfy 
paragraph (c)(3)(vii)(C) of this section assuming that it was 
distributed to the employee on the date of commencement of the QJSA.
    (C) Distributions subject to section 417(e). Except as otherwise 
required under section 415(b), if the plan provides for a distribution 
alternative that is subject to the interest rate restrictions under 
section 417(e), the actuarial present value of the benefit

[[Page 150]]

paid to an employee under the distribution alternative must equal the 
nonforfeitable percentage (determined under the plan's vesting schedule) 
of the greater of the following two amounts--
    (1) The current value of the employee's hypothetical account as of 
the date the distribution commences, calculated in accordance with 
paragraph (c)(3)(v)(A) of this section.
    (2) The actuarial present value (calculated in accordance with 
Sec. 1.417(e)-1(d)) of the employee's accrued benefit.
    (D) Determination of actuarial present value. For purposes of this 
paragraph (c)(3)(vii), actuarial present value must be determined using 
a reasonable interest rate and mortality table. A standard interest rate 
and a standard mortality table are considered reasonable for this 
purpose.
    (viii) Past service credit. The benefit formula under the plan may 
not provide for hypothetical allocations in the curent plan year that 
are attributable to years of service before the current plan year, 
unless each of the following requirements is satisfied--
    (A) The years of past service credit are granted on a uniform basis 
to all current employees in the plan.
    (B) Hypothetical allocations for the current plan year are 
determined under a uniform hypothetical allocation formula that 
satisfies paragraph (c)(3)(iii)(B) of this section.
    (C) The hypothetical allocations attributable to the years of past 
service would have satisfied the uniform hypothetical allocation formula 
requirement of paragraph (c)(3)(iii)(B) of this section, and the 
interest adjustments to those hypothetical allocations would have 
satisfied paragraph (c)(3)(iv)(A) of this section, if the plan provision 
granting past service had been in effect for the entire period for which 
years of past service are granted to any employee. In order to satisfy 
this requirement, the hypothetical allocation attributable to a year of 
past service must be adjusted for interest in accordance with paragraph 
(c)(3)(iv) of this section for the period (including the retroactive 
period) beginning with the year of past service to which the 
hypothetical allocation is attributable and ending at normal retirement 
age. If the interest rate specified in the plan is a variable interest 
rate, the interest adjustments for the period prior to the current plan 
year either must be based on the current value of the variable interest 
rate for the period in which the grant of past service first becomes 
effective or must be reconstructed based on the then current value of 
the variable interest rate that would have applied during each prior 
period.
    (ix) Employees beyond normal retirement age. In the case of an 
employee who commences receipt of benefits after normal retirement age, 
the plan must provide that interest adjustments continue to be made to 
an employee's hypothetical account until the employee's benefit 
commencement date. In the case of an employee described in the previous 
sentence, the employee's accrued benefit is defined as an annuity that 
is the actuarial equivalent of the employee's hypothetical account 
determined in accordance with paragraph (c)(3)(v)(A) of this section as 
of the date of benefit commencement.
    (x) Additional uniformity requirements. In addition to any 
uniformity requirements provided elsewhere in this paragraph (c)(3), the 
plan must satisfy the uniformity requirements in Sec. 1.401(a)(4)-
3(b)(2)(v) (uniform vesting and service requirements) and (vi) (no 
employee contributions). A plan does not fail to satisfy the uniformity 
requirements of this paragraph (c)(3)(x) or any other uniformity 
requirement provided in this paragraph (c)(3) merely because the plan 
contains one or more of the provisions described in Sec. 1.401(a)(4)-
3(b)(8)(iv) (prior vesting schedules), (v) (certain conditions on 
accruals), or (xi) (multiple definitions of service).
    (xi) Changes in benefit formula, allocation formula, or interest 
rates. A plan does not fail to satisfy this paragraph (c)(3) merely 
because the plan is amended to change the benefit formula, hypothetical 
allocation formula, or the interest rate used to adjust hypothetical 
allocations for plan years after a fresh-start date, provided that the 
accrued benefits for plan years beginning after the fresh-start date are 
determined in accordance with Sec. 1.401(a)(4)-13(c), as modified by 
Sec. 1.401(a)(4)-13(f).

[[Page 151]]

    (d) Safe-harbor testing method for defined benefit plans that are 
part of a floor-offset arrangement--(1) General rule.  A defined benefit 
plan that is part of a floor-offset arrangement is deemed to satisfy the 
nondiscriminatory amount requirement of Sec. 1.401(a)(4)-1(b)(2) if all 
of the following requirements are satisfied:
    (i) Under the floor-offset arrangement, the accrued benefit (as 
defined in section 411(a)(7)(A)(i)) that would otherwise be provided to 
an employee under the defined benefit plan must be reduced solely by the 
actuarial equivalent of all or part of the employee's account balance 
attributable to employer contributions under a defined contribution plan 
maintained by the same employer (plus the actuarial equivalent of all or 
part of any prior distributions from that portion of the account 
balance). If any portion of the benefit that is being offset is 
nonforfeitable, that portion may be offset only by a benefit (or portion 
of a benefit) that is also nonforfeitable. In determining the actuarial 
equivalent of amounts provided under the defined contribution plan, an 
interest rate no higher than the highest standard interest rate must be 
used, and no mortality may be assumed in determining the actuarial 
equivalent of any prior distributions from the defined contribution plan 
or for periods prior to the benefit commencement date under the defined 
benefit plan.
    (ii) The defined benefit plan may not be a contributory DB plan 
(unless it satisfies Sec. 1.401(a)(4)-6(b)(6)), and benefits under the 
defined benefit plan may not be reduced by any portion of the employee's 
account balance under the defined contribution plan (or prior 
distributions from that account) that are attributable to employee 
contributions.
    (iii) The defined benefit plan and the defined contribution plan 
must benefit the same employees.
    (iv) The offset under the defined benefit plan must be applied to 
all employees on the same terms.
    (v) All employees must have available to them under the defined 
contribution plan the same investment options and the same options with 
respect to the timing of preretirement distributions.
    (vi) The defined benefit plan must satisfy the uniformity 
requirements of Sec. 1.401(a)(4)-3(b)(2) and the unit credit safe harbor 
in Sec. 1.401(a)(4)-3(b)(3) without taking into account the offset 
described in paragraph (d)(1)(i) of this section (i.e., on a gross-
benefit basis), and the defined contribution plan must satisfy any of 
the tests in Sec. 1.401(a)(4)-2(b) or (c). Alternatively, the defined 
benefit plan must satisfy any of the tests in Sec. 1.401(a)(4)-3(b) or 
(c) without taking into account the offset described in paragraph 
(d)(1)(i) of this section, and the defined contribution plan must 
satisfy the uniform allocation safe harbor in Sec. 1.401(a)(4)-2(b)(2).
    (vii) The defined contribution plan may not be a section 401(k) plan 
or a section 401(m) plan.
    (2) Application of safe-harbor testing method to qualified offset 
arrangements. A defined benefit plan that is part of a qualified offset 
arrangement as defined in section 1116(f)(5) of the Tax Reform Act of 
1986, Public Law No. 99-514, is deemed to satisfy the requirements of 
paragraph (d)(1)(vi) and (vii) of this section, if the only defined 
contribution plans included in the qualified offset arrangement are 
section 401(k) plans, section 401(m) plans, or both, and the defined 
benefit plan would satisfy the requirements of paragraph (d)(1)(vi) of 
this section assuming the elective contributions for each employee under 
the defined contribution plan were the same (either as a dollar amount 
or as a percentage of compensation) for all plan years since the 
establishment of the plan.

[T.D. 8360, 56 FR 47580, Sept. 19, 1991; 57 FR 4720, Feb. 7, 1992; 57 FR 
10952, 10953, Mar. 31, 1992, as amended by T.D. 8485, 58 FR 46807, Sept. 
3, 1993]



Sec. 1.401(a)(4)-9  Plan aggregation and restructuring.

    (a) Introduction. Two or more plans that are permissively aggregated 
and treated as a single plan under Secs. 1.410(b)-7(d) must also be 
treated as a single plan for purposes of section 401(a)(4). See 
Sec. 1.401(a)(4)-12 (definition of plan). An aggregated plan is 
generally tested under the same rules applicable to single plans. 
Paragraph (b) of this section, however, provides special rules for 
determining whether a

[[Page 152]]

plan that consists of one or more defined contribution plans and one or 
more defined benefit plans (a DB/DC plan) satisfies section 401(a)(4) 
with respect to the amount of employer-provided benefits and the 
availability of benefits, rights, and features. Paragraph (c) of this 
section provides rules allowing a plan to be treated as consisting of 
separate component plans and allowing the component plans to be tested 
separately under section 401(a)(4).
    (b) Application of nondiscrimination requirements to DB/DC plans--
(1) General rule. Except as provided in paragraph (b)(2) of this 
section, whether a DB/DC plan satisfies section 401(a)(4) is determined 
using the same rules applicable to a single plan. In addition, paragraph 
(b)(3) of this section provides an optional rule for demonstrating 
nondiscrimination in availability of benefits, rights, and features 
provided under a DB/DC plan.
    (2) Special rules for demonstrating nondiscrimination in amount of 
contributions or benefits--(i) Application of general tests. A DB/DC 
plan satisfies section 401(a)(4) with respect to the amount of 
contributions or benefits for a plan year if it would satisfy 
Sec. 1.401(a)(4)-3(c)(1) (without regard to the special rule in 
Sec. 1.401(a)(4)-3(c)(3)) for the plan year if an employee's aggregate 
normal and most valuable allocation rates, as determined under paragraph 
(b)(2)(ii)(A) of this section, or an employee's aggregate normal and 
most valuable accrual rates, as determined under paragraph (b)(2)(ii)(B) 
of this section, were substituted for each employee's normal and most 
valuable accrual rates, respectively, in the determination of rate 
groups.
    (ii) Determination of aggregate rates--(A) Aggregate allocation 
rates. An employee's aggregate normal and most valuable allocation rates 
are determined by treating all defined contribution plans that are part 
of the DB/DC plan as a single plan, and all defined benefit plans that 
are part of the DB/DC plan as a separate single plan; and determining an 
allocation rate and equivalent normal and most valuable allocation rates 
for the employee under each plan under Secs. 1.401(a)(4)-2(c)(2) and 
1.401(a)(4)-8(c)(2), respectively. The employee's aggregate normal 
allocation rate is the sum of the employee's allocation rate and 
equivalent normal allocation rate determined in this manner, and the 
employee's aggregate most valuable allocation rate is the sum of the 
employee's allocation rate and equivalent most valuable allocation rate 
determined in this manner.
    (B) Aggregate accrual rates. An employee's aggregate normal and most 
valuable accrual rates are determined by treating all defined 
contribution plans that are part of the DB/DC plan as a single plan, and 
all defined benefit plans that are part of the DB/DC plan as a separate 
single plan; and determining an equivalent accrual rate and normal and 
most valuable accrual rates for the employee under each plan under 
Secs. 1.401(a)(4)-8(b)(2) and 1.401(a)(4)-3(d), respectively. The 
employee's aggregate normal accrual rate is the sum of the employee's 
equivalent accrual rate and the normal accrual rate determined in this 
manner, and the employee's aggregate most valuable accrual rate is the 
sum of the employee's equivalent accrual rate and most valuable accrual 
rate determined in this manner.
    (iii) Options applied on an aggregate basis. The optional rules in 
Sec. 1.401(a)(4)-2(c)(2)(iv) (imputation of permitted disparity) and (v) 
(grouping of rates) may not be used to determine an employee's 
allocation or equivalent allocation rate, but may be applied to 
determine an employee's aggregate normal and most valuable allocation 
rates by substituting those rates (determined without regard to the 
option) for the employee's allocation rate in that section where 
appropriate. The optional rules in Sec. 1.401(a)(4)-3(d)(3) (e.g., 
imputation of permitted disparity) may not be used to determine an 
employee's accrual or equivalent accrual rate, but may be applied to 
determine an employee's aggregate normal and most valuable accrual rate 
by substituting those rates (determined without regard to the option) 
for the employee's normal and most valuable accrual rates, respectively, 
in that section where appropriate.
    (iv) Consistency rule--(A) General rule. Aggregate normal and most 
valuable allocation rates and aggregate normal

[[Page 153]]

and most valuable accrual rates must be determined in a consistent 
manner for all employees for the plan year. Thus, for example, the same 
measurement periods and interest rates must be used, and any available 
options must be applied consistently, if at all, for the entire DB/DC 
plan. Consequently, options that are not permitted to be used under 
Sec. 1.401(a)(4)-8 in cross-testing a defined contribution plan or a 
defined benefit plan (such as measurement periods that include future 
periods, non-standard interest rates, the option to disregard 
compensation adjustments described in Sec. 1.401(a)(4)-13(d), or the 
option to disregard plan provisions providing for actuarial increases 
after normal retirement age under Sec. 1.401(a)(4)-3(f)(3)) may not be 
used in testing a DB/DC plan on either a benefits or contributions 
basis, because their use would inevitably result in inconsistent 
determinations under the defined contribution and defined benefit 
portions of the plan.
    (B) Exception for section 415 alternative. A DB/DC plan does not 
fail to satisfy the consistency rule in paragraph (b)(2)(iv)(A) of this 
section merely because the limitations under section 415 are not taken 
into account, or may not be taken into account, under Sec. 1.401(a)(4)-
3(d)(2)(ii)(B) in determining employees' accrual or equivalent 
allocation rates under the defined benefit portion of the plan, even 
though those limitations are applied in determining employees' 
allocation and equivalent accrual rates under the defined contribution 
portion of the plan.
    (3) Optional rules for demonstrating nondiscrimination in 
availability of certain benefits, rights, and features--(i) Current 
availability. A DB/DC plan is deemed to satisfy Sec. 1.401(a)(4)-4(b)(1) 
with respect to the current availability of a benefit, right, or feature 
other than a single sum benefit, loan, ancillary benefit, or benefit 
commencement date (including the availability of in-service 
withdrawals), that is provided under only one type of plan (defined 
benefit or defined contribution) included in the DB/DC plan, if the 
benefit, right, or feature is currently available to all NHCEs in all 
plans of the same type as the plan under which it is provided.
    (ii) Effective availability. The fact that it may be difficult or 
impossible to provide a benefit, right, or feature described in 
paragraph (b)(3)(i) of this section under a plan of a different type 
than the plan or plans under which it is provided is one of the factors 
taken into account in determining whether the plan satisfies the 
effective availability requirement of Sec. 1.401(a)(4)-4(c)(1).
    (c) Plan restructuring--(1) General rule. A plan may be treated, in 
accordance with this paragraph (c), as consisting of two or more 
component plans for purposes of determining whether the plan satisfies 
section 401(a)(4). If each of the component plans of a plan satisfies 
all of the requirements of sections 401(a)(4) and 410(b) as if it were a 
separate plan, then the plan is treated as satisfying section 401(a)(4).
    (2) Identification of component plans. A plan may be restructured 
into component plans, each consisting of all the allocations, accruals, 
and other benefits, rights, and features provided to a selected group of 
employees. The employer may select the group of employees used for this 
purpose in any manner, and the composition of the groups may be changed 
from plan year to plan year. Every employee must be included in one and 
only one component plan under the same plan for a plan year.
    (3) Satisfaction of section 401(a)(4) by a component plan--(i) 
General rule. The rules applicable in determining whether a component 
plan satisfies section 401(a)(4) are the same as those applicable to a 
plan. Thus, for this purpose, any reference to a plan in section 
401(a)(4) and the regulations thereunder (other than this paragraph (c)) 
is interpreted as a reference to a component plan. As is true for a 
plan, whether a component plan satisfies the uniformity and other 
requirements applicable to safe harbor plans under Secs. 1.401(a)(4)-
2(b) and 1.401(a)(4)-3(b) is determined on a design basis. Thus, for 
example, plan provisions are not disregarded merely because they do not 
currently apply to employees in the component plan if they will apply to 
those employees as a result of the mere passage of time.
    (ii) Certain testing rules involving averaging. The safe harbor in 
Sec. 1.401(a)(4)-

[[Page 154]]

2(b)(3) for plans with uniform points allocation formulas are not 
available in testing (and thus cannot be satisfied by) contributions 
under a component plan. See Secs. 1.401(k)-1(b)(3)(iii) and 1.401(m)-
1(b)(3)(iii) for rules regarding the inapplicability of restructuring to 
section 401(k) plans and section 401(m) plans.
    (4) Satisfaction of section 410(b) by a component plan--(i) General 
rule. The rules applicable in determining whether a component plan 
satisfies section 410(b) are generally the same as those applicable to a 
plan. However, a component plan is deemed to satisfy the average benefit 
percentage test of Sec. 1.410(b)-5 if the plan of which it is a part 
satisfies Sec. 1.410(b)-5 (without regard to Sec. 1.410(b)-5(f)). In the 
case of a component plan that is part of a plan that relies on 
Sec. 1.410(b)-5(f) to satisfy the average benefit percentage test, the 
component plan is deemed to satisfy the average benefit percentage test 
only if the component plan separately satisfies Sec. 1.410(b)-5(f). In 
addition, all component plans of a plan are deemed to satisfy the 
average benefit percentage test if the plan makes an early retirement 
window benefit (within the meaning of Sec. 1.401(a)(4)-3(f)(4)(iii)) 
currently available (within the meaning of Sec. 1.401(a)(4)-
3(f)(4)(ii)(A)) to a group of employees that satisfies section 410(b) 
(without regard to the average benefit percentage test), and if it would 
not be necessary for the plan or any rate group or component plan of the 
plan to satisfy that test in order for the plan to satisfy sections 
401(a)(4) and 410(b) in the absence of the early retirement window 
benefit.
    (ii) Relationship to satisfaction of section 410(b) by the plan. 
Satisfaction of section 410(b) by a component plan is relevant solely 
for purposes of determining whether the plan of which it is a part 
satisfies section 401(a)(4), and not for purposes of determining whether 
the plan satisfies section 410(b) itself. The plan must still 
independently satisfy section 410(b) in order to be a qualified plan. 
Similarly, satisfaction of section 410(b) by a plan is relevant solely 
for purposes of determining whether the plan, and not the component 
plan, satisfies section 410(b). Thus, for example, a component plan that 
does not satisfy the ratio percentage test of Sec. 1.410(b)-2(b)(2) must 
still satisfy the average benefit test of Sec. 1.410(b)-2(b)(3), even 
though the plan of which it is a part satisfies the ratio percentage 
test.
    (5) Effect of restructuring under other sections. The restructuring 
rules provided in this paragraph (c) apply solely for purposes of 
sections 401(a)(4) and 401(l), and those portions of sections 410(b), 
414(s), and any other provisions that are specifically applicable in 
determining whether the requirements of section 401(a)(4) are satisfied. 
Thus, for example, a component plan is not treated as a separate plan 
under section 401(a)(26).
    (6) Examples. The following examples illustrate the rules in this 
paragraph (c):

    Example 1. Employer X maintains a defined benefit plan. The plan 
provides a normal retirement benefit equal to 1.0 percent of average 
annual compensation times years of service to employees at Plant S, and 
1.5 percent of average annual compensation times years of service to 
employees at Plant T. Under paragraph (c)(2) of this section, the plan 
may be treated as consisting of two component defined benefit plans, one 
providing retirement benefits equal to 1.0 percent of average annual 
compensation times years of service to the employees at Plant S, and 
another providing benefits equal to 1.5 percent of average annual 
compensation times years of service to employees at Plant T. If each 
component plan satisfies sections 401(a)(4) and 410(b) as if it were a 
separate plan under the rules of this paragraph (c), then the entire 
plan satisfies section 401(a)(4).
    Example 2. (a) Employer Y maintains Plan A, a defined benefit plan, 
for its Employees M, N, O, P, Q, and R. Plan A provides benefits under a 
uniform formula that satisfies the requirements of Sec. 1.401(a)(4)-3 
(b)(2) and (b)(3) before it is amended on February 14, 1994. The 
amendment provides an early retirement window benefit that is a 
subsidized optional form of benefit under Sec. 1.401(a)(4)-3(b)(2)(iii) 
and that is available on the same terms to all employees who satisfy the 
eligibility requirements for the window. The early retirement window 
benefit is available only to employees who retire between June 1, 1994, 
and November 30, 1994.
    (b) Assume that Employees M, N, and O will be eligible to receive 
the window benefit

[[Page 155]]

by the end of the window period and Employees P, Q, and R will not. 
Because substantially all employees will not satisfy the eligibility 
requirements for the early retirement window benefit by the close of the 
early retirement window benefit period, Plan A fails to satisfy the 
uniform subsidies requirement of Sec. 1.401(a)(4)-3(b)(2)(iii). See 
Sec. 1.401(a)(4)-3(b)(2)(vi), Example 6.
    (c) Under paragraph (c)(2) of this section, Employees M, N, O, P, Q, 
and R may be grouped into two component plans, one consisting of 
Employees M, N, and O, and all their accruals and other benefits, 
rights, and features under the plan (including the early retirement 
window benefit), and another consisting of Employees P, Q, and R, and 
all their accruals and other benefits, rights, and features under the 
plan. Each of the component plans identified in this manner satisfies 
the uniform subsidies requirement of Sec. 1.401(a)(4)-3(b)(2)(iii), and 
thus satisfies Sec. 1.401(a)(4)-3(b). The entire plan satisfies section 
401(a)(4) under the rules of this paragraph (c), if each of these 
component plans also satisfies section 410(b) as if it were a separate 
plan (including, if applicable, the reasonable classification 
requirement of Sec. 1.410(b)-4(b), and taking into account the special 
rule of paragraph (c)(4)(i) of this section that forgives the average 
benefit percentage test in certain situations in which the average 
benefit percentage test would be required solely as a result of the 
early retirement window benefit).
    Example 3. (a) Employer Z maintains Plan B, a defined benefit plan 
with a benefit formula that provides two percent of average annual 
compensation for each year of service up to 20 to each employee. Assume 
that Plan B would satisfy the fractional accrual rule safe harbor in 
Sec. 1.401(a)(4)-3(b)(4), except that some employees accrue a portion of 
their normal retirement benefit in the current plan year that is more 
than one-third larger than the portion of the same benefit accrued by 
other employees for the current plan year, and the plan therefore fails 
to satisfy the one-third-larger requirement of Sec. 1.401(a)(4)-
3(b)(4)(i)(C)(1).
    (b) Employer Z restructures Plan B into two plans, one covering 
employees with 30 years or less of service at normal retirement age, and 
the other covering all other employees. Each component plan would 
separately satisfy the one-third-larger requirement of Sec. 1.401(a)(4)-
3(b)(4)(i)(C)(1) if the only employees taken into account were those 
employees included in the component plan in the current plan year. Under 
paragraph (c)(3)(i) of this section and Sec. 1.401(a)(4)-
3(b)(4)(i)(C)(1), however, the component plans do not satisfy the one-
third-larger requirement because the safe harbor determination is made 
taking into account the effect of the plan benefit formula on any 
potential employee in the component plan (other than employees with more 
than 33 years of service at normal retirement age), and not just those 
employees included in the component plan in the current plan year.

[T.D. 8485, 58 FR 46810, Sept. 3, 1993]



Sec. 1.401(a)(4)-10  Testing of former employees.

    (a) Introduction. This section provides rules for determining 
whether a plan satisfies the nondiscriminatory amount and 
nondiscriminatory availability requirements of Sec. 1.401(a)(4)-1(b)(2) 
and (3), respectively, with respect to former employees. Generally, this 
section is relevant only in the case of benefits provided through an 
amendment to the plan effective in the current plan year. See the 
definitions of employee and former employee in Sec. 1.401(a)(4)-12.
    (b) Nondiscrimination in amount of contributions or benefits--(1) 
General rule. A plan satisfies Sec. 1.401(a)(4)-1(b)(2) with respect to 
the amount of contributions or benefits provided to former employees if, 
under all of the relevant facts and circumstances, the amount of 
contributions or benefits provided to former employees does not 
discriminate significantly in favor of former HCEs. For this purpose, 
contributions or benefits provided to former employees includes all 
contributions or benefits provided to former employees or, at the 
employer's option, only those contributions or benefits arising out of 
the amendment providing the contributions or benefits. A plan under 
which no former employee currently benefits (within the meaning of 
Sec. 1.410(b)-3(b)) is deemed to satisfy this paragraph (b).
    (2) Permitted disparity. Section 401(l) and Sec. 1.401(a)(4)-7 
generally apply to benefits provided to former employees in the same 
manner as those provisions apply to employees. Thus, for example, for 
purposes of determining a former employee's cumulative permitted 
disparity limit, the sum of the former employee's total annual disparity 
fractions (within the meaning of Sec. 1.401(l)-5) as an employee 
continues to be taken into account. However, the permitted disparity 
rate applicable to a former employee is determined under Sec. 1.401(l)-
3(e) as of the age the former employee commenced receipt of benefits, 
not as

[[Page 156]]

of the date the employee receives the accrual for the current plan year.
    (3) Examples. The following examples illustrate the rules in this 
paragraph (b):

    Example 1. Employer X maintains a section 401(l) plan, Plan A, that 
uses maximum permitted disparity. Plan A is amended to increase the 
benefits of all former employees in pay status. The percentage increase 
for each former employee is reasonably comparable to the adjustment in 
social security benefits under section 215(i)(2)(A) of the Social 
Security Act since the former employee commenced receipt of benefits. 
Plan A does not fail to satisfy this paragraph (b) merely because of the 
amendment.
    Example 2. The facts are the same as in Example 1, except that the 
amendment provides an across-the-board 20 percent increase in benefits 
for all former employees in pay status. The cost of living has increased 
at an average rate of three percent in the two years preceding the 
amendment, and some HCEs have retired and become former HCEs during that 
period. Because this amendment increases the disparity in the plan 
formula beyond the maximum permitted disparity adjusted for any 
reasonable approximation of the increase in the cost of living since the 
HCEs retired, Plan A discriminates significantly in favor of former 
HCEs, and thus does not satisfy this paragraph (b).
    Example 3. The facts are the same as in Example 1, except that Plan 
A is only amended to increase the benefits of former employees in pay 
status who terminated employment with Employer X after attaining early 
retirement age. The determination of whether the amendment causes Plan A 
to fail to satisfy this paragraph (b) must take into account the 
relative numbers of former HCEs and former NHCEs who have terminated 
employment with Employer X after attaining early retirement age.

    (c) Nondiscrimination in availability of benefits, rights, or 
features. A plan satisfies section 401(a)(4) with respect to the 
availability of benefits, rights, and features provided to former 
employees if any change in the availability of any benefit, right, or 
feature to any former employee is applied in a manner that, under all of 
the relevant facts and circumstances, does not discriminate 
significantly in favor of former HCEs. For purposes of demonstrating 
that a plan satisfies section 401(a)(4) with respect to the availability 
of loans provided to former employees, an employer may treat former 
employees who are parties in interest within the meaning of section 
3(14) of the Employee Retirement Income Security Act of 1974 as 
employees.

[T.D. 8485, 58 FR 46812, Sept. 3, 1993]



Sec. 1.401(a)(4)-11  Additional rules.

    (a) Introduction. This section provides additional rules for 
determining whether a plan satisfies section 401(a)(4). Paragraph (b) of 
this section provides rules for the treatment of the portion of an 
employee's accrued benefit or account balance that is attributable to 
rollovers, transfers between plans, and employee buybacks. Paragraph (c) 
of this section provides rules regarding vesting. Paragraph (d) of this 
section provides rules regarding service crediting. Paragraph (e) of 
this section, regarding family aggregation, and paragraph (f) of this 
section, regarding governmental plans, are reserved. Paragraph (g) of 
this section provides rules regarding the extent to which corrective 
amendments may be made for purposes of section 401(a).
    (b) Rollovers, transfers, and buybacks--(1) Rollovers and elective 
transfers. The portion of an employee's accrued benefit or account 
balance under a plan that is attributable to rollover (including direct 
rollover) contributions to the plan that are described in section 
402(c), 402(e)(6), 403(a)(4), 403(a)(5), or 408(d)(3), or elective 
transfers to the plan that are described in Sec. 1.411(d)-4, Q&A-3(b), 
is not taken into account in determining whether the plan satisfies the 
nondiscriminatory amount requirement of Sec. 1.401(a)(4)-1(b)(2).
    (2) Other transfers. [Reserved]
    (3) Employee buybacks--(i) Rehired employee buyback of previous 
service. An employee's repayment to a plan of a prior distribution from 
the plan (including reasonable interest from the time of the 
distribution) that results in the restoration of the employee's accrued 
benefit under the plan (or the service associated with that accrued 
benefit) that would otherwise be disregarded in determining the 
employee's accrued benefit in accordance with section 411 on account of 
the distribution is not treated as an employee contribution for purposes 
of Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13.
    (ii) Make-up of missed employee contributions. If a contributory DB 
plan gives all employees who did not make

[[Page 157]]

employee contributions for a prior period the right to make the missed 
contributions at a later date (including reasonable interest from the 
time of the missed contributions) and, once the contributions have been 
made, determines benefits under the plan by treating the employee 
contributions (excluding the interest) as if they were actually made 
during that prior period, then those contributions must satisfy 
Sec. 1.401(a)(4)-6(c) as if they were employee contributions actually 
made during that prior period. Thus, for example, Sec. 1.401(a)(4)-
6(c)(2) is not satisfied for the current plan year if the employee 
contribution rate (within the meaning of Sec. 1.401(a)(4)-6(b)(2)(ii)(A) 
but determined without regard to the interest) for the employees making 
up missed contributions is different than the employee contribution rate 
applicable to other employees during the prior period. The rule in this 
paragraph (b)(3)(ii) may be extended to employees who did not make 
employee contributions for a period of service that is or would 
otherwise have been credited under the plan and that preceded their 
participation in the plan.
    (c) Vesting--(1) General rule. A plan satisfies this paragraph (c) 
if the manner in which employees vest in their accrued benefits under 
the plan does not discriminate in favor of HCEs. Whether the manner in 
which employees vest in their accrued benefits under a plan 
discriminates in favor of HCEs is determined under this paragraph (c) 
based on all of the relevant facts and circumstances, taking into 
account any relevant provisions of sections 401(a)(5)(E), 411(a)(10), 
411(d)(1), 411(d)(2), 411(d)(3), 411(e), and 420(c)(2), and taking into 
account any plan provisions that affect the nonforfeitability of 
employees' accrued benefits (e.g., plan provisions regarding suspension 
of benefits permitted under section 411(a)(3)(B)), other than the method 
of crediting years of service for purposes of applying the vesting 
schedule provided in the plan.
    (2) Deemed equivalence of statutory vesting schedules. For purposes 
of this paragraph (c), the manner in which employees vest in their 
accrued benefits under the vesting schedules in section 411(a)(2) (A) 
and (B) are treated as equivalent to one another, and the manner in 
which employees vest in their accrued benefits under the vesting 
schedules in section 416(b)(1) (A) and (B) are treated as equivalent to 
one another.
    (3) Safe harbor for vesting schedules. The manner in which employees 
vest in their accrued benefits under a plan is deemed not to 
discriminate in favor of HCEs if each combination of plan provisions 
that affect the nonforfeitability of any employee's accrued benefit 
would satisfy the nondiscriminatory availability requirements of 
Sec. 1.401(a)(4)-4 if that combination were an other right or feature.
    (4) Examples. The following examples illustrate the rules in this 
paragraph (c):

    Example 1. Plan A provides the six-year graded vesting schedule 
described in section 416(b)(1)(B). In 1996, Plan A is amended to provide 
the five-year vesting schedule described in section 411(a)(2)(A). To 
comply with section 411(a)(10)(B), the plan amendment also provides that 
all employees with at least three years of service may elect to retain 
the prior vesting schedule. The manner in which employees vest in their 
accrued benefits under Plan A does not discriminate in favor of HCEs 
merely because the prior vesting schedule continues to apply to the 
accrued benefits of electing employees, even if, at the time of the 
election or in future years, the prior vesting schedule applies only to 
a group of employees that does not satisfy section 410(b).
    Example 2. The facts are the same as in Example 1, except that, for 
administrative convenience in complying with section 411(a)(10)(B), the 
plan amendment automatically provides all employees employed on the date 
of the amendment with the higher of the nonforfeitable percentages 
determined under either schedule. The manner in which employees vest in 
their accrued benefits under Plan A does not discriminate in favor of 
HCEs merely because, for administrative convenience in complying with 
section 411(a)(10), the amendment exceeds the requirements of section 
411(a)(10). The result would be the same if the plan amendment 
automatically provided the higher of the nonforfeitable percentages only 
to those employees with at least three years of service.
    Example 3. (a) Employer Y maintains Plan B covering all of its 
employees. On January 1, 1996, Employer Y sells Division M to Employer 
Z, and all of the employees in Division M become employees of Employer 
Z. Employer Y obtains a determination letter that the resulting 
cessation of participation by these employees in Plan B constitutes a

[[Page 158]]

partial termination. Therefore, in order to satisfy section 411(d)(3), 
Plan B fully vests the accrued benefit of each of the employees of 
Division M whose participation in Plan B ceased as a result of the sale 
on January 1, 1996.
    (b) The manner in which employees vest in their accrued benefits 
under Plan B does not discriminate in favor of HCEs merely because, in 
order to satisfy section 411(d)(3), the accrued benefits of all 
employees affected by the partial termination become fully vested. This 
is true even if the affected group of employees does not satisfy section 
410(b).
    Example 4. (a) The facts are the same as in Example 3, except that 
Employer Y does not obtain a determination letter that the sale of 
Division M to Employer Z will cause a partial termination. Instead, 
based on its reasonable belief that the sale will cause a partial 
termination, and in order to ensure that Plan B will satisfy section 
411(d)(3), Employer Y amends Plan B to vest fully the accrued benefit on 
January 1, 1996 of each of the employees it reasonably believes to be an 
affected employee.
    (b) The manner in which employees vest in their accrued benefits 
under Plan B does not discriminate in favor of HCEs merely because, 
based on Employer Y's reasonable belief that the sale will cause a 
partial termination, Plan B is amended to vest fully the accrued 
benefits of each of the employees it reasonably believes to be an 
affected employee.

    (d) Service-crediting rules--(1) Overview--(i) In general. A defined 
benefit plan or a defined contribution plan does not satisfy this 
paragraph (d) with respect to the manner in which service is credited 
under the plan unless the plan satisfies paragraph (d)(2) of this 
section. Paragraph (d)(3) of this section provides rules for determining 
whether service other than actual service with the employer may be taken 
into account in determining whether a defined benefit plan or a defined 
contribution plan satisfies Sec. 1.401(a)(4)-1 (b)(2) or (b)(3). 
(However, for purposes of cross-testing a defined contribution plan, 
only years in which the employee benefited under the plan may be taken 
into account in determining equivalent accrual rates. See 
Sec. 1.401(a)(4)-8(b)(2)(i).) The rules of this paragraph (d) apply 
separately to service credited under a plan for each different purpose 
under the plan, including, but not limited to: application of the 
benefit formula (benefit service), application of the accrual method 
(accrual service), application of the vesting schedule (vesting 
service), entitlement to benefits, rights, and features (entitlement 
service), application of the requirements for eligibility to participate 
in the plan (eligibility service).
    (ii) Special rule for pre-effective date service. A plan is deemed 
to satisfy this paragraph (d) with respect to service credited for 
periods prior to the effective date applicable to the plan under 
Sec. 1.401(a)(4)-13 (a) or (b) under a plan provision adopted and in 
effect as of February 11, 1993 (and any such service may be taken into 
account for purposes of satisfying Sec. 1.401(a)(4)-1 (b)(2) or (b)(3)), 
if the plan satisfied the applicable nondiscrimination requirements with 
respect to the service that were in effect for all relevant periods 
prior to the applicable effective date.
    (2) Manner of crediting service--(i) General rule. A plan satisfies 
this paragraph (d)(2) if, on the basis of all of the relevant facts and 
circumstances, the manner in which employees' service is credited for 
all purposes under the plan does not discriminate in favor of HCEs.
    (ii) Equivalent service-crediting methods. For purposes of this 
paragraph (d)(2), a service-crediting method used for a specified 
purpose that is based on hours of service, as provided in 29 CFR 
2530.200b-2, and a service-crediting method used for the same purpose 
that is based on one of the equivalencies set forth in 29 CFR 2530.200b-
3, are treated as equivalent if the service-crediting methods are 
otherwise the same.
    (iii) Safe harbor for service-crediting. The manner in which service 
is credited under a plan for a specified purpose is deemed to satisfy 
this paragraph (d)(2) if each combination of service-crediting 
provisions applied for that purpose would satisfy the nondiscriminatory 
availability requirements of Sec. 1.401(a)(4)-4 if that combination were 
an other right or feature.
    (iv) Examples. The following examples illustrate the rules in this 
paragraph (d)(2):

    Example 1. (a) Plan A covers both salaried employees and hourly 
employees. All of the HCEs in Plan A are salaried employees. For 
administrative convenience, salaried employees in Plan A (none of whom 
are part-time) have their years of service calculated in accordance with 
the elapsed time provisions in Sec. 1.410(a)-7. Hourly employees in

[[Page 159]]

Plan A (most of whom are scheduled to work 2,000 hours in a year) have 
their hours of service calculated in accordance with 29 CFR 2530.200b-2 
and are credited with a year of service for each plan year in which they 
complete 1,000 hours of service.
    (b) Plan A does not fail to satisfy this paragraph (d)(2) merely 
because different service-crediting provisions are applied to salaried 
and hourly employees for administrative convenience. The service-
crediting provisions for hourly employees in Plan A are reasonably 
comparable to the service-crediting provisions for salaried employees. 
This is because the amount of service credited to hourly employees who 
complete fewer than 1,000 hours of service before termination of 
employment (i.e., quit, retirement, discharge, or death) during the plan 
year (and are treated less favorably than the salaried employees with 
the same period of employment during the plan year) is balanced by the 
amount of service credited to hourly employees who complete more than 
1,000 hours of service before termination of employment during the plan 
year (who are treated more favorably than the salaried employees with 
the same period of employment during the plan year).
    Example 2. (a) The facts are the same as in Example 1, except Plan A 
requires hourly employees to complete 2,000 hours of service in order to 
be credited with a full year of service, with a pro rata reduction for 
hourly employees who complete fewer than 2,000 hours of service.
    (b) Plan A does not fail to satisfy this paragraph (d)(2) merely 
because different service-crediting provisions are applied to salaried 
and hourly employees for administrative convenience. The service-
crediting provisions for hourly employees in Plan A are reasonably 
comparable to the service-crediting provisions for salaried employees. 
This is because the amount of service credited to hourly employees whose 
employment terminates (i.e., quit, retire, are discharged, or die) 
during the plan year is reasonably comparable to the amount of service 
credited to salaried employees whose employment is terminated during the 
plan year with the same period of employment during the plan year.


    (3) Service-crediting period--(i) Limitation on service taken into 
account--(A) General rule. Except as otherwise provided in this 
paragraph (d)(3), service for periods in which an employee does not 
perform services as an employee of the employer or in which the employee 
did not participate in the plan may not be taken into account in 
determining whether the plan satisfies Sec. 1.401(a)(4)-1 (b)(2) and 
(b)(3). In addition, in determining whether a plan satisfies 
Sec. 1.401(a)(4)-1 (b)(2) and (b)(3), no more than one year of service 
may be taken into account with respect to any 12-consecutive-month 
period (with adjustments for shorter periods, if appropriate) unless the 
additional service is required to be credited under section 410 or 411, 
whichever is applicable.
    (B) Past service. Notwithstanding paragraph (d)(3)(i)(A) of this 
section, service for periods in which an employee performed services as 
an employee of the employer and did not participate in a plan, but in 
which the employee would have participated in the plan but for the fact 
that the plan (or the plan amendment extending coverage to the employee) 
was not in existence during that period, may be taken into account in 
determining whether the plan satisfies Sec. 1.401(a)(4)-1 (b)(2) and 
(b)(3). This is because service for such periods generally would have 
been credited for the employee but for the timing of the plan 
establishment or amendment, and the timing of the plan establishment or 
amendment must satisfy Sec. 1.401(a)(4)-5(a).
    (C) Pre-participation and imputed service. Notwithstanding paragraph 
(d)(3)(i)(A) of this section, to the extent that a plan treats pre-
participation service and imputed service as actual service with the 
employer, such service may be taken into account in determining whether 
the plan satisfies Sec. 1.401(a)(4)-1 (b)(2) and (b)(3) if the service 
satisfies each of the requirements in paragraph (d)(3)(iii) of this 
section taking into account, in the case of imputed service, the 
additional rules in paragraph (d)(3)(iv) of this section.
    (D) Additional limitations on service-crediting in the case of 
certain offsets. Notwithstanding paragraphs (d)(3)(i) (B) and (C) of 
this section, if a plan credits benefit service or accrual service under 
paragraph (d)(3)(i) (B) or (C) of this section for a period before an 
employee becomes a participant in the plan, but offsets the benefits 
determined under the plan by benefits under another plan (whether or not 
qualified or terminated) that are attributable to the same period for 
which that service is credited, then that service may not be taken into 
account for purposes of

[[Page 160]]

determining whether the first plan satisfies Sec. 1.401(a)(4)-1 (b)(2) 
or (b)(3) unless the offset provision applies on the same basis to all 
similarly-situated employees (within the meaning of paragraph 
(d)(3)(iii)(A) of this section).
    (ii) Definitions--(A) Pre-participation service. For purposes of 
this section, pre-participation service includes all years of service 
credited under a plan for years of service with the employer or a prior 
employer for periods before the employee commenced or recommenced 
participation in the plan (other than past service described in 
paragraph (d)(3)(i)(B) of this section).
    (B) Imputed service. For purposes of this section, imputed service 
includes any service credited for periods after an employee has 
commenced participation in a plan while the employee is not performing 
services as an employee for the employer (including a period in which 
the employee performs services for another employer, e.g., a joint 
venture), or while the employee has a reduced work schedule and would 
not otherwise be credited with service at the level being credited under 
the general terms of the plan.
    (iii) Requirements for pre-participation and imputed service--(A) 
Provision applied to all similarly-situated employees--(1) General rule. 
A plan provision crediting pre-participation service or imputed service 
to any HCE must apply on the same terms to all similarly-situated NHCEs. 
Whether two employees are similarly situated for this purpose must be 
determined based on reasonable business criteria, generally taking into 
account only the circumstances resulting in the employees being covered 
under the plan or being granted imputed service and on the situation of 
the employees (e.g., the plan in which the employees benefit or the 
employer by which they are employed) during the period for which the 
pre-participation service or imputed service is credited. For example, 
employees who enter a plan as a result of a particular merger and who 
participated in the same plan of a prior employer are generally 
similarly situated. As another example, employees who are transferred to 
different joint ventures or different spun-off divisions are generally 
not similarly situated.
    (2) Examples. The following examples illustrate the rules in this 
paragraph (d)(3)(iii)(A):

    Example 1. Employer X maintains defined benefit Plans A and B and 
defined contribution Plan C. Plan A covers all employees who work at the 
headquarters of Employer X. Plan B covers some employees in Division M 
of Employer X, and Plan C covers the other employees of Division M. 
Plans B and C have not been aggregated for purposes of satisfying 
section 401(a)(4) or 410(b) for the period for which service is being 
credited. Plan A provides that, whenever an employee covered by Plan B 
transfers from Division M to the headquarters, the employee's service 
credited under Plan B is credited under Plan A, and the employee's 
benefit under Plan A is offset by the employee's benefit under Plan B. 
However, Plan A provides for no similar recognition of service or offset 
for employees covered by Plan C who transfer from Division M to the 
headquarters. Plan A does not fail to satisfy this paragraph 
(d)(3)(iii)(A) merely because it credits service for employees 
transferring from Plan B but not from Plan C, because it is reasonable 
to treat employees participating in different plans that have not been 
aggregated as not being similarly situated.
    Example 2. The facts are the same as in Example 1, except that 
Employer X acquires two trades or businesses from different employers. 
Employees of the acquired trades or businesses become employees of 
Division M and become covered by Plan B. In addition, Plan B is amended 
to credit service with one of the trades or businesses but not the 
other. Plan B does not fail to satisfy this paragraph (d)(3)(iii)(A) 
merely because it credits service for one acquired trade or business but 
not another, because it is reasonable to treat employees of one acquired 
trade or business as not similarly situated to employees of another 
acquired trade or business.

    (B) Legitimate business reason--(1) General rule. There must be a 
legitimate business reason, based on all of the relevant facts and 
circumstances, for a plan to credit imputed service or for a plan to 
credit pre-participation service for a period of service with another 
employer.
    (2) Relevant facts and circumstances when crediting service with 
another employer. The following are examples of relevant facts and 
circumstances for determining whether a legitimate business reason 
exists for a plan to credit pre-participation or imputed service for a 
period of service with another employer as service with the employer: 
whether one employer has a significant

[[Page 161]]

ownership, control, or similar interest in, or relationship with, the 
other employer (though not enough to cause the two employers to be 
treated as a single employer under section 414); whether the two 
employers share interrelated business operations; whether the employers 
maintain the same multiple-employer plan; whether the employers share 
similar attributes, such as operation in the same industry or the same 
geographic area; and whether the employees are an acquired group of 
employees or the employees became employed by the other employer in a 
transaction between the two employers that was a stock or asset 
acquisition, merger, or other similar transaction involving a change in 
the employer of the employees of a trade or business. Other factors may 
also be relevant for this purpose, such as the plan's treatment of 
service with other employers with which the employer has a similar 
relationship and the type of service being credited (e.g., vesting 
service as compared to benefit service or accrual service). A legitimate 
business reason is deemed to exist for a plan to credit military service 
as service with the employer.
    (3) Examples. The following examples illustrate the rules in this 
paragraph (d)(3)(iii)(B):

    Example 1. Twenty unrelated employers jointly sponsor a multiple-
employer plan that covers all employees of the employers. From time to 
time, employees transfer employment among the employers. There is a 
legitimate business reason for a disaggregated portion of the plan that 
benefits the employees of one of the employers to treat service with any 
of the other employers as service with the employer.
    Example 2. Employer X owns 20 percent of the outstanding stock of 
Employer Y. From time to time, employees transfer from Employer X to 
Employer Y at the request of Employer X. Employer X maintains defined 
benefit Plan A. Plan A provides that years of service include an 
employee's years of service with Employer Y. There is a legitimate 
business reason for Plan A to credit service with Employer Y because 
Employer X, through its 20-percent ownership interest, benefits from the 
service that the transferred employees provide to Employer Y.
    Example 3. Employer Z manufactures widgets and belongs to the 
National Widget Manufacturers' Association. From time to time, Employer 
Z hires employees from other widget manufacturers. Employer Z maintains 
a defined benefit plan, Plan B, which credits pre-participation service 
for periods of service with all other members of the Association located 
in the western half of the United States as service with Employer Z. 
There is a legitimate business reason for Plan B to treat service with 
other members of the Association as service with Employer Z.

    (C) No significant discrimination--(1) General rule. Based on all of 
the relevant facts and circumstances, a plan provision crediting pre-
participation or imputed service must not by design or in operation 
discriminate significantly in favor of HCEs.
    (2) Relevant facts and circumstances. The following are examples of 
relevant facts and circumstances for determining whether a plan 
provision crediting pre-participation service or imputed service 
discriminates significantly in favor of HCEs: whether the service credit 
does not duplicate benefits but merely makes an employee whole (i.e., 
prevents the employee from being disadvantaged with respect to benefits 
by a change in job or employer or provides the employee with benefits 
comparable to those of other employees); the degree of business ties 
between the current employer and the prior employer, such as the degree 
of ownership interest or other affiliation; the degree of excess 
coverage under section 410(b) of NHCEs for the plan crediting the 
service, taking into account employees who are credited with pre-
participation service; whether the other employer maintains a qualified 
plan for its employees; the existence of reciprocal service credit under 
other plans of the employer or the prior employer; the circumstances 
underlying the employee's transfer into the group of employees covered 
by the plan; the type of service being credited; and the relative number 
of employees other than five-percent owners or the most highly-paid HCEs 
of the employer (determined without regard to the one officer rule of 
section 414(q)(5)(B)) who are being credited with pre-participation 
service or imputed service. The relative number referred to in the last 
factor is determined taking into account all employees who have been 
over time, or are reasonably expected to be in the future, credited with 
such service.

[[Page 162]]

    (3) Examples. The following examples illustrate the rules in this 
paragraph (d)(3)(iii)(C). It is assumed that facts not described in an 
example do not, in the aggregate, suggest that the relevant plan 
provision either does or does not discriminate significantly in favor of 
HCEs.

    Example 1. (a) Employer U maintains defined benefit Plans A and B. 
Plan A covers all employees who work at the headquarters of Employer U. 
Plan B covers all employees of Division M of Employer U. Plan A provides 
that, whenever an employee transfers from Division M to the 
headquarters, the employee's service credited under Plan B is credited 
under Plan A, and the employee's benefit under Plan A is offset by the 
employee's benefit under Plan B. Employees, including a meaningful 
number of NHCEs, are periodically transferred from Division M to the 
headquarters of Employer U for bona fide business reasons.
    (b) The Plan A provision crediting service under Plan B does not 
discriminate significantly in favor of HCEs. The provision is designed 
only to prevent employees from being disadvantaged by being transferred 
from Division M to the headquarters, and a meaningful number of NHCEs 
can be expected to benefit from it.
    Example 2. (a) The facts are the same as in Example 1, except that 
the only employees transferred from Division M to the headquarters of 
Employer U are HCEs (but not the most highly-paid HCEs of Employer U).
    (b) Employer U determines that Plan A would have satisfied sections 
401(a)(4) and 410(b) for the period for which the transferred employees 
are being credited with pre-participation service had the employees 
participated in Plan A during that period. This determination is based 
on test results under sections 401(a)(4) and 410(b) for the current 
year, taking into account significant demographic changes over this 
period.
    (c) The Plan A provision crediting service under Plan B does not 
significantly discriminate in favor of HCEs in the current year. This 
conclusion is based on the fact that the circumstances underlying the 
transfers indicate that they were made for bona fide business reasons, 
that Plan A would have satisfied sections 401(a)(4) and 410(b) had the 
transferred employees participated in Plan A during the period for which 
the pre-participation service is credited, and that the transferred 
employees are not the most highly-paid HCEs of Employer U.
    Example 3. (a) The facts are the same as in Example 1, except that 
the only employee who is transferred from Division M to the headquarters 
of Employer U is Employee P, who is among the most highly-paid HCEs of 
Employer U. Plan A provides an unreduced early retirement benefit at age 
55 for employees with 20 years of service, but Plan B's early retirement 
benefits are not subsidized. Employee P is transferred to the 
headquarters with 20 years of service credited under Plan B and shortly 
before attainment of age 55. Employee P is expected to retire upon 
reaching age 55.
    (b) The Plan A provision crediting service under Plan B 
discriminates significantly in favor of HCEs in the year of the 
transfer. This is because the circumstances underlying this transfer 
(i.e., its occurrence shortly before Employee P's expected retirement 
and the fact that the transfer significantly increased Employee P's 
early retirement benefits) indicate that Employee P was transferred to 
the headquarters primarily to obtain the higher pension benefits 
provided under Plan A.
    (c) Because of this conclusion, the pre-participation service 
credited to Employee P cannot be taken into account in determining 
whether Plan A satisfies Sec. 1.401(a)(4)-1 (b)(2) and (b)(3). Thus, if 
Plan A credits the service, it cannot be a safe harbor plan because the 
benefit formula will take into account service that may not be taken 
into account under this paragraph (d)(3). In addition, Employee P's 
accrual rates under the general test in Sec. 1.401(a)(4)-3(c) are likely 
to be higher than those of other employees because, while the pre-
participation service may be used to determine Employee P's benefits 
under Plan A, the service must be disregarded in determining Employee 
P's testing service. Also, if Employee P's pre-participation service is 
used in determining Employee P's entitlement to a benefit, right, or 
feature under Plan A, the fact that the service must be disregarded in 
determining Employee P's entitlement service for purposes of 
Sec. 1.401(a)(4)-4 may cause the benefit, right, or feature to be 
treated as a separate benefit, right, or feature that is currently 
available only to Employee P.
    Example 4. (a) Employer V manufactures widgets and belongs to the 
National Widget Manufacturers' Association. Each member of the 
Association maintains a defined benefit plan that credits pre-
participation service for periods of service with other members and 
offsets benefits under the plan by benefits under the plans of the other 
members. Employer V maintains defined benefit Plan C. Employer V 
periodically hires employees from other widget manufacturers who are not 
among its most highly-paid HCEs. In 1997, however, the only employee 
hired by Employer V from another member of the Association is Employee 
Q, who is among Employer V's most highly-paid HCEs. Employee Q receives 
pre-participation service credit in accordance with the terms of Plan C. 
Some of the plans maintained by other members of the Association 
credited pre-participation service to NHCEs for the same period for

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which the pre-participation service is credited to Employee Q.
    (b) The provision of Plan C crediting pre-participation service with 
other members of the Association does not discriminate significantly in 
1997, despite the fact that the only employee who received pre-
participation service credit under the provision in that year was among 
the most highly-paid HCEs of Employer V. This conclusion is based on the 
relative number of employees other than Employer V's most highly-paid 
HCEs who have been credited in the past, or are reasonably expected to 
be credited in the future, with pre-participation service for periods of 
service with other members of the Association, and the fact that other 
employees who are NHCEs are being credited with pre-participation 
service under a reciprocal agreement.
    Example 5. Employer W owns 79 percent of the outstanding stock of 
Employer X. From time to time, employees transfer from Employer W to 
Employer X at the request of Employer W. The only employees who have 
ever been transferred are HCEs. Employer W maintains a defined benefit 
plan, Plan D, which credits employees transferred to Employer X with 
imputed benefit and accrual service while employed by Employer X. 
Employer X maintains no qualified plan. Plan D would fail either section 
401(a)(4) or section 410(b) in the current plan year if the individuals 
employed by Employer X were treated as employed by Employer W. In 
addition, Plan D would fail either section 401(a)(4) or section 410(b) 
in the current plan year if the portion of Plan D covering the 
transferred employees were treated as maintained by Employer X. The Plan 
D provision crediting imputed benefit and accrual service to employees 
transferred to Employer X significantly discriminates in favor of HCEs 
in the current plan year.
    Example 6. The facts are the same as in Example 5, except that Plan 
D credits the individuals who transfer to Employer X only with imputed 
vesting and entitlement service. The Plan D provision crediting imputed 
vesting and entitlement service to individuals transferred to Employer X 
does not significantly discriminate in favor of HCEs in the current plan 
year, because there is less potential for discrimination when the only 
types of service being imputed are vesting and entitlement service.

    (iv) Additional rules for imputed service--(A) Legitimate business 
reasons for crediting imputed service--(1) General rule. A legitimate 
business reason does not exist for a plan to impute service after an 
individual has permanently ceased to perform services as an employee 
(within the meaning of Sec. 1.410(b)-9) for the employer maintaining the 
plan, i.e., is not expected to resume performing services as an employee 
for the employer. The preceding sentence does not apply in the case of 
an individual who is not performing services for the employer because of 
disability or is performing services for another employer under an 
arrangement (such as a transfer of the employee to another employer) 
that provides some ongoing business benefit to the original employer. 
The first sentence in this paragraph (d)(3)(iv)(A)(1) also does not 
apply in the case of vesting and entitlement service if the employee is 
performing services for another employer that is being treated under the 
plan as actual service with the original employer.
    (2) Certain presumptions applicable. Whether an individual has 
permanently ceased to perform services as an employee for an employer is 
determined taking into account all of the relevant facts and 
circumstances. There is a rebuttable presumption for a period of up to 
two years that an individual who has ceased to perform services as an 
employee for an employer is nonetheless expected to resume performing 
services as an employee for the employer, if the employer continues to 
treat the individual as an employee for significant purposes unrelated 
to the plan. After two years, there is a rebuttable presumption that an 
individual who has ceased to perform services as an employee for the 
employer is not expected to resume performing services as an employee 
for the employer. The fact that an individual is absent to perform jury 
duty or military service automatically rebuts the latter presumption. 
Other evidence, such as the employer's layoff policy, the terms of an 
employment contract, or specific leave to pursue a degree requiring more 
than two years of study, may also rebut this presumption.
    (3) Imputed service for part-time employees. Rules similar to the 
rules in paragraph (d)(3)(iv)(A) (1) and (2) of this section apply in 
the case of an employee whose work hours are temporarily reduced and who 
therefore would normally be credited with service at a reduced rate, but 
who continues to be credited with service at the same rate

[[Page 164]]

as before the reduction (e.g., an employee who continues to be credited 
with service as if the employee were a full-time employee during a 
temporary change from a full-time to a part-time work schedule).
    (B) Additional factors for determining whether a provision crediting 
imputed service discriminates significantly. In addition to the factors 
described in paragraph (d)(3)(iii)(C)(2) of this section, relevant facts 
and circumstances for determining whether a plan provision crediting 
imputed service during a leave of absence or a period of reduced 
services discriminates significantly include any employer policies or 
practices that restrict the ability of employees to take leaves of 
absence or work temporarily on a part-time basis, respectively.
    (v) Satisfaction of other service-crediting rules. A plan does not 
fail to satisfy this paragraph (d)(3) merely because it credits service 
to the extent necessary to satisfy the service-crediting rules in 
section 410(a), 411(a), 413, or 414(a), Sec. 1.410(a)-7 (elapsed-time 
method of service-crediting) or 29 CFR 2530.200b-2 (regarding hours of 
service to be credited), whichever is applicable, or 29 CFR 
Sec. 2530.204-2(d) (regarding double proration of service and 
compensation).
    (e) Family aggregation rules. [Reserved]
    (f) Governmental plans. [Reserved]
    (g) Corrective amendments--(1) In general. A corrective amendment 
that satisfies the rules of this paragraph (g) is taken into account for 
purposes of satisfying certain section 401(a) requirements for a plan 
year, by treating the corrective amendment as if it were adopted and 
effective as of the first day of the plan year. These rules apply in 
addition to the rules of section 401(b). Paragraph (g)(2) of this 
section describes the scope of the corrective amendments that are 
permitted to be made. Paragraph (g)(3) of this section specifies the 
conditions under which a corrective amendment may be made. Paragraph 
(g)(4) of this section provides a rule prohibiting a corrective 
amendment from being taken into account to the extent that it does not 
have substance. Paragraph (g)(5) of this section discusses the effect of 
the corrective amendments permitted under this paragraph (g) under 
provisions other than section 401(a).
    (2) Scope of corrective amendments. For purposes of satisfying the 
minimum coverage requirements of section 410(b), the nondiscriminatory 
amount requirement of Sec. 1.401(a)(4)-1(b)(2), or the nondiscriminatory 
plan amendment requirement of Sec. 1.401(a)(4)-1(b)(4), a corrective 
amendment may retroactively increase accruals or allocations for 
employees who benefited under the plan during the plan year being 
corrected, or may grant accruals or allocations to individuals who did 
not benefit under the plan during the plan year being corrected. In 
addition, for purposes of satisfying the nondiscriminatory current 
availability requirement of Sec. 1.401(a)(4)-4(b) for benefits, rights, 
or features, a corrective amendment may make a benefit, right, or 
feature available to employees to whom it was previously not available. 
A corrective amendment may not, however, correct for a failure to 
incorporate the pre-termination restrictions of Sec. 1.401(a)(4)-5(b).
    (3) Conditions for corrective amendments--(i) In general. A 
corrective amendment is not taken into account prior to its adoption 
under this paragraph (g) unless it satisfies each of the requirements of 
paragraph (g)(3) (ii) through (vii) of this section, whichever are 
applicable. Thus, for example, if any of the applicable requirements are 
not satisfied, any additional accruals arising from an amendment adopted 
after the end of a plan year are not given retroactive effect and, thus, 
are tested in the plan year in which the amendment is adopted.
    (ii) Benefits not reduced. Except as permitted under paragraph 
(g)(3)(vi)(C)(2) of this section, the corrective amendment may not 
result in a reduction of an employee's benefits (including any benefit, 
right, or feature), determined based on the terms of the plan in effect 
immediately before the amendment.
    (iii) Amendment effective for all purposes. For purposes of 
determining an employee's rights and benefits under the plan, the 
corrective amendment must generally be effective as if the amendment had 
been made on the first

[[Page 165]]

day of the plan year being corrected. Thus, if the corrective amendment 
is made after the close of the plan year being corrected, an employee's 
allocations or accruals, along with the associated benefits, rights, and 
features, must be increased to the level at which they would have been 
had the amendment been in effect for the entire preceding plan year. 
Accordingly, such increases are taken into account for testing purposes 
as if the increases had actually occurred in the prior plan year. 
However, to the extent that an amendment makes a benefit, right, or 
feature available to a group of employees, the amendment does not fail 
to satisfy this paragraph (g)(3)(iii) merely because it is not effective 
prior to the date of adoption and, therefore, the benefit, right, or 
feature is not made currently available to those employees before that 
date.
    (iv) Time when amendment must be adopted and put into effect--(A) 
General rule. Any corrective amendment intended to apply to the 
preceding plan year must be adopted and implemented on or before the 
15th day of the 10th month after the close of the plan year in order to 
be taken into account for the preceding plan year.
    (B) Determination letter requested by employer or plan 
administrator. If, on or before the end of the period set forth in 
paragraph (g)(3)(iv)(A) of this section, the employer or plan 
administrator files a request pursuant to Sec. 601.201(o) of this 
chapter (Statement of Procedural Rules) for a determination letter on 
the amendment, the initial or continuing qualification of the plan, or 
the trust that is part of the plan, the period set forth in paragraph 
(g)(3)(iv)(A) of this section is extended in the same manner as provided 
for an extension of the remedial amendment period under Sec. 1.401(b)-
1(d)(3).
    (v) Corrective amendment for coverage or amounts testing--(A) 
Retroactive benefits must be provided to nondiscriminatory group. Except 
as provided in paragraph (g)(3)(v)(B) of this section, if the corrective 
amendment is adopted after the close of the plan year, the additional 
allocations or accruals for the preceding year resulting from the 
corrective amendment must separately satisfy section 401(a)(4) for the 
preceding plan year and must benefit a group of employees that 
separately satisfies section 410(b) (determined by applying the same 
rules as are applied in determining whether a component plan separately 
satisfies section 410(b) under Sec. 1.401(a)(4)-9(c)(4)). Thus, for 
example, in applying the rules of this paragraph (g)(3)(v), an employer 
may not aggregate the additional accruals or allocations for the 
preceding plan year resulting from the corrective amendment with the 
other accruals or allocations already provided under the terms of the 
plan as in effect during the preceding plan year without regard to the 
corrective amendment.
    (B) Corrective amendment to conform to safe harbor. The requirements 
of paragraph (g)(3)(v)(A) of this section need not be met if the 
corrective amendment is for purposes of conforming the plan to one of 
the safe harbors in Sec. 1.401(a)(4)-2(b) or Sec. 1.401(a)(4)-3(b) 
(including for purposes of applying the requirements of those safe 
harbors under the optional testing methods in Sec. 1.401(a)(4)-8 (b)(3) 
or (c)(3)), or ensuring that the plan continues to meet one of those 
safe harbors.
    (vi) Conditions for corrective amendment of the availability of 
benefits, rights, and features. A corrective amendment may not be taken 
into account under this paragraph (g) for purposes of satisfying 
Sec. 1.401(a)(4)-4(b) for a given plan year unless--
    (A) The corrective amendment is not part of a pattern of amendments 
being used to correct repeated failures with respect to a particular 
benefit, right, or feature;
    (B) The relevant provisions of the plan immediately after the 
corrective amendment with respect to the benefit, right, or feature 
(including a corrective amendment eliminating the benefit, right, or 
feature) remain in effect until the end of the first plan year beginning 
after the date of the amendment; and
    (C) The corrective amendment either--
    (1) Expands the group of employees to whom the benefit, right, or 
feature is currently available so that for each plan year in which the 
corrective amendment is taken into account in determining whether the 
plan satisfies Sec. 1.401(a)(4)-4(b), the group of employees

[[Page 166]]

to whom the benefit, right, or feature is currently available, after 
taking into account the amendment, satisfies the nondiscriminatory 
classification requirement of Sec. 1.410(b)-4 (and thus the current 
availability requirement of Sec. 1.401(a)(4)-4(b)) with a ratio 
percentage greater than or equal to the lesser of--
    (i) The safe harbor percentage applicable to the plan; and
    (ii) The ratio percentage of the plan; or
    (2) Eliminates the benefit, right, or feature (to the extent 
permitted under section 411(d)(6)) on or before the last day of the plan 
year for which the corrective amendment is taken into account.
    (vii) Special rules for section 401(k) plans and section 401(m) 
plans--(A) Minimum coverage requirements. In the case of a section 
401(k) plan, a corrective amendment may only be taken into account for 
purposes of satisfying Sec. 1.410(b)-3(a)(2)(i) under this paragraph (g) 
for a given plan year to the extent that the corrective amendment grants 
qualified nonelective contributions within the meaning of Sec. 1.401(k)-
1(g)(13)(ii) (QNECs) to nonhighly compensated nonexcludable employees 
who were not eligible employees within the meaning of Sec. 1.401(k)-
1(g)(4) for the given plan year, and the amount of the QNECs granted to 
each nonhighly compensated nonexcludable employee equals the product of 
the nonhighly compensated nonexcludable employee's plan year 
compensation and the actual deferral percentage (within the meaning of 
section 401(k)(3)(B)) for the given plan year for the group of NHCEs who 
are eligible employees. Similarly, in the case of a section 401(m) plan, 
a corrective amendment may only be taken into account for purposes of 
satisfying Sec. 1.410(b)-3(a)(2)(i) under this paragraph (g) for a given 
plan year to the extent that the corrective amendment grants qualified 
nonelective contributions (QNECs) to nonhighly compensated nonexcludable 
employees who were not eligible employees within the meaning of 
Sec. 1.401(m)-1(f)(4) for the given plan year, and the amount of the 
QNECs granted to each nonhighly compensated nonexcludable employee 
equals the product of the nonhighly compensated nonexcludable employee's 
plan year compensation and the actual contribution percentage (within 
the meaning of section 401(m)(3)) for the given plan year for the group 
of NHCEs who are eligible employees.
    (B) Correction of rate of match. In the case of a section 401(m) 
plan, allocations for a given plan year granted under a corrective 
amendment to NHCEs who made contributions for the plan year eligible for 
a matching contribution may be treated as matching contributions. These 
allocations treated as matching contributions may be taken into account 
for purposes of satisfying the current availability requirement of 
Sec. 1.401(a)(4)-4(b) with respect to the right to a rate of match, but 
may not be taken into account for satisfying other amounts testing.
    (4) Corrective amendments must have substance. A corrective 
amendment is not taken into account in determining whether a plan 
satisfies section 401(a)(4) or 410(b) to the extent the amendment 
affects nonvested employees whose employment with the employer 
terminated on or before the close of the preceding year, and who 
therefore would not have received any economic benefit from the 
amendment if it had been made in the prior year. Similarly, in 
determining whether the requirements of paragraph (g)(3)(vi)(C)(1) of 
this section are satisfied, a corrective amendment making a benefit, 
right, or feature available to employees is not taken into account to 
the extent the benefit, right, or feature is not currently available to 
any of those employees immediately after the amendment. However, a plan 
will not fail to satisfy the requirements of paragraph (g)(3)(vi)(C)(1) 
of this section by operation of the provisions in this paragraph (g)(4) 
if the benefit, right, or feature is made available to all employees in 
the plan as of the date of the amendment.
    (5) Effect under other statutory requirements. A corrective 
amendment under this paragraph (g) is treated as if it were adopted and 
effective as of the first day of the plan year only for the specific 
purposes described in this paragraph (g). Thus, for example, the 
corrective amendment is taken into account not only for purposes of 
sections

[[Page 167]]

401(a)(4) and 410(b), but also for purposes of determining whether the 
plan satisfies sections 401(l). By contrast, the amendment is not given 
retroactive effect for purposes of section 404 (deductions for employer 
contributions) or section 412 (minimum funding standards), unless 
otherwise provided for in rules applicable to those sections.
    (6) Examples. The following examples illustrate the rules in this 
paragraph (g):

    Example 1. Employer U maintains a calendar year defined benefit plan 
that in 1994 is tested using the safe harbor for flat benefit plans in 
Sec. 1.401(a)(4)-3(b)(4). In 1996, Employer U is concerned that the plan 
will not satisfy the demographic requirement in Sec. 1.401(a)(4)-
3(b)(4)(i)(C)(3) for the 1995 plan year because the average of the 
normal accrual rates for all NHCEs is less than 70 percent of the 
average of the normal accrual rates for all HCEs. Provided the 
corrective amendment would otherwise satisfy this paragraph (g), 
Employer U may make a corrective amendment to the plan to increase the 
number of NHCEs so that the amended plan satisfies the safe harbor for 
the 1995 plan year. The corrective amendment need not satisfy paragraph 
(g)(3)(v)(A) of this section because Employer U is retroactively 
amending the plan to conform to a safe harbor in Sec. 1.401(a)(4)-3(b). 
See paragraph (g)(3)(v)(B) of this section.
    Example 2. (a) Employer V maintains a calendar year defined 
contribution plan covering all the employees in Division M and Division 
N. Under the plan, only employees in Division M have the right to direct 
the investments in their account. For plan years prior to 1996, the plan 
met the current availability requirement of Sec. 1.401(a)(4)-4(b) 
because the employees in Division M were a group of employees that 
satisfied the nondiscriminatory classification test of Sec. 1.410(b)-4. 
Because of attrition in the employee population in Division M in 1996, 
the group of employees to whom the right to direct investments is 
available during that plan year no longer meets the nondiscriminatory 
classification test of Sec. 1.410(b)-4. Thus, the right to direct 
investments under the plan does not meet the current availability 
requirement of Sec. 1.401(a)(4)-4(b) during the 1996 plan year.
    (b) Employer V may amend the plan in 1997 (but on or before October 
15) to make the right to direct investments available from the date of 
the corrective amendment to a larger group of employees and the 
corrective amendment may be taken into account for purposes of 
satisfying the current availability requirement of Sec. 1.401(a)(4)-4(b) 
for 1996 if the amendment satisfies this paragraph (g). Thus, for 
example, the group of employees to whom the right to direct investments 
is currently available, after taking into account the corrective 
amendment, must satisfy the nondiscriminatory classification test of 
Sec. 1.410(b)-4 for 1996 using a safe harbor percentage (or if lower, 
the ratio percentage of the plan for 1996). In addition, the corrective 
amendment making the right to direct investments available to a larger 
group of employees must remain in effect through the end of the 1998 
plan year.
    (c) In order for Employer V to take the corrective amendment into 
account for purposes of satisfying the current availability requirement 
of Sec. 1.401(a)(4)-4(b) for the portion of the 1997 plan year before 
the amendment, the group of employees to whom the right to direct 
investments is currently available, taking into account the amendment, 
must satisfy the nondiscriminatory classification test of Sec. 1.410(b)-
4 for 1997 using a safe harbor percentage (or if lower, the ratio 
percentage of the plan for 1997).
    (d) Alternatively, if Employer V adopts the corrective amendment 
before the end of the 1996 plan year, the corrective amendment need only 
remain in force through the end of the 1997 plan year, or the corrective 
amendment may eliminate the right to direct investments (provided that 
the elimination remains in effect through the end of the 1997 plan 
year).
    Example 3. The facts are the same as in Example 2. In 1997, Employer 
V makes a corrective amendment to extend the plan to employees of 
Division O as well as Divisions M and N. Assume that the corrective 
amendment satisfies paragraph (g)(3)(v)(A) of this section, and thus, 
may be taken into account for purposes of satisfying the 
nondiscriminatory amounts requirement of Sec. 1.401(a)(4)-1(b)(2) or the 
minimum coverage requirements of section 410(b). However, the employees 
in Division O will not be taken into account in determining whether the 
right to direct investments meets the current availability requirements 
of Sec. 1.401(a)(4)-4(b) unless the corrective amendment meets the 
requirements of paragraph (g)(3)(vi) of this section. Thus, for example, 
the group of employees to whom the right to direct investments is made 
available as a result of the expansion of coverage, after taking into 
account the corrective amendment, must satisfy the nondiscriminatory 
clarification test of Sec. 1.410(b)-4 for 1996 using a safe harbor 
percentage (or if lower, the ratio percentage of the plan for 1996). In 
addition, the amendment making the right to direct investments available 
to a larger group of employees must remain in effect though the end of 
the 1998 plan year.
    Example 4. Employer W maintains a defined benefit plan that covers 
all employees and that offsets an employee's benefit by the employee's 
projected primary insurance amount. The plan is not eligible to use the

[[Page 168]]

safe harbors under Sec. 1.401(a)(4)-3(b) because the plan does not 
satisfy section 401(l). Under the plan, the accrual rates for all HCEs 
(determined under the general test of Sec. 1.401(a)(4)-3(c)) for 1998 
are less than 1.5 percent of average annual compensation, and the 
accrual rates for all NHCEs (determined under the general test of 
Sec. 1.401(a)(4)-3(c)) for 1998 are two percent of average annual 
compensation. If Employer W adopts a corrective amendment adopted in 
1999 that retroactively increases HCEs' benefits under the plan so that 
their accrual rates equal those of the NHCEs, the corrective amendment 
may not be taken into account in testing the 1998 plan year (i.e., the 
accruals that result from the corrective amendment are treated as 1999 
accruals), because the accruals for the 1998 plan year resulting from 
the corrective amendment would not separately satisfy sections 410(b) 
and 401(a)(4). This is the case even if, after taking the amendment into 
account, the plan would satisfy sections 410(b) and 401(a)(4) for the 
1998 plan year.
    Example 5. Employer X maintains two plans--Plan A and Plan B. Plan A 
satisfies the ratio percentage test of Sec. 1.410(b)-2(b)(2), but Plan B 
does not. Thus, in order to satisfy section 410(b), Plan B must satisfy 
the average benefits test of Sec. 1.410(b)-2(b)(3). The average benefit 
percentage of Plan B is 60 percent. Employer X may take into account a 
corrective amendment that increases the accruals under either Plan A or 
Plan B so that the average benefit percentage meets the 70 percent 
requirement of the average benefits test, if the amendment satisfies 
paragraph (g)(3)(v) of this section.
    Example 6. Employer Y maintains Plan C, which does not satisfy 
section 401(a)(4) in a plan year. Under the terms of paragraph (g)(2) of 
this section, Employer Y amends Plan C to increase the benefits of 
certain employees retroactively. In designing the amendment, Employer Y 
identifies those employees who have terminated without vested benefits 
during the period after the end of the prior plan year and before the 
adoption date of the amendment, and the amendment provides increases in 
benefits primarily to those employees. It would be inconsistent with the 
purpose of preventing discrimination in favor of HCEs for Plan C to 
treat the amendment as retroactively effective under this paragraph (g). 
See Sec. 1.401(a)(4)-1(c)(2).
    Example 7. Employer Z maintains both a section 401(k) plan and a 
section 401(m) plan that provides matching contributions at a rate of 50 
percent with respect to elective contributions under the section 401(k) 
plan. In plan year 1995, the section 401(k) plan fails to satisfy the 
actual deferral percentage test of section 401(k)(3). In order to 
satisfy section 401(k)(3), Employer Z makes corrective distributions to 
HCEs H1 through H10 of their excess contributions as provided under 
Sec. 1.401(k)-1(f). The matching contributions that H1 through H10 had 
received on account of their excess contributions are not forfeited, 
however. Thus, the effective rate of matching contributions provided to 
H1 through H10 is increased as a result of the corrective distributions. 
See Sec. 1.401(a)(4)-4(e)(3)(iii)(G). Since no NHCE in the section 
401(m) plan is provided with an equivalent rate of matching 
contributions, the rate of matching contributions provided to H1 through 
H10 does not satisfy the nondiscriminatory availability requirement of 
Sec. 1.401(a)(4)-4 in plan year 1995. Employer Z makes a corrective 
amendment by October 15, 1996, that grants allocations to NHCEs who made 
contributions for the 1995 plan year eligible for a matching 
contribution. Employer Z may treat the allocations granted under the 
corrective amendment to those NHCEs as matching contributions for the 
1995 plan year and, as a result, take them into account in determining 
whether the availability of the rate of matching contributions provided 
to H1 through H10 satisfies the current availability requirement of 
Sec. 1.401(a)(4)-4(b) for the 1995 plan year.

[T.D. 8485, 58 FR 46813, Sept. 3, 1993]



Sec. 1.401(a)(4)-12  Definitions.

    Unless otherwise provided, the definitions in this section govern in 
applying the provisions of Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13.
    Accumulation plan. Accumulation plan means a defined benefit plan 
under which the benefit of every employee for each plan year is 
separately determined, using plan year compensation (if benefits are 
determined as a percentage of compensation rather as than a dollar 
amount) separately calculated for the plan year, and each employee's 
total accrued benefit as of the end of a plan year is the sum of the 
separately determined benefit for that plan year and the total accrued 
benefit as of the end of the preceding plan year.
    Acquired group of employees. Acquired group of employees means 
employees of a prior employer who become employed by the employer in a 
transaction between the employer and the prior employer that is a stock 
or asset acquisition, merger, or other similar transaction involving a 
change in the employer of the employees of a trade or business, plus 
employees hired by or transferred into the acquired trade or business on 
or before a date selected by the employer that is within the transition 
period defined in section

[[Page 169]]

410(b)(6)(C)(ii). In addition, in the case of a transaction prior to the 
effective date of these regulations, the date by which employees must be 
hired by or transferred into the acquired trade or business in order to 
be included in the acquired group of employees may be any date prior to 
February 11, 1993, without regard to whether it is later than the end of 
the transition period defined in section 410(b)(6)(C)(ii).
    Actuarial equivalent. An amount or benefit is the actuarial 
equivalent of, or is actuarially equivalent to, another amount or 
benefit at a given time if the actuarial present value of the two 
amounts or benefits (calculated using the same actuarial assumptions) at 
that time is the same.
    Actuarial present value. Actuarial present value means the value as 
of a specified date of an amount or series of amounts due thereafter, 
where each amount is--
    (1) Multiplied by the probability that the condition or conditions 
on which payment of the amount is contingent will be satisfied; and
    (2) Discounted according to an assumed rate of interest to reflect 
the time value of money.
    Ancillary benefit. Ancillary benefit is defined in Sec. 1.401(a)(4)-
4(e)(2).
    Average annual compensation. Average annual compensation is defined 
in Sec. 1.401(a)(4)-3(e)(2).
    Base benefit percentage. Base benefit percentage is defined in 
Sec. 1.401(l)-1(c)(3).
    Benefit formula. Benefit formula means the formula a defined benefit 
plan applies to determine the accrued benefit (within the meaning of 
section 411(a)(7)(A)(i)) in the form of an annual benefit commencing at 
normal retirement age of an employee who continues in service until 
normal retirement age. Thus, for example, the benefit formula does not 
include the accrual method the plan applies (in conjunction with the 
benefit formula) to determine the accrued benefit of an employee who 
terminates employment before normal retirement age. For purposes of this 
definition, a change in plan provisions that applies only to certain 
employees who terminate within a limited period of time (e.g., an early 
retirement window benefit) is treated as a change in the plan's benefit 
formula for the employees to whom the change is potentially applicable 
during the period that the change is potentially applicable to them. The 
preceding sentence applies only to the extent that the change in plan 
provisions would result in a change in the benefit formula if it were 
permanent and applied without regard to when the employees' employment 
was terminated.
    Benefit, right, or feature. Benefit, right, or feature means an 
optional form of benefit, an ancillary benefit, or an other right or 
feature within the meaning of Sec. 1.401(a)(4)-4(e).
    Contributory DB plan. Contributory DB plan means a defined benefit 
plan that includes employee contributions not allocated to separate 
accounts.
    Defined benefit excess plan. Defined benefit excess plan is defined 
in Sec. 1.401(l)-1(c)(16)(i).
    Defined benefit plan. Defined benefit plan is defined in 
Sec. 1.410(b)-9.
    Defined contribution plan. Defined contribution plan is defined in 
Sec. 1.410(b)-9.
    Determination date. Determination date is defined in 
Sec. 1.401(a)(4)-8(b)(3)(iv)(A).
    Employee. With respect to a plan for a given plan year, employee 
means an employee (within the meaning of Sec. 1.410(b)-9) who benefits 
as an employee under the plan for the plan year (within the meaning of 
Sec. 1.410(b)-3).
    Employer. Employer is defined in Sec. 1.410(b)-9.
    ESOP. ESOP is defined in Sec. 1.410(b)-9.
    Excess benefit percentage. Excess benefit percentage is defined in 
Sec. 1.401(l)-1(c)(14).
    Former employee. With respect to a plan for a given plan year, 
former employee means a former employee (within the meaning of 
Sec. 1.410(b)-9).
    Former HCE. Former HCE means a highly compensated former employee as 
defined in Sec. 1.410(b)-9.
    Former NHCE. Former NHCE means a former employee who is not a former 
HCE.
    Fresh-start date. Fresh-start date is defined in Sec. 1.401(a)(4)-
13(c)(5)(iii).
    Fresh-start group. Fresh-start group is defined in Sec. 1.401(a)(4)-
13(c)(5)(ii).

[[Page 170]]

    Gross benefit percentage. Gross benefit percentage is defined in 
Sec. 1.401(l)-1(c)(18).
    HCE. HCE means a highly compensated employee as defined in 
Sec. 1.410(b)-9 who benefits under the plan for the plan year (within 
the meaning of Sec. 1.410(b)-3).
    Integration level. Integration level is defined in Sec. 1.401(l)-
1(c)(20).
    Measurement period. Measurement period is defined in 
Sec. 1.401(a)(4)-3(d)(1)(iii).
    Multiemployer plan. Multiemployer plan is defined in Sec. 1.410(b)-
9.
    NHCE. NHCE means an employee who is not an HCE.
    Nonexcludable employee. Nonexcludable employee means an employee 
within the meaning of Sec. 1.410(b)-9, other than an excludable employee 
with respect to the plan as determined under Sec. 1.410(b)-6. A 
nonexcludable employee may be either a highly or nonhighly compensated 
nonexcludable employee, depending on the nonexcludable employee's status 
under section 414(q).
    Normalize. With respect to a benefit payable to an employee in a 
particular form, normalize means to convert the benefit to an 
actuarially equivalent straight life annuity commencing at the 
employee's testing age. The actuarial assumptions used in normalizing a 
benefit must be reasonable and must be applied on a gender-neutral 
basis. A standard interest rate and a standard mortality table are among 
the assumptions considered reasonable for this purpose.
    Offset plan. Offset plan is defined in Sec. 1.401(l)-1(c)(24).
    Optional form of benefit. Optional form of benefit is defined in 
Sec. 1.401(a)(4)-4(e)(1).
    Other right or feature. Other right or feature is defined in 
Sec. 1.401(a)(4)-4(e)(3).
    Plan. Plan means a plan within the meaning of Sec. 1.410(b)-7 (a) 
and (b), after application of the mandatory disaggregation rules of 
Sec. 1.410(b)-7(c) and the permissive aggregation rules of 
Sec. 1.410(b)-7(d).
    Plan year. Plan year is defined in Sec. 1.410(b)-9.
    Plan year compensation--(1) In general. Plan year compensation means 
section 414(s) compensation for the plan year determined by measuring 
section 414(s) compensation during one of the periods described in 
paragraphs (2) through (4) of this definition. Whichever period is 
selected must be applied uniformly to determine the plan year 
compensation of every employee.
    (2) Plan year. This period consists of the plan year.
    (3) Twelve-month period ending in the plan year. This period 
consists of a specified 12-month period ending with or within the plan 
year, such as the calendar year or the period for determining benefit 
accruals described in Sec. 1.401(a)(4)-3(f)(6).
    (4) Period of plan participation during the plan year. This period 
consists of the portion of the plan year during which the employee is a 
participant in the plan. This period may be used to determine plan year 
compensation for the plan year in which participation begins, the plan 
year in which participation ends, or both. This period may be used to 
determine plan year compensation when substituted for average annual 
compensation in Sec. 1.401(a)(4)-3(e)(2)(ii)(A) only if the plan year is 
also the period for determining benefit accruals under the plan rather 
than another period as permitted under Sec. 1.401(a)(4)-3(f)(6). 
Further, selection of this period must be made on a reasonably 
consistent basis from plan year to plan year in a manner that does not 
discriminate in favor of HCEs.
    (5) Special rule for new employees. Notwithstanding the uniformity 
requirement of paragraph (1) of this definition, if employees' plan year 
compensation for a plan year is determined based on a 12-month period 
ending within the plan year under paragraph (3) of this definition, then 
the plan year compensation of any employees whose date of hire was less 
than 12 months before the end of that 12-month period must be determined 
uniformly based either on the plan year or on the employees' periods of 
participation during the plan year, as provided in paragraphs (2) and 
(4), respectively, of this definition.
    QJSA. QJSA means a qualified joint and survivor annuity as defined 
in section 417(b).
    QSUPP--(1) In general. QSUPP or qualified social security supplement 
means a social security supplement that meets each of the requirements 
in

[[Page 171]]

paragraphs (2) through (6) of this definition.
    (2) Accrual--(i) General rule. The amount of the social security 
supplement payable at any age for which the employee is eligible for the 
social security supplement must be equal to the lesser of--
    (A) The employee's old-age insurance benefit, unreduced on account 
of age, under title II of the Social Security Act; and
    (B) The accrued social security supplement, determined under one of 
the methods in paragraph (2) (ii) through (iv) of this definition.
    (ii) Section 401(l) plans. In the case of a section 401(l) plan that 
is a defined benefit excess plan, each employee's accrued social 
security supplement equals the employee's average annual compensation up 
to the integration level, multiplied by the disparity provided by the 
plan for the employee's years of service used in determining the 
employee's accrued benefit under the plan. In the case of a section 
401(l) plan that is an offset plan, each employee's accrued social 
security supplement equals the dollar amount of the offset accrued for 
the employee under the plan.
    (iii) PIA offset plan. In the case of a PIA offset plan, each 
employee's accrued social security supplement equals the dollar amount 
of the offset accrued for the employee under the plan. For this purpose, 
a PIA offset plan is a plan that reduces an employee's benefit by an 
offset based on a stated percentage of the employee's primary insurance 
amount under the Social Security Act.
    (iv) Other plans. In the case of any other plan, each employee's 
social security supplement accrues ratably over the period beginning 
with the later of the employee's commencement of participation in the 
plan or the effective date of the social security supplement and ending 
with the earliest age at which the social security supplement is payable 
to the employee. The effective date of the social security supplement is 
the later of the effective date of the amendment adding the social 
security supplement or the effective date of the amendment modifying an 
existing social security supplement to comply with the requirements of 
this definition. If, by the end of the first plan year to which these 
regulations apply, as set forth in Sec. 1.401(a)(4)-13 (a) and (b), an 
amendment is made to a social security supplement in existence on 
September 19, 1991, the employer may treat the accrued portion of the 
social security supplement, as determined under the plan without regard 
to amendments made after September 19, 1991, as included in the 
employee's accrued social security supplement, provided that the 
remainder of the social security supplement is accrued under the 
otherwise-applicable method.
    (3) Vesting. The plan must provide that an employee's right to the 
accrued social security supplement becomes nonforfeitable within the 
meaning of section 411 as if it were an early retirement benefit.
    (4) Eligibility. The plan must impose the same eligibility 
conditions on receipt of the social security supplement as on receipt of 
the early retirement benefit in conjunction with which the social 
security supplement is payable. Furthermore, if the service required for 
an employee to become eligible for the social security supplement 
exceeds 15 years, then the ratio percentage of the group of employees 
who actually satisfy the eligibility conditions on receipt of the QSUPP 
in the current plan year must equal or exceed the unsafe harbor 
percentage applicable to the plan under Sec. 1.410(b)-4(c)(4)(ii).
    (5) QJSA. At each age, the most valuable QSUPP commencing at that 
age must be payable in conjunction with the QJSA commencing at that age. 
In addition, the plan must provide that, in the case of a social 
security supplement payable in conjunction with a QJSA, the social 
security supplement will be paid after the employee's death on the same 
terms as the QJSA, but in no event for a period longer than the period 
for which the social security supplement would have been paid to the 
employee had the employee not died. For example, if the QJSA is in the 
form of a joint annuity with a 50-percent survivor's benefit, the social 
security supplement must provide a 50-percent survivor's benefit. When 
section 417(c) requires the determination of a QJSA for purposes of 
determining a

[[Page 172]]

qualified pre-retirement survivor's annuity as defined in section 417(c) 
(QPSA), the social security supplement payable in conjunction with that 
QJSA must be paid in conjunction with the QPSA.
    (6) Protection. The plan must specifically provide that the social 
security supplement is treated as an early retirement benefit that is 
protected under section 411(d)(6) (other than for purposes of sections 
401(a)(11) and 417). Thus, the accrued social security supplement must 
continue to be payable notwithstanding subsequent amendment of the plan 
(including the plan's termination), and an employee may meet the 
eligibility requirements for the social security supplement after plan 
termination.
    Qualified plan. Qualified plan means a plan that satisfies section 
401(a). For this purpose, a qualified plan includes an annuity plan 
described in section 403(a).
    Rate group. Rate group is defined in Sec. 1.401(a)(4)-2(c)(1) or is 
defined in Sec. 1.401(a)(4)-3(c)(1).
    Ratio percentage. Ratio percentage is defined in Sec. 1.410(b)-9.
    Section 401(a)(17) employee. Section 401(a)(17) employee is defined 
in Sec. 1.401(a)(17)-1(e)(2)(ii).
    Section 401(k) plan. Section 401(k) plan is defined in 
Sec. 1.410(b)-9.
    Section 401(l) plan. Section 401(l) plan is defined in 
Sec. 1.410(b)-9.
    Section 401(m) plan. Section 401(m) plan is defined in 
Sec. 1.410(b)-9.
    Section 414(s) compensation--(1) General rule. When used with 
reference to compensation for a plan year, 12-month period, or other 
specified period, section 414(s) compensation means compensation 
measured using an underlying definition that satisfies section 414(s) 
for the applicable plan year. Whether an underlying definition of 
compensation satisfies section 414(s) is determined on a year-by-year 
basis, based on the provisions of section 414(s) in effect for the 
applicable plan year and, if relevant, the employer's HCEs and NHCEs for 
that plan year. See Sec. 1.414(s)-1(i) for transition rules for plan 
years beginning before the effective date applicable to the plan under 
Sec. 1.401(a)(4)-13 (a) or (b). For a plan year or 12-month period 
beginning before January 1, 1988, any underlying definition of 
compensation may be used to measure the amount of employees' 
compensation for purposes of this definition, provided that the 
definition was nondiscriminatory based on the facts and circumstances in 
existence for that plan year or for the plan year in which that 12-month 
period ends.
    (2) Determination period for section 414(s) nondiscrimination 
requirement--(i) General rule. If an underlying definition of 
compensation must satisfy the nondiscrimination requirement in 
Sec. 1.414(s)-1(d)(3) in order to satisfy section 414(s) for a plan 
year, any one of the following determination periods may be used to 
satisfy the nondiscrimination requirement--
    (A) The plan year;
    (B) The calendar year ending in the plan year; or
    (C) The 12-month period ending in the plan year that is used to 
determine the underlying definition of compensation.
    (ii) Exception for partial plan year compensation. Notwithstanding 
the general rule in paragraph (2)(i) of this definition, if the period 
for measuring the underlying compensation is the portion of the plan 
year during which each employee is a participant in the plan (as 
provided in paragraph (4) of the definition of plan year compensation in 
this section), that period must be used as the determination period.
    (3) Plans using permitted disparity. In the case of a section 401(l) 
plan or a plan that imputes permitted disparity in accordance with 
Sec. 1.401(a)(4)-7, an underlying definition of compensation is not 
section 414(s) compensation if the definition results in significant 
under- inclusion of compensation for employees.
    (4) Double proration of service and compensation. If a defined 
benefit plan prorates benefit accruals as permitted under section 
411(b)(4)(B) by crediting less than full years of participation, then 
compensation for a plan year, 12-month period, or other specified period 
that is used to determine the amount of an employee's benefits under the 
plan will not fail to be section 414(s) compensation, merely because the 
amount of compensation for that period is adjusted to reflect the 
equivalent of full-time compensation to the

[[Page 173]]

extent necessary to satisfy the requirements of 29 CFR 2530.204-2(d) 
(regarding double proration of service and compensation). This 
adjustment is disregarded in determining whether the underlying 
definition of compensation used satisfies the requirements of section 
414(s). Thus, for example, if the underlying definition of compensation 
is an alternative definition that must satisfy the nondiscrimination 
requirement of Sec. 1.414(s)-1(d)(3), in determining whether that 
requirement is satisfied with regard to the underlying definition, the 
compensation included for any employee is determined without any 
adjustment to reflect the equivalent of full-time compensation required 
by 29 CFR 2530.204-2(d).
    Social security supplement. Social security supplement is defined in 
Sec. 1.411(a)-7(c)(4)(ii).
    Standard interest rate. Standard interest rate means an interest 
rate that is neither less than 7.5 percent nor greater than 8.5 percent, 
compounded annually. The Commissioner may, in revenue rulings, notices, 
and other guidance of general applicability, change the definition of 
standard interest rate.
    Standard mortality table. Standard mortality table means one of the 
following tables: the UP-1984 Mortality Table (Unisex); the 1983 Group 
Annuity Mortality Table (1983 GAM) (Female); the 1983 Group Annuity 
Mortality Table (1983 GAM) (Male); the 1983 Individual Annuity Mortality 
Table (1983 IAM) (Female); the 1983 Individual Annuity Mortality Table 
(1983 IAM) (Male); the 1971 Group Annuity Mortality Table (1971 GAM) 
(Female); the 1971 Group Annuity Mortality Table (1971 GAM) (Male); the 
1971 Individual Annuity Mortality Table (1971 IAM) (Female); or the 1971 
Individual Annuity Mortality Table (1971 IAM) (Male). These standard 
mortality tables are available from the Society of Actuaries, 475 N. 
Martingale Road, Suite 800, Schaumberg, Illinois 60173. The Commissioner 
may, in revenue rulings, notices, and other guidance of general 
applicability, change the definition of standard mortality table. See 
Sec. 601.601(d)(2)(ii)(b) of this Chapter.
    Straight life annuity. Straight life annuity means an annuity 
payable in equal installments for the life of the employee that 
terminates upon the employee's death.
    Testing age. With respect to an employee, testing age means the age 
determined for the employee under the following rules:
    (1) If the plan provides the same uniform normal retirement age for 
all employees, the employee's testing age is the employee's normal 
retirement age under the plan.
    (2) If a plan provides different uniform normal retirement ages for 
different employees or different groups of employees, the employee's 
testing age is the employee's latest normal retirement age under any 
uniform normal retirement age under the plan, regardless of whether that 
particular uniform normal retirement age actually applies to the 
employee under the plan.
    (3) If the plan does not provide a uniform normal retirement age, 
the employee's testing age is 65.
    (4) If an employee is beyond the testing age otherwise determined 
for the employee under paragraphs (1) through (3) of this definition, 
the employee's testing age is the employee's current age. The rule in 
the preceding sentence does not apply in the case of a defined benefit 
plan that fails to satisfy the requirements of Sec. 1.401(a)(4)-
3(f)(3)(i) (permitting certain increases in benefits that commence after 
normal retirement age to be disregarded).
    Testing service. Testing service is defined in Sec. 1.401(a)(4)-
3(d)(1)(iv).
    Uniform normal retirement age--(1) General rule. Uniform normal 
retirement age means a single normal retirement age under the plan that 
does not exceed the maximum age in paragraph (2) of this definition and 
that is the same for all of the employees in a given group. A group of 
employees does not fail to have a uniform normal retirement age merely 
because the plan contains provisions described in paragraphs (3) and (4) 
of this definition.
    (2) Maximum age. The maximum age is generally 65. However, if all 
employees have the same social security retirement age (within the 
meaning of section 415(b)(8)), the maximum age is

[[Page 174]]

the employees' social security retirement age. Thus, for example, a 
component plan has a uniform normal retirement age of 67 if it defines 
normal retirement age as social security retirement age and all 
employees in the component plan have a social security retirement age of 
67.
    (3) Stated anniversary date--(i) General rule. A group of employees 
does not fail to have a uniform normal retirement age merely because the 
plan provides that the normal retirement age of all employees in the 
group is the later of a stated age (not exceeding the maximum age in 
paragraph (2) of this definition) or a stated anniversary no later than 
the fifth anniversary of the time each employee commenced participation 
in the plan. For employees who commenced participation in the plan 
before the first plan year beginning on or after January 1, 1988, the 
stated anniversary date may be later than the anniversary described in 
the preceding sentence if it is no later than the earlier of the tenth 
anniversary of the date the employee commenced participation in the plan 
(or such earlier anniversary selected by the employer, if less than 10) 
or the fifth anniversary of the first day of the first plan year 
beginning on or after January 1, 1988.
    (ii) Use of service other than anniversary of commencement of 
participation. In lieu of using a stated anniversary date as permitted 
under paragraph (3)(i) of this definition, a plan may use a stated 
number of years of service measured on another basis, provided that the 
determination is made on a basis that satisfies section 411(a)(8) and 
that the stated number of years of service does not exceed the number of 
anniversaries permitted under paragraph (3)(i) of this definition. For 
example, a uniform normal retirement age could be based on the earlier 
of the fifth anniversary of the commencement of participation and the 
completion of five years of vesting service.
    (4) Conversion of normal retirement age to normal retirement date. A 
group of employees does not fail to have a uniform normal retirement age 
merely because a defined benefit plan provides for the commencement of 
normal retirement benefits on different retirement dates for different 
employees if each employee's normal retirement date is determined on a 
reasonable basis with reference to an otherwise uniform normal 
retirement age and the difference between the normal retirement date and 
the uniform normal retirement age cannot exceed six months for any 
employee. Thus, for example, benefits under a plan do not fail to 
commence at a uniform normal retirement age of age 62 for purposes of 
Sec. 1.401(a)(4)-3(b)(2)(i), merely because the plan's normal retirement 
date is defined as the last day of the plan year nearest attainment of 
age 62.
    Year of service. Year of service means a year of service as defined 
in the plan for a specific purpose, including the method of crediting 
service for that purpose under the plan.

[T.D. 8485, 58 FR 46820, Sept. 3, 1993]



Sec. 1.401(a)(4)-13  Effective dates and fresh-start rules.

    (a) General effective dates--(1) In general. Except as otherwise 
provided in this section, Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13 
apply to plan years beginning on or after January 1, 1994.
    (2) Plans of tax-exempt organizations. In the case of plans 
maintained by organizations exempt from income taxation under section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans), Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13 apply to plan years 
beginning on or after January 1, 1996.
    (3) Compliance during transition period. For plan years beginning 
before the effective date of these regulations, as set forth in 
paragraph (a)(1) and (2) of this section, and on or after the first day 
of the first plan year to which the amendments made to section 410(b) by 
section 1112(a) of the Tax Reform Act of 1986 (TRA '86) apply, a plan 
must be operated in accordance with a reasonable, good faith 
interpretation of section 401(a)(4), taking into account pre-existing 
guidance and the amendments made by TRA '86 to related provisions of the 
Code (including, for example, sections 401(l), 401(a)(17), and 410(b)). 
Whether a plan is operated in accordance with a reasonable, good faith 
interpretation of section 401(a)(4) will generally be determined on the 
basis of

[[Page 175]]

all the relevant facts and circumstances, including the extent to which 
an employer has resolved unclear issues in its favor. A plan will be 
deemed to be operated in accordance with a reasonable, good faith 
interpretation of section 401(a)(4) if it is operated in accordance with 
the terms of Secs. 1.401(a)(4)-1 through 1.401(a)(4)-13.
    (b) Effective date for governmental plans. In the case of 
governmental plans described in section 414(d), including plans subject 
to section 403(b)(12)(A)(i) (nonelective plans), Secs. 1.401(a)(4)-1 
through 1.401(a)(4)-13 apply to plan years beginning on or after the 
later of January 1, 1996, or 90 days after the opening of the first 
legislative session beginning on or after January 1, 1996, of the 
governing body with authority to amend the plan, if that body does not 
meet continuously. Such plans are deemed to satisfy section 401(a)(4) 
for plan years before that effective date. For purposes of this 
paragraph (b), the governing body with authority to amend the plan is 
the legislature, board, commission, council, or other governing body 
with authority to amend the plan.
    (c) Fresh-start rules for defined benefit plans--(1) Introduction. 
This paragraph (c) provides rules that must be satisfied in order to use 
the fresh-start testing options for defined benefit plans in 
Sec. 1.401(a)(4)-3(b)(6)(vii) and (d)(3)(iii), relating to the safe 
harbors and the general test, respectively. Those fresh-start options 
are designed to allow a plan to be tested without regard to benefits 
accrued before a selected fresh-start date. To the extent provided in 
paragraph (d) of this section, those options also may be used to 
disregard certain increases in benefits attributable to compensation 
increases after a fresh-start date. Although this paragraph (c) 
generally requires a plan to be amended to freeze employees' accrued 
benefits as of a fresh-start date and to provide any additional accrued 
benefits after the fresh-start date solely in accordance with certain 
specified formulas, certain of these requirements do not apply to a plan 
that is tested under the general test of Sec. 1.401(a)(4)-3(c). See 
Sec. 1.401(a)(4)-3(b)(6)(vii) and (d)(3)(iii).
    (2) General rule. A defined benefit plan satisfies this paragraph 
(c) if--
    (i) Accrued benefits of employees in the fresh-start group are 
frozen as of the fresh-start date in accordance with paragraph (c)(3) of 
this section;
    (ii) Accrued benefits after the fresh-start date for employees in 
the fresh-start group are determined under one of the fresh-start 
formulas in paragraph (c)(4) of this section; and
    (iii) Paragraph (c)(5) of this section is satisfied.
    (3) Definition of frozen--(i) General rule. An employee's accrued 
benefit under a plan is frozen as of the fresh-start date if it is 
determined as if the employee terminated employment with the employer as 
of the fresh-start date (or the date the employee actually terminated 
employment with the employer, if earlier), and without regard to any 
amendment to the plan adopted after that date, other than amendments 
recognized as effective as of or before that date under section 401(b) 
or Sec. 1.401(a)(4)-11(g). The assumption that an employee has 
terminated employment applies solely for purposes of this paragraph 
(c)(3). Thus, for example, the fresh start has no effect on the service 
taken into account for purposes of determining vesting and eligibility 
for benefits, rights, and features under the plan.
    (ii) Permitted compensation adjustments. An employee's accrued 
benefit under a plan that satisfies paragraph (d) of this section does 
not fail to be frozen as of the fresh-start date merely because the plan 
makes the adjustments described in paragraph (d)(7) and (8) of this 
section with regard to the fresh-start date. In addition, if the frozen 
accrued benefit of an employee under the plan includes top-heavy minimum 
benefits, an employee's accrued benefit under a plan does not fail to be 
frozen as of the fresh-start date merely because the plan increases the 
frozen accrued benefit of each employee in the fresh-start group solely 
to the extent necessary to comply with the average compensation 
requirement of section 416(c)(1)(D)(i).
    (iii) Permitted changes in optional forms. An employee's accrued 
benefit under a plan does not fail to be frozen

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as of the fresh-start date merely because the plan provides a new 
optional form of benefit with respect to the frozen accrued benefit, 
if--
    (A) The optional form is provided with respect to each employee's 
entire accrued benefit (i.e., accrued both before and after the fresh-
start date);
    (B) The plan provided meaningful coverage as of the fresh-start 
date, as described in paragraph (d)(4) of this section; and
    (C) The plan provides meaningful current benefit accruals as 
described in paragraph (d)(6) of this section.
    (iv) Floor-offset plans. In the case of a plan that was a floor-
offset plan described in Sec. 1.401(a)(4)-8(d) prior to the fresh-start 
date, an employee's accrued benefit as of the fresh-start date does not 
fail to be frozen merely because the actuarial equivalent of the account 
balance in the defined contribution plan that is offset against the 
defined benefit plan varies as a result of investment return that is 
different from the assumed interest rate used to determine the actuarial 
equivalent of the account balance.
    (4) Fresh-start formulas--(i) Formula without wear-away. An 
employee's accrued benefit under the plan is equal to the sum of--
    (A) The employee's frozen accrued benefit; and
    (B) The employee's accrued benefit determined under the formula 
applicable to benefit accruals in the current plan year (current 
formula) as applied to the employee's years of service after the fresh-
start date.
    (ii) Formula with wear-away. An employee's accrued benefit under the 
plan is equal to the greater of--
    (A) The employee's frozen accrued benefit; or
    (B) The employee's accrued benefit determined under the current 
formula as applied to the employee's total years of service (before and 
after the fresh-start date) taken into account under the current 
formula.
    (iii) Formula with extended wear-away. An employee's accrued benefit 
under the plan is equal to the greater of--
    (A) The amount determined under paragraph (c)(4)(i) of this section; 
or
    (B) The amount determined under paragraph (c)(4)(ii)(B) of this 
section.
    (5) Rules of application--(i) Consistency requirement. This 
paragraph (c)(5) is not satisfied unless the fresh-start rules in this 
paragraph (c) (and paragraph (d) of this section, if applicable) are 
applied consistently to all employees in the fresh-start group. Thus, 
for example, the same fresh-start date and fresh-start formula (within 
the meaning of paragraph (c)(4) of this section) must apply to all 
employees in the fresh-start group. Similarly, if a plan makes a fresh 
start for all employees with accrued benefits on the fresh-start date 
and, for a later plan year, is aggregated for purposes of section 
401(a)(4) with another plan that did not make the same fresh start, the 
aggregated plan must make a new fresh start in order to use the fresh-
start rules for that later plan year or any subsequent plan year.
    (ii) Definition of fresh-start group. Generally, the fresh-start 
group with respect to a fresh start consists of all employees who have 
accrued benefits as of the fresh-start date and have at least one hour 
of service with the employer after that date. However, a fresh-start 
group with respect to a fresh start may consist exclusively of all 
employees who have accrued benefits as of the fresh-start date, have at 
least one hour of service with the employer after that date, and are--
    (A) Section 401(a)(17) employees;
    (B) Members of an acquired group of employees (provided the fresh-
start date is the date determined under paragraph (c)(5)(iii)(B) of this 
section); or
    (C) Employees with a frozen accrued benefit that is attributable to 
assets and liabilities transferred to the plan as of a fresh-start date 
in connection with the transfer (provided the fresh-start date is the 
date determined under paragraph (c)(5)(iii)(C) of this section) and for 
whom the current formula is different from the formula used to determine 
the frozen accrued benefit.
    (iii) Definition of fresh-start date. Generally, the fresh-start 
date is the last day of a plan year. However, a plan may use a fresh-
start date other than the last day of the plan year if--
    (A) The plan satisfied the safe harbor rules of Sec. 1.401(a)(4)-
3(b) for the period from the beginning of the plan year through the 
fresh-start date;

[[Page 177]]

    (B) The fresh-start group is an acquired group of employees, and the 
fresh-start date is the latest date of hire or transfer into an acquired 
trade or business selected by the employer for any employees to be 
included in the acquired group of employees; or
    (C) The fresh-start group is the group of employees with a frozen 
accrued benefit that is attributable to assets and liabilities 
transferred to the plan and the fresh-start date is the date as of which 
the employees begin accruing benefits under the plan.
    (6) Examples. The following examples illustrate the rules in this 
paragraph (c):

    Example 1. (a) Employer X maintains a defined benefit plan with a 
calendar plan year. The plan formula provides an employee with a normal 
retirement benefit at age 65 of one percent of average annual 
compensation up to covered compensation multiplied by the employee's 
years of service for Employer X, plus 1.5 percent of average annual 
compensation in excess of covered compensation, multiplied by the 
employee's years of service for Employer X up to 40.
    (b) For plan years beginning after 1994, Employer X amends the plan 
formula to provide a normal retirement benefit of 0.75 percent of 
average annual compensation up to covered compensation multiplied by the 
employee's total years of service for Employer X up to 35, plus 1.4 
percent of average annual compensation in excess of covered compensation 
multiplied by the employee's years of service for Employer X up to 35. 
For plan years after 1994, each employee's accrued benefit is determined 
under the fresh-start formula in paragraph (c)(4)(iii) of this section 
(formula with extended wear-away), using December 31, 1994, as the 
fresh-start date.
    (c) As of December 31, 1994, Employee M has 10 years of service for 
Employer X, has average annual compensation of $38,000, and has covered 
compensation of $30,000. Employee M's accrued benefit as of December 31, 
1994, is therefore $4,200 ((1 percent x $30,000 x 10 years)+(1.5 
percent x $8,000 x 10 years)). As of December 31, 1995, Employee M has 
11 years of service for Employer X, has average annual compensation of 
$40,000 (determined by taking into account compensation before and after 
the fresh-start date), and has covered compensation of $32,000. Employee 
M's accrued benefit as of December 31, 1995, is $4,552, the greater of--
    (1) $4,552, the sum of Employee M's accrued benefit frozen as of 
December 31, 1994, ($4,200) and the amended formula applied to Employee 
M's years of service after 1994 ((0.75 percent x $32,000 x 1 year)+(1.4 
percent x $8,000 x 1 year), or $352); or
    (2) $3,872, the amended formula applied to Employee M's total years 
of service ((0.75 percent x $32,000 x 11 years)+(1.4 
percent x $8,000 x 11 years)).
    Example 2. (a) Employer Y maintains a defined benefit plan, Plan A, 
that has a calendar plan year. For the 1995 plan year, Plan A satisfies 
the requirements for a safe harbor plan in Sec. 1.401(a)(4)-3(b). 
Employer Y selects a date in 1995 for all the employees, freezes the 
employees' accrued benefits as of that date under the rules of paragraph 
(c)(3) of this section, and, in accordance with the rules of this 
paragraph (c), amends Plan A to determine benefits for all employees 
after that date using the formula with wear-away described in paragraph 
(c)(4)(ii) of this section. The new benefit formula would satisfy the 
requirements for a safe harbor plan in Sec. 1.401(a)(4)-3(b) if all 
accrued benefits were determined under it.
    (b) Because Plan A satisfied the requirements for a safe harbor plan 
for the period from the beginning of the plan year through the selected 
date, paragraph (c)(5)(iii)(A) of this section permits the selected date 
to be a fresh-start date, even if it is not the last day of the plan 
year. Thus, Plan A satisfies the requirements in this paragraph (c) for 
a fresh start as of the fresh-start date.
    (c) Under Sec. 1.401(a)(4)-3(b)(6)(vii), a plan does not fail to 
satisfy the requirements of Sec. 1.401(a)(4)-3(b), merely because of 
benefits accrued under a different formula prior to a fresh-start date. 
Thus, Plan A still satisfies the safe harbor requirements of 
Sec. 1.401(a)(4)-3(b) after the amendment to the benefit formula. 
Because Plan A satisfied the requirements for a safe harbor plan for the 
period from the beginning of the plan year, taking the amendment into 
account, Employer Y may select any date within the plan year (which may 
be the same date as the first fresh-start date) and apply the fresh-
start rules in this paragraph (c) a second time as of that date.

    (d) Compensation adjustments to frozen accrued benefits--(1) 
Introduction. In addition to the fresh-start rules in paragraph (c) of 
this section, this paragraph (d) sets forth requirements that must be 
satisfied in order for a plan to disregard increases in benefits accrued 
as of a fresh-start date that are attributable to increases in 
employees' compensation after the fresh-start date.
    (2) In general. In the case of a defined benefit plan that is tested 
under the safe harbors in Sec. 1.401(a)(4)-3(b) or Sec. 1.401(a)(4)-
8(c)(3), an employee's adjusted accrued benefit (determined under the 
rules in paragraph (d)(8) of

[[Page 178]]

this section) may be substituted for the employee's frozen accrued 
benefit in applying the formulas in paragraph (c)(4) of this section (or 
paragraph (f)(2) of this section, if applicable) if paragraphs (d)(3) 
through (d)(7) of this section are satisfied. Thus, for example, in 
determining whether such a plan satisfies Sec. 1.401(a)(4)-3(b), any 
compensation adjustments to the employee's frozen accrued benefit 
described in paragraph (d)(8) of this section are disregarded. 
Similarly, in the case of a defined benefit plan tested under the 
general test in Sec. 1.401(a)(4)-3(c), the compensation adjustments 
described in paragraph (d)(8) of this section may be disregarded under 
the rules of Sec. 1.401(a)(4)-3(d)(3)(iii) if paragraphs (d)(3) through 
(d)(7) of this section are satisfied. Of course, any increases in 
accrued benefits exceeding these adjustments must be taken into account 
under the general test, and a plan providing such excess increases 
generally will fail to satisfy the safe harbor requirements of 
Sec. 1.401(a)(4)-3(b). Where paragraphs (d)(3) through (d)(7) of this 
section are satisfied with respect to a plan as of the fresh-start date, 
but one or more of those paragraphs fail to be satisfied for a later 
plan year, further compensation adjustments described in paragraph 
(d)(8) of this section may not be disregarded in testing the plan under 
Sec. 1.401(a)(4)-3.
    (3) Plan requirements--(i) Pre-fresh-start date. As of the fresh-
start date, the plan must have contained a benefit formula under which 
benefits of each employee in the fresh-start group that are accrued as 
of the fresh-start date and are attributable to service before the 
fresh-start date would be affected by the employee's compensation after 
the fresh-start date. A plan satisfies this requirement, for example, if 
it based benefits on an employee's highest average pay over a fixed 
period of years or on an employee's average pay over the employee's 
entire career with the employer. A plan does not satisfy this paragraph 
(d)(3)(i) if the Commissioner determines, based on all of the relevant 
facts and circumstances, that the plan provision described in the first 
sentence of this paragraph (d)(3) was added primarily in order to 
provide additional benefits to HCEs that are disregarded under the 
special testing rules described in this paragraph (d).
    (ii) Post-fresh-start date. The plan by its terms must provide that 
the accrued benefits of each employee in the fresh-start group after the 
fresh-start date be at least equal to the employee's adjusted accrued 
benefit (i.e., the frozen accrued benefit as of the fresh-start date, 
adjusted as provided under paragraph (d)(7) of this section, plus the 
compensation adjustments described in paragraph (d)(8) of this section).
    (4) Meaningful coverage as of fresh-start date. The plan must have 
provided meaningful coverage as of the fresh-start date. A plan provided 
meaningful coverage as of the fresh-start date if the group of employees 
with accrued benefits under the plan as of the fresh-start date 
satisfied the minimum coverage requirements of section 410(b) as in 
effect on that date (determined without regard to section 410(b)(6)(C)). 
In order to satisfy the requirement in the preceding sentence, an 
employer may amend the plan to grant past service credit under the 
formula in effect as of the fresh-start date to NHCEs, if the amount of 
past service granted them is reasonably comparable, on average, to the 
amount of past service HCEs have under the plan. Any benefit increase 
that results from the grant of past service credit to a NHCE under this 
paragraph (d)(4) is included in the employee's frozen accrued benefit.
    (5) Meaningful ongoing coverage--(i) General rule. The fresh-start 
group must have satisfied the minimum coverage requirements of section 
410(b) for all plan years from the first plan year beginning after the 
fresh-start date through the current plan year. Thus, if a fresh-start 
group fails to satisfy the minimum coverage requirements of section 
410(b) for any plan year, this paragraph (d)(5) is not satisfied for 
that plan year or any subsequent plan year; however, such a failure is 
not taken into account in determining whether this paragraph (d)(5) is 
satisfied for any previous plan year.
    (ii) Alternative rules. Notwithstanding paragraph (d)(5)(i) of this 
section, a fresh-start group is deemed to satisfy this paragraph (d)(5) 
for all plan years following the fresh-start date if any

[[Page 179]]

one of the following requirements is satisfied:
    (A) Section 410(b) coverage for first five years. The fresh-start 
group must have satisfied the minimum coverage requirements of section 
410(b) for the first five plan years beginning after the fresh-start 
date.
    (B) Ratio percentage coverage as of fresh-start date. The fresh-
start group must have satisfied the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) as of the fresh-start date.
    (C) Fresh start for acquired group of employees. The fresh-start 
group must consist of an acquired group of employees that satisfied the 
minimum coverage requirements of section 410(b) (determined without 
regard to section 410(b)(6)(C)) as of the fresh-start date.
    (D) Fresh start before applicable effective date. The fresh-start 
date with respect to the fresh-start group must have been on or before 
the effective date applicable to the plan under paragraph (a) or (b) of 
this section.
    (6) Meaningful current benefit accruals. The benefit formula and 
accrual method under the plan that applies to the fresh-start group in 
the aggregate must provide benefit accruals in the current plan year 
(other than increases in benefits accrued as of the fresh-start date) at 
a rate that is meaningful in comparison to the rate at which benefits 
accrued for the fresh-start group in plan years beginning before the 
fresh-start date. Whether this requirement is satisfied with respect to 
a fresh-start group that does not include all employees in the plan with 
an hour of service after the fresh-start date may be determined taking 
into account the rate at which benefits are provided to other employees 
in the plan.
    (7) Minimum benefit adjustment--(i) In general. In the case of a 
section 401(l) plan or a plan that imputes disparity under 
Sec. 1.401(a)(4)-7, the plan must make the minimum benefit adjustment 
described in paragraph (d)(7)(ii) or (iii) of this section.
    (ii) Excess or offset plans. In the case of a plan that is a defined 
benefit excess plan as of the fresh-start date, each employee's frozen 
accrued benefit is adjusted so that the base benefit percentage is not 
less than 50 percent of the excess benefit percentage. In the case of a 
plan that is a PIA offset plan (as defined in paragraph (2)(iii) of the 
definition of QSUPP in Sec. 1.401(a)(4)-12) as of the fresh-start date, 
each employee's offset as applied to determine the frozen accrued 
benefit is adjusted so that it does not exceed 50 percent of the benefit 
determined without applying the offset.
    (iii) Other plans. In the case of a plan that is not described in 
paragraph (d)(7)(ii) of this section, each employee's frozen accrued 
benefit is adjusted in a manner that is economically equivalent to the 
adjustment required under that paragraph, taking into account the plan's 
benefit formula, accrual rate, and relevant employee factors, such as 
period of service.
    (8) Adjusted accrued benefit--(i) General rule. The term adjusted 
accrued benefit means an employee's frozen accrued benefit that is 
adjusted as provided in paragraph (d)(7) of this section and then 
multiplied by a fraction (not less than one), the numerator of which is 
the employee's compensation for the current plan year and the 
denominator of which is the employee's compensation as of the fresh-
start date determined under the same definition. For purposes of this 
adjustment, the compensation definition must be either the same 
compensation definition and formula used to determine the frozen accrued 
benefit or average annual compensation (determined without regard to 
Sec. 1.401(a)(4)-3(e)(2)(ii)(A) (use of plan year compensation)).
    (ii) Alternative formula for pre-effective-date fresh starts. In the 
case of a fresh-start date before the effective date that applies to the 
plan under paragraph (a) or (b) of this section, the adjusted accrued 
benefit may be determined by multiplying the frozen accrued benefit by a 
fraction (not less than one) determined under this paragraph (d)(8)(ii). 
The numerator of the fraction is the employee's average annual 
compensation for the current plan year. The denominator of the fraction 
is the employee's reconstructed average annual compensation as of the 
fresh-start date. An employee's reconstructed average annual 
compensation is determined by--
    (A) Selecting a single plan year beginning after the fresh-start 
date but

[[Page 180]]

beginning not later than the last day of the first plan year to which 
these regulations apply under paragraph (a) or (b) of this section;
    (B) Determining the employee's average annual compensation for the 
selected plan year under the same method used to determine the 
employee's average annual compensation for the current plan year under 
this paragraph (d)(8)(ii); and
    (C) Multiplying the employee's average annual compensation for the 
selected plan year by a fraction, the numerator of which is the 
employee's compensation as of the fresh-start date determined under the 
same compensation definition and formula used to determine the 
employee's frozen accrued benefit and the denominator of which is the 
employee's compensation for the selected plan year determined under the 
compensation definition and formula used to determine the employee's 
frozen accrued benefit.
    (iii) Effect of section 401(a)(17). In determining the numerators 
and the denominators of the fractions described in this paragraph 
(d)(8), the annual compensation limit under section 401(a)(17) generally 
applies. See, however, Sec. 1.401(a)(17)-1(e)(4) for special rules 
applicable to section 401(a)(17) employees.
    (iv) Option to make less than the full permitted adjustment. A plan 
may limit the increase in an employee's frozen accrued benefit for the 
current and all future years to a percentage (not more than 100 percent) 
of the increase otherwise provided under this paragraph (d)(8). 
Furthermore, the plan may, at any time, terminate all future adjustments 
permitted under this paragraph (d).
    (v) Alternative determination of adjusted accrued benefit. In lieu 
of applying the fractions in paragraph (d)(8)(i) or (ii) of this 
section, a plan may determine an employee's adjusted accrued benefit by 
substituting the employee's compensation for the current plan year 
(determined under the same compensation formula and underlying 
definition of compensation used to determine the employee's frozen 
accrued benefit) in the benefit formula used to determine the frozen 
accrued benefit. For this purpose, insignificant changes in the 
underlying definition of compensation to reflect current compensation 
practices will not be treated as a change in the definition of 
compensation. A plan may apply the alternative in this paragraph 
(d)(8)(v), only if it is reasonable to expect as of the fresh-start date 
that, over time, the use of this method instead of the general rule of 
paragraph (d)(8)(i) will not discriminate significantly in favor of 
HCEs.
    (9) Examples. The following examples illustrate the rules of this 
paragraph (d).

    Example 1. (a) Employer X maintains a defined benefit plan that is 
an excess plan with a calendar plan year. For plan years before 1989, 
the plan is integrated with benefits provided under the Social Security 
Act, providing each employee with a normal retirement benefit equal to 
one percent of the employee's average annual compensation in excess of 
the employee's covered compensation, multiplied by the employee's years 
of service for Employer X. The benefit formula thus provides no benefit 
with respect to average annual compensation up to covered compensation.
    (b) As of December 31, 1988, Employee M has 10 years of service for 
Employer X and has covered compensation of $25,000 and average annual 
compensation of $20,000. Employee M's average annual compensation has 
never exceeded $20,000. Therefore, as of December 31, 1988, Employee M's 
accrued benefit under the plan is zero.
    (c) Effective with the 1989 plan year, the plan is amended to 
provide each employee with a normal retirement benefit of 0.6 percent of 
average annual compensation up to covered compensation plus 1.2 percent 
of average annual compensation in excess of covered compensation, 
multiplied by the employee's years of service up to 35. The plan also 
provides that, for plan years after 1988, each employee's accrued 
benefit is determined under the formula in paragraph (c)(4)(i) of this 
section (formula without wear-away) and, in applying the fresh-start 
formula, each employee's frozen accrued benefit under paragraph 
(c)(4)(i) of this section will be adjusted under this paragraph (d), 
using the same compensation definition and formula used to determine the 
frozen accrued benefit under paragraph (d)(8)(i) of this section.
    (d) The plan uses the permitted disparity of section 401(l) and thus 
must also make the minimum benefit adjustment under paragraph (d)(7) of 
this section. Because the excess benefit percentage under the plan for 
years before 1989 was one percent, the plan must provide a base benefit 
percentage for those years of at least 0.5 percent. After the

[[Page 181]]

minimum benefit adjustment, Employee M's accrued benefit as of December 
31, 1988, is $1,000 (0.5 percent x $20,000 x 10 years).
    (e) As of December 31, 1992, Employee M has 14 years of service and 
has covered compensation of $30,000 and average annual compensation of 
$35,000. Employee M's adjusted accrued benefit as of December 31, 1992, 
is $1,750 ($1,000 x $35,000/$20,000), and Employee M's accrued benefit 
as of December 31, 1992, is $2,710 (the sum of $1,750 plus $960 ((0.6 
percent x $30,000 x 4 years) plus (1.2 percent x $5,000 x 4 years))).
    Example 2. (a) The facts are the same as in Example 1, except that 
in determining adjusted accrued benefits, the plan specifies the 
alternative method of paragraph (d)(8)(v) of this section. This method 
may be used because it is reasonable to expect as of the fresh-start 
date that, over time, the use of this method instead of the general rule 
of paragraph (d)(8)(i) will not discriminate significantly in favor of 
HCEs.
    (b) As of December 31, 1992, Employee M's adjusted accrued benefit 
is $2,000 (10 years of service prior to the fresh-start date x (0.5 
percent of $30,000+1.0 percent of the excess of $35,000 over $30,000)).
    (c) Alternatively, Employer X may choose to use the method of 
paragraph (d)(8)(v) of this section but freezes the covered compensation 
level at the dollar level in place as of the fresh-start date. In such 
case, Employee M's adjusted accrued benefit as of December 31, 1992, 
would have been $2,250 (10 years of service prior to the fresh-start 
date x (0.5 percent of $25,000+1.0 percent of the excess of $35,000 over 
$25,000)). This method may be used because it is reasonable to expect as 
of the fresh-start date that, over time, the use of this method instead 
of the general rule of paragraph (d)(8)(i) will not discriminate 
significantly in favor of HCEs.
    Example 3. (a) The facts are the same as in Example 1, except that 
for plan years before 1989, the plan provided a minimum benefit to 
certain employees equal to $120 per year of service. Employee M is 
entitled to the minimum benefit, and thus, Employee M's frozen accrued 
benefit as of December 31, 1988 was $1,200 (the greater of 10 years of 
service x $120 and $1,000, Employee M's benefit under the underlying 
formula, after the minimum benefit adjustment of paragraph (d)(7) of 
this section).
    (b) Employer X's plan specifies instead the alternative method of 
adjusting accrued benefits described in paragraph (d)(8)(v) of this 
section. (The fact that a minimum benefit applying to certain employees 
is not adjusted under the alternative method of paragraph (d)(8)(v) of 
this section, but would be adjusted under the general rule of paragraph 
(d)(8)(i) of this section does not change the conclusion in Example 2, 
that the plan may apply the alternative method).

    (e) Determination of initial theoretical reserve for target benefit 
plans--(1) General rule. In the case of a target benefit plan the stated 
benefit formula under which takes into account service for years in 
which the plan did not satisfy Sec. 1.401(a)(4)-8(b)(3), as permitted 
under Sec. 1.401(a)(4)-8(b)(3)(vii), the theoretical reserve as of the 
determination date for the last plan year beginning before the first day 
of the first plan year in which the plan satisfies Sec. 1.401(a)(4)-
8(b)(3) of an employee who was a participant in the plan on that 
determination date, is determined as follows:
    (i) Determine the actuarial present value, as of that determination 
date, of the stated benefit that the employee is projected to have at 
the employee's normal retirement age, using the actuarial assumptions, 
the provisions of the plan, and the employee's compensation as of that 
determination date. For an employee whose attained age equals or exceeds 
the employee's normal retirement age, determine the actuarial present 
value of the employee's stated benefit at the employee's current age, 
but using an immediate straight life annuity factor for an employee 
whose attained age equals the employee's normal retirement age.
    (ii) Calculate the actuarial present value of future required 
employer contributions (without regard to limitations under section 415 
or additional contributions described in Sec. 1.401(a)(4)-8(b)(3)(v)) as 
of that determination date (i.e., the actuarial present value of the 
level contributions due for each plan year through the end of the plan 
year in which the employee attains normal retirement age). This 
calculation is made assuming that the required contribution in each 
future year will be equal to the required contribution for the plan year 
that includes that determination date, and applying the interest rate 
that was used in determining that required contribution.
    (iii) Determine the excess, if any, of the amount determined in 
paragraph (e)(1)(i) of this section over the amount determined in 
paragraph (e)(1)(ii) of this section. This excess is the employee's 
theoretical reserve on that determination date.

[[Page 182]]

    (2) Example. The following example illustrates the determination of 
an employee's theoretical reserve.

    Example. (a) A target benefit plan was adopted and in effect before 
September 19, 1991, and satisfied the requirements of Rev. Rul. 76-464, 
1976-2 C.B. 115, with respect to all years credited under the stated 
benefit formula through 1993. The plan provides a stated benefit equal 
to 40 percent of compensation, payable annually as a straight life 
annuity beginning at normal retirement age. Normal retirement age under 
the plan is 65. The stated interest rate under the plan is six percent. 
The determination date for required contributions under the plan is the 
last day of the plan year. Employee M is 38 years old on the 
determination date for the 1993 plan year, has participated in the plan 
for five years, and has compensation equal to $60,000 in 1993. The 
amount of employer contribution to Employee M's account for 1993 was 
$2,468.
    (b) Under these facts, Employee M's theoretical reserve is equal to 
$13,909, calculated as follows:
    (1) The actuarial present value of Employee M's stated benefit is 
calculated using the actuarial assumptions, provisions of the plan and 
Employee M's compensation as of the determination date for the 1993 plan 
year. This amount is equal to $46,512, Employee M's stated benefit of 
$24,000 ($60,000 multiplied by 40 percent), multiplied by 1.938, the 
actuarial present value factor applicable to a participant who is 38 
years old using a stated interest rate of six percent.
    (2) The actuarial present value of future employer contributions is 
calculated assuming that the required contribution in each future year 
will be equal to the required contribution for the 1993 plan year and 
assuming the same interest rate as was used in determining that 
contribution. This amount is equal to $32,603, which is equal to the 
amount of the level annual employer contribution ($2,468) multiplied by 
a factor of 13.2105 (the temporary annuity factor for a period of 27 
years, assuming the six percent interest rate that was used to determine 
the required employer contribution).
    (3) Employee M's theoretical reserve is $13,909, the excess of the 
amount determined in paragraph (b)(1) of this Example over the amount 
determined in paragraph (b)(2) of this Example.

    (f) Special fresh-start rules for cash balance plans--(1) In 
general. In order to satisfy the optional testing method of 
Sec. 1.401(a)(4)-8(c)(3) after a fresh-start date, a cash balance plan 
must apply the rules of paragraph (c) of this section as modified under 
this paragraph (f). Paragraph (f)(2) of this section provides an 
alternative formula that may be used in addition to the formulas in 
paragraphs (c)(2) through (c)(4) of this section. Paragraph (f)(3) of 
this section sets forth certain limitations on use of the formulas in 
paragraph (c) or (f)(2) of this section.
    (2) Alternative formula--(i) In general. An employee's accrued 
benefit under the plan is equal to the greater of--
    (A) The employee's frozen accrued benefit, or
    (B) The employee's accrued benefit determined under the plan's 
benefit formula applicable to benefit accruals in the current plan year 
as applied to years of service after the fresh-start date, modified in 
accordance with paragraph (f)(2)(ii) of this section.
    (ii) Addition of opening hypothetical account. As of the first day 
after the fresh-start date, the plan must credit each employee's 
hypothetical account with an amount equal to the employee's opening 
hypothetical account (determined under paragraph (f)(2)(iii) of this 
section), adjusted for interest for the period that begins on the first 
day after the fresh-start date and that ends at normal retirement age. 
The interest adjustment in the preceding sentence must be made using the 
same interest rate applied to the hypothetical allocation for the first 
plan year beginning after the fresh-start date.
    (iii) Determination of opening hypothetical account--(A) General 
rule. An employee's opening hypothetical account equals the actuarial 
present value of the employee's frozen accrued benefit as of the fresh-
start date. For this purpose, if the plan provides for a single sum 
distribution as of the fresh-start date, the actuarial present value of 
the employee's frozen accrued benefit as of the fresh-start date equals 
the amount of a single sum distribution payable under the plan on that 
date, assuming that the employee terminated employment on the fresh-
start date, the employee's accrued benefit was 100-percent vested, and 
the employee satisfied all eligibility requirements under the plan for 
the single sum distribution. If the plan does not offer a single sum 
distribution as of the fresh-start date, the actuarial present value of 
the employee's frozen accrued benefit as of the fresh-start date must

[[Page 183]]

be determined using a standard mortality table and the applicable 
section 417(e) rates, as defined in Sec. 1.417(e)-1(d).
    (B) Alternative opening hypothetical account. Alternatively, the 
employee's opening hypothetical account is the greater of the opening 
hypothetical account determined under paragraph (f)(2)(ii)(A) of this 
section and the employee's hypothetical account as of the fresh-start 
date determined in accordance with Sec. 1.401(a)(4)-8(c)(3)(v)(A) 
calculated under the plan's benefit formula applicable to benefit 
accruals in the current plan year as applied to the employee's total 
years of service through the fresh-start date in a manner that satisfies 
the past service credit rules of Sec. 1.401(a)(4)-8(c)(3)(viii).
    (3) Limitations on formulas--(i) Past service restriction. If the 
plan does not satisfy the uniform hypothetical allocation formula 
requirement of Sec. 1.401(a)(4)-8(c)(3)(iii)(B) as of the fresh-start 
date, under Sec. 1.401(a)(4)-8(c)(3)(viii) the plan may not provide for 
past service credits, and thus may not use the formula in paragraph 
(c)(3) of this section (formula with wear-away), the formula in 
paragraph (c)(4) of this section (formula with extended wear-away), or 
the alternative determination of the opening hypothetical account in 
paragraph (f)(2)(iii)(B) of this section.
    (ii) Change in interest rate. If the interest rate used to adjust 
employees' hypothetical allocations under Sec. 1.401(a)(4)-8(c)(3)(iv) 
for the plan year is different from the interest rate used for this 
purpose in the immediately preceding plan year, the plan must use the 
formula in paragraph (c)(2) of this section (formula without wear-away).
    (iii) Meaningful benefit requirement. A plan is permitted to use the 
formula provided in paragraph (f)(2) of this section only if the plan 
satisfies paragraphs (d)(3) through (d)(5) of this section (regarding 
coverage as of fresh-start date, current benefit accruals, and minimum 
benefit adjustment, respectively).
[T.D. 8360, 56 FR 47598, Sept. 19, 1991; 57 FR 4721, Feb. 7, 1992; 57 FR 
10953, Mar. 31, 1992, as amended by T.D. 8485, 58 FR 46823, Sept. 3, 
1993]



Sec. 1.401(a)(5)-1  Special rules relating to nondiscrimination requirements.

    (a) In general. Section 401(a)(5) sets out certain provisions that 
will not of themselves be discriminatory within the meaning of section 
410(b)(2)(A)(i) or section 401(a)(4). The exceptions specified in 
section 401(a)(5) are not an exclusive enumeration, but are merely a 
recital of provisions frequently encountered that will not of themselves 
constitute prohibited discrimination in contributions or benefits. See 
section 401(a)(4) and the regulations thereunder for the basic 
nondiscrimination rules. See Sec. 1.410(b)-4 for the rule of section 
410(b)(2)(A)(i) (relating to the nondiscriminatory classification test 
that is part of the minimum coverage requirements) referred to in 
section 401(a)(5)(A). See paragraphs (b) through (f) of this section for 
special rules used in applying the section 401(a)(4) nondiscrimination 
requirements under the remaining provisions of section 401(a)(5).
    (b) Salaried or clerical employees. A plan does not fail to satisfy 
the nondiscrimination requirements of section 401(a)(4) merely because 
contributions or benefits provided under the plan are limited to 
salaried or clerical employees.
    (c) Uniform relationship to compensation. A plan does not fail to 
satisfy the nondiscrimination requirements of section 401(a)(4) merely 
because the contributions or benefits of, or on behalf of, the employees 
under the plan bear a uniform relationship to the compensation (within 
the meaning of section 414(s)) of those employees.
    (d) Certain disparity permitted. Under section 401(a)(5)(C), a plan 
does not discriminate in favor of highly compensated employees (as 
defined in section 414(q)), within the meaning of section 401(a)(4), in 
the amount of employer-provided contributions or benefits solely 
because--
    (1) In the case of a defined contribution plan, employer 
contributions allocated to the accounts of employees favor highly 
compensated employees in a manner permitted by section 401(l) (relating 
to permitted disparity in plan contributions and benefits), and
    (2) In the case of a defined benefit plan, employer-provided 
benefits favor

[[Page 184]]

highly compensated employees in a manner permitted by section 401(l) 
(relating to permitted disparity in plan contributions and benefits).
See Secs. 1.401(l)-1 through 1.401(l)-6 for rules under which a plan may 
satisfy section 401(l) for purposes of the safe harbors of 
Secs. 1.401(a)(4)-2(b)(3) and 1.401(a)(4)-3(b).
    (e) Defined benefit plans integrated with social security--(1) In 
general. Under section 401(a)(5)(D), a defined benefit plan does not 
discriminate in favor of highly compensated employees (as defined in 
section 414(q)) with respect to the amount of employer-provided 
contributions or benefits solely because the plan provides that, with 
respect to each employee, the employer-provided accrued retirement 
benefit under the plan is limited to the excess (if any) of--
    (i) The employee's final pay from the employer, over
    (ii) The employer-provided retirement benefit created under the 
Social Security Act and attributable to service by the employee for the 
employer.
    (2) Final pay. For purposes of paragraph (e)(1)(i) of this section, 
an employee's final pay from the employer as of a plan year is the 
employee's compensation (as defined in section 414(q)(7)) for the year 
(ending with or within the 5-plan-year period ending with the plan year 
in which the employee terminates from employment with the employer) in 
which the employee receives the highest compensation from the employer. 
Notwithstanding the preceding sentence, final pay for each employee 
under the plan may be determined with reference to the 5-plan-year 
period ending with the plan year before the plan year in which the 
employee terminates from employment with the employer. In determining an 
employee's final pay, the plan may specify any 12-month period (ending 
with or within the applicable 5-plan-year period) as a year provided the 
specified 12-month period is uniformly and consistently applied with 
respect to all employees. In determining an employee's final pay, 
compensation for any year in excess of the applicable limit under 
section 401(a)(17) for the year may not be taken into account.
    (3) Rules for determining amount of employer-provided social 
security retirement benefit. For purposes of paragraph (e)(1)(ii) of 
this section, the following rules apply.
    (i) The employer-provided retirement benefit on which any reduction 
or offset in the employee's accrued retirement benefit is based is 
limited solely to the employer-provided primary insurance amount payable 
under section 215 of the Social Security Act attributable to service by 
the employee for the employer.
    (ii) The employer-provided primary insurance amount attributable to 
service by the employee for the employer is determined by multiplying 
the employer-provided portion of the employee's projected primary 
insurance amount by a fraction (not exceeding 1), the numerator of which 
is the employee's number of complete years of covered service for the 
employer under the Social Security Act, and the denominator of which is 
35.
    (4) Projected primary insurance amount. (i) As of a plan year, an 
employee's projected primary insurance amount is the primary insurance 
amount, determined as of the close of the plan year (the ``determination 
date''), payable to the employee upon attainment of the employee's 
social security retirement age (as determined under section 415(b)(8)), 
assuming the employee's annual compensation from the employer that is 
treated as wages for purposes of the Social Security Act remains the 
same from the plan year until the employee's attainment of social 
security retirement age. With respect to service by the employee for the 
employer before the determination date, the actual compensation paid to 
the employee by the employer during all periods of service of the 
employee for the employer covered by the Social Security Act must be 
used in determining an employee's projected primary insurance amount. 
With respect to years before the employee's commencement of service for 
the employer, in determining the employee's projected primary insurance 
amount, it may be assumed that the employee received compensation in an 
amount computed

[[Page 185]]

by using a six-percent salary scale projected backwards from the 
determination date to the employee's 21st birthday. However, if the 
employee provides the employer with satisfactory evidence of the 
employee's actual past compensation for the prior years treated as wages 
under the Social Security Act at the time the compensation was earned 
and the actual past compensation results in a smaller projected primary 
insurance amount, the plan must use the actual past compensation. The 
plan administrator must give clear written notice to each employee of 
the employee's right to supply actual compensation history and of the 
financial consequences of failing to supply the history. The notice must 
be given each time the summary plan description is provided to the 
employee and must also be given upon the employee's separation from 
service. The notice must also state that the employee can obtain the 
actual compensation history from the Social Security Administration. In 
determining the employee's projected primary insurance amount, the 
employer may not take into account any compensation from any other 
employer while the employee is employed by the employer.
    (ii) As of a plan year, the employer-provided portion of the 
employee's projected primary insurance amount under the Social Security 
Act is 50 percent of the employee's projected primary insurance amount 
(as determined under paragraph (e)(4)(i) of this section).
    (5) Employer-provided accrued retirement benefit. For purposes of 
this section, the employee's employer-provided accrued retirement 
benefit as of a plan year is the employee's accrued retirement benefit 
under the plan (determined on an actual basis and not on a projected 
basis) attributable to employer contributions under the plan. With 
respect to plans that provide for employee contributions, see section 
411(c) for rules relating to the allocation of accrued benefits between 
employer contributions and employee contributions.
    (6) Additional rules. (i) As of a plan year, paragraph (e)(1) of 
this section does not apply to the extent that its application would 
result in a decrease in an employee's accrued benefit. See sections 
411(b)(1)(G) and 411(d)(6).
    (ii) Section 401(a)(5)(D) and this paragraph (e) do not apply to a 
plan maintained by an employer, determined for purposes of the Federal 
Insurance Contributions Act or the Railroad Retirement Tax Act, as 
applicable, that does not pay any wages within the meaning of section 
3121(a) or compensation within the meaning of section 3231(e). For this 
purpose, a plan maintained for a self-employed individual within the 
meaning of section 401(c)(1), who is also subject to the tax under 
section 1401, is deemed to be a plan maintained by an employer that pays 
wages within the meaning of section 3121(a).
    (iii) If a plan provides for the payment of an employee's accrued 
retirement benefit (whether or not subsidized) commencing before an 
employee's social security retirement age, the projected employer-
provided primary insurance amount attributable to service by the 
employee for the employer (as determined under paragraphs (e)(3) and 
(e)(4) of this section) that may be applied as an offset to limit the 
employee's accrued retirement benefit must be reduced in accordance with 
Sec. 1.401(l)-3(e)(1). The reduction is made by multiplying the 
employee's projected employer-provided primary insurance amount by a 
fraction, the numerator of which is the appropriate factor under 
Sec. 1.401(l)-3(e)(1), and the denominator of which is 0.75 percent.
    (iv) The Commissioner may, in revenue rulings, notices or other 
documents of general applicability, prescribe additional rules that may 
be necessary or appropriate to carry out the purposes of this section, 
including rules relating to the determination of an employee's projected 
primary insurance amount attributable to the employee's service for 
former employers and rules applying section 401(a)(5)(D) with respect to 
an employer that pays wages within the meaning of section 3121(a) or 
compensation within the meaning of section 3231(e) for some years and 
not for other years.
    (7) Examples. The following examples illustrate this paragraph (e).

    Example 1. Employer Z maintains a noncontributory defined benefit 
plan that uses the calendar year as its plan year. The plan

[[Page 186]]

provides a normal retirement benefit, commencing at age 65, equal to 
$500 a year, multiplied by the employee's years of service for Z, 
limited to the excess of the amount of the employee's final pay from Z 
(as determined in accordance with paragraph (e)(2) of this section) over 
the employee's employer-provided primary insurance amount attributable 
to the employee's service for Z. If an employee's social security 
retirement age is greater than 65, the plan provides for reduction of 
the employee's employer-provided primary insurance amount in accordance 
with paragraph (e)(6)(iii) of this section. The plan provides no 
limitation on the number of years of service taken into account in 
determining benefits under the plan. Employee A retires on July 6, 1995, 
at A's social security retirement age of 65 with 35 years of service for 
Z. The plan uses the plan year as the 12- month period for determining 
an employee's year of final highest pay from the employer. A's 
compensation for A's final 5 plan years is as follows:

1995 plan year................................................   $10,500
1994 plan year................................................   $20,000
1993 plan year................................................   $18,000
1992 plan year................................................   $17,000
1991 plan year................................................   $16,500
                                                                        

    A's annual primary insurance amount under social security, 
determined as of A's social security retirement age, is $9,000, of which 
$4,500 is the employer-provided portion attributable to A's service for 
Z ($9,000  x  50 percent  x  35/35). Under the plan's benefit formula 
(disregarding the final pay limitation), A would be entitled to receive 
a normal retirement benefit of $17,500 ($500  x  35 years). However, 
under the plan, A's otherwise determined normal retirement benefit of 
$17,500 is limited to the excess of the amount of A's final pay from Z 
over A's employer-provided primary insurance amount under social 
security attributable to A's service for Z. Accordingly, A's normal 
retirement benefit is determined to be $15,500 ($20,000 (A's final pay 
from Z) less $4,500 (A's employer-provided primary insurance amount 
attributable to A's service for Z)) rather than $17,500. The final pay 
limitation in Z's plan satisfies section 401(a)(5)(D) and this paragraph 
(e). Accordingly, the plan maintained by Z does not discriminate in 
favor of highly compensated employees within the meaning of section 
401(a)(4) merely because of the final pay limitation contained in the 
plan.
    Example 2. Assume the same facts as in Example 1, except that A has 
32 years of service for Z when A retires at A's social security 
retirement age. Under the plan's benefit formula (disregarding the final 
pay limitation), A would be entitled to receive an annual normal 
retirement benefit of $16,000 ($500  x  32 years). However, the plan 
provides that A's normal retirement benefit of $16,000 will be limited 
to $15,500 ($20,000 (the amount of A's final pay from Z) less $4,500 
(\1/2\ of A's primary insurance amount under the Social Security Act)). 
The final pay limitation does not satisfy this paragraph (e). The 
portion of A's employer-provided primary insurance amount under the 
Social Security Act attributable to A's service for Z is 32/35  x  
$4,500, or $4,114. Therefore, to satisfy this paragraph (e), the final 
pay provision in Z's plan may not limit A's otherwise determined normal 
retirement benefit of $16,000 to less than $15,886 ($20,000 (the amount 
of X's final pay) minus $4,114 (the portion of A's employer-provided 
primary insurance amount attributable to A's service for Z)).
    Example 3. (a) Employer X maintains a noncontributory defined 
benefit plan that uses the calendar year as its plan year. The formula 
for determining benefits under the plan provides a normal retirement 
benefit at age 65 equal to 90 percent of an employee's final average 
compensation, with the benefit reduced by \1/30\th for each year of the 
employee's service less than 30 and limited to the employee's final pay 
(as determined in accordance with paragraph (e)(2) of this section) less 
the employee's employer-provided primary insurance amount under social 
security attributable to the employee's service for X. The plan 
determines an employee's employer-provided projected primary insurance 
amount under social security attributable to the employee's service for 
X in accordance with paragraph (e)(3) of this section and applies the 
reductions applicable under paragraph (e)(6)(iii) of this section if 
benefits commence before social security retirement age. The plan 
determines an employee's accrued benefit under the fractional accrual 
method of section 411(b)(1)(C).
    (b) Employee A commences participation in the plan on January 1, 
1990, when A is 35 years of age. A's social security retirement age is 
67. As of the close of the 2014 plan year, A's final average 
compensation from X is $15,000; A's final pay from X is $15,400, and A's 
projected employer-provided annual primary insurance amount under social 
security attributable to A's service for X is $4,000 (after the 
reduction applicable under paragraph (e)(6)(iii) of this section). Under 
the plan formula, A's accrued benefit as of the close of the 2014 plan 
year is $11,250 (90 percent  x  $15,000  x  25/30). As of the close of 
the 2014 plan year, the plan's final pay limitation does not affect A's 
benefit because A's benefit under the plan as of the close of the plan 
year and before application of the final pay limitation ($11,250) does 
not exceed A's final pay of $15,400 from X, determined as of the close 
of the plan year, less A's employer-provided projected primary insurance 
amount under social security attributable to A's service for X ($4,000).
    (c) Assume that, as of the close of the 2015 plan year, A's final 
average compensation

[[Page 187]]

from X is $14,500 and A's final pay from X is $15,400. Assume also that 
as of the close of the 2015 plan year, A's employer-provided primary 
insurance amount attributable to A's service for X is $4,200 (after the 
reduction applicable under paragraph (e)(6)(iii) of this section). 
Accordingly, A's benefit as of the close of the 2015 plan year and 
before application of the final pay limitation is $11,310 (90 percent 
x  $14,500  x  26/30). Under the plan's final pay limitation, A's 
benefit of $11,310 would be limited to $11,200, the amount of A's final 
pay from X ($15,400), less A's employer-provided projected primary 
insurance amount under social security attributable to A's service for X 
($4,200). However, the plan's final pay limitation may not be applied to 
limit A's accrued benefit for the 2015 plan year to an amount below 
$11,250, which was A's accrued benefit under the plan at the close of 
the prior plan year. The foregoing is further illustrated in the 
following table for the plan years presented above and for additional 
years of service performed by A for X.

                                                      Table                                                     
                                               [In dollar amounts]                                              
----------------------------------------------------------------------------------------------------------------
                1                       2            3            4             5            6            7     
----------------------------------------------------------------------------------------------------------------
                                                                            Employer-                 Benefit to
                                                                            provided                  which A is
                                                  Benefit                   projected    Benefit if    entitled 
                                                 under plan                  primary     final pay   (smaller of
                                      Final       formula                   insurance    reduction   Column 6 or
        Years of service             average     (Column 2    Final pay   amount under   is applied   Column 3, 
                                  compensation   x  0.9  x                   social       in full      but not  
                                                  years of                  security    (Column 4 -   less than 
                                                service/30)               attributable   Column 5)     Column 7 
                                                                           to service                 for prior 
                                                                          for employer                  year)   
----------------------------------------------------------------------------------------------------------------
25..............................       $15,000      $11,250      $15,400        $4,000      $11,400      $11,250
26..............................        14,500       11,310       15,400         4,200       11,200       11,250
27..............................        15,500       12,555       15,800         4,400       11,400       11,400
28..............................        15,500       13,020       16,000         4,500       11,500       11,500
29..............................        15,000       13,050       16,000         4,800       11,200       11,500
30..............................        14,500       13,050       16,000         5,000       11,000       11,500
----------------------------------------------------------------------------------------------------------------

    (f) Certain benefits not taken into account. In determining whether 
a plan satisfies section 401(a)(4) and this section, other benefits 
created under state or federal law (e.g., worker's compensation benefits 
or black lung benefits) may not be taken into account.
    (g) More than one plan treated as single plan. [Reserved]
    (h) Effective date--(1) In general. Except as provided in paragraph 
(h)(2) of this section, this section is effective for plan years 
beginning on or after January 1, 1994.
    (2) Plans of tax-exempt organizations. In the case of plans 
maintained by organizations exempt from income taxation under section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans), this section is effective for plan years beginning on or after 
January 1, 1996.
    (3) Compliance during transition period. For plan years beginning 
before the effective date of these regulations, as set forth in 
paragraphs (h)(1) and (h)(2) of this section, and on or after the first 
day of the first plan year to which the amendments made to section 
401(a)(5) by section 1111(b) of the Tax Reform Act of 1986 (TRA '86) 
apply, a plan must be operated in accordance with a reasonable, good 
faith interpretation of section 401(a)(5), taking into account pre-
existing guidance and the amendments made by TRA '86 to related 
provisions of the Code. Whether a plan is operated in accordance with a 
reasonable, good faith interpretation of section 401(a)(5) will 
generally be determined based on all of the relevant facts and 
circumstances, including the extent to which an employer has resolved 
unclear issues in its favor. A plan will be deemed to be operated in 
accordance with a reasonable, good faith interpretation of section 
401(a)(5) if it is operated in accordance with the terms of this 
section.

[T.D. 8359, 56 FR 47614, Sept. 19, 1991; 57 FR 10817, 10818, 10951, Mar. 
31, 1992, as amended by T.D. 8486, 58 FR 46830, Sept. 3, 1993]

[[Page 188]]



Sec. 1.401(a)(17)-1  Limitation on annual compensation.

    (a) Compensation limit requirement--(1) In general. In order to be a 
qualified plan, a plan must satisfy section 401(a)(17). Section 
401(a)(17) provides an annual compensation limit for each employee under 
a qualified plan. This limit applies to a qualified plan in two ways. 
First, a plan may not base allocations, in the case of a defined 
contribution plan, or benefit accruals, in the case of a defined benefit 
plan, on compensation in excess of the annual compensation limit. 
Second, the amount of an employee's annual compensation that may be 
taken into account in applying certain specified nondiscrimination rules 
under the Internal Revenue Code is subject to the annual compensation 
limit. These two limitations are set forth in paragraphs (b) and (c) of 
this section, respectively. Paragraph (d) of this section provides the 
effective dates of section 401(a)(17), the amendments made by section 
13212 of the Omnibus Budget Reconciliation Act of 1993 (OBRA '93), and 
this section. Paragraph (e) of this section provides rules for 
determining post-effective-date accrued benefits under the fresh-start 
rules.
    (2) Annual compensation limit for plan years beginning before 
January 1, 1994. For purposes of this section, for plan years beginning 
prior to the OBRA '93 effective date, annual compensation limit means 
$200,000, adjusted as provided by the Commissioner. The amount of the 
annual compensation limit is adjusted at the same time and in the same 
manner as under section 415(d). The base period for the annual 
adjustment is the calendar quarter ending December 31, 1988, and the 
first adjustment is effective on January 1, 1990. Any increase in the 
annual compensation limit is effective as of January 1 of a calendar 
year and applies to any plan year beginning in that calendar year. In 
any plan year beginning prior to the OBRA '93 effective date, if 
compensation for any plan year beginning prior to the statutory 
effective date is used for determining allocations or benefit accruals, 
or when applying any nondiscrimination rule, then the annual 
compensation limit for the first plan year beginning on or after the 
statutory effective date (generally $200,000) must be applied to 
compensation for that prior plan year.
    (3) Annual compensation limit for plan years beginning on or after 
January 1, 1994--(i) In general. For purposes of this section, for plan 
years beginning on or after the OBRA '93 effective date, annual 
compensation limit means $150,000, adjusted as provided by the 
Commissioner. The adjusted dollar amount of the annual compensation 
limit is determined by adjusting the $150,000 amount for changes in the 
cost of living as provided in paragraph (a)(3)(ii) of this section and 
rounding this adjusted dollar amount as provided in paragraph 
(a)(3)(iii) of this section. Any increase in the annual compensation 
limit is effective as of January 1 of a calendar year and applies to any 
plan year beginning in that calendar year. For example, if a plan has a 
plan year beginning July 1, 1994, and ending June 30, 1995, the annual 
compensation limit in effect on January 1, 1994 ($150,000), applies to 
the plan for the entire plan year.
    (ii) Cost of living adjustment. The $150,000 amount is adjusted for 
changes in the cost of living by the Commissioner at the same time and 
in the same manner as under section 415(d). The base period for the 
annual adjustment is the calendar quarter ending December 31, 1993.
    (iii) Rounding of adjusted compensation limit. After the $150,000, 
adjusted in accordance with paragraph (a)(3)(ii) of this section, 
exceeds the annual compensation limit for the prior calendar year by 
$10,000 or more, the annual compensation limit will be increased by the 
amount of such excess, rounded down to the next lowest multiple of 
$10,000.
    (4) Additional guidance. The Commissioner may, in revenue rulings 
and procedures, notices, and other guidance, published in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this chapter), 
provide any additional guidance that may be necessary or appropriate 
concerning the annual limits on compensation under section 401(a)(17).
    (b) Plan limit on compensation--(1) General rule. A plan does not 
satisfy section 401(a)(17) unless it provides

[[Page 189]]

that the compensation taken into account for any employee in determining 
plan allocations or benefit accruals for any plan year is limited to the 
annual compensation limit. For purposes of this rule, allocations and 
benefit accruals under a plan include all benefits provided under the 
plan, including ancillary benefits.
    (2) Plan-year-by-plan-year requirement. For purposes of this 
paragraph (b), the limit in effect for the current plan year applies 
only to the compensation for that year that is taken into account in 
determining plan allocations or benefit accruals for the year. The 
compensation for any prior plan year taken into account in determining 
an employee's allocations or benefit accruals for the current plan year 
is subject to the applicable annual compensation limit in effect for 
that prior year. Thus, increases in the annual compensation limit apply 
only to compensation taken into account for the plan year in which the 
increase is effective. In addition, if compensation for any plan year 
beginning prior to the OBRA '93 effective date is used for determining 
allocations or benefit accruals in a plan year beginning on or after the 
OBRA '93 effective date, then the annual compensation limit for that 
prior year is the annual compensation limit in effect for the first plan 
year beginning on or after the OBRA '93 effective date (generally 
$150,000).
    (3) Application of limit to a plan year--(i) In general. For 
purposes of applying this paragraph (b), the annual compensation limit 
is applied to the compensation for the plan year on which allocations or 
benefit accruals are based.
    (ii) Compensation for the plan year. If a plan determines 
compensation used in determining allocations or benefit accruals for a 
plan year based on compensation for the plan year, then the annual 
compensation limit that applies to the compensation for the plan year is 
the limit in effect for the calendar year in which the plan year begins. 
Alternatively, if a plan determines compensation used in determining 
allocations or benefit accruals for the plan year on the basis of 
compensation for a 12-consecutive-month period, or periods, ending no 
later than the last day of the plan year, then the annual compensation 
limit applies to compensation for each of those periods based on the 
annual compensation limit in effect for the respective calendar year in 
which each 12-month period begins.
    (iii) Compensation for a period of less than 12-months--(A) 
Proration required. If compensation for a period of less than 12 months 
is used for a plan year, then the otherwise applicable annual 
compensation limit is reduced in the same proportion as the reduction in 
the 12-month period. For example, if a defined benefit plan provides 
that the accrual for each month in a plan year is separately determined 
based on the compensation for that month and the plan year accrual is 
the sum of the accruals for all months, then the annual compensation 
limit for each month is \1/12\th of the annual compensation limit for 
the plan year. In addition, if the period for determining compensation 
used in calculating an employee's allocation or accrual for a plan year 
is a short plan year (i.e., shorter than 12 months), the annual 
compensation limit is an amount equal to the otherwise applicable annual 
compensation limit multiplied by a fraction, the numerator of which is 
the number of months in the short plan year, and the denominator of 
which is 12.
    (B) No proration required for participation for less than a full 
plan year. Notwithstanding paragraph (b)(3)(iii)(A) of this section, a 
plan is not treated as using compensation for less than 12 months for a 
plan year merely because the plan formula provides that the allocation 
or accrual for each employee is based on compensation for the portion of 
the plan year during which the employee is a participant in the plan. In 
addition, no proration is required merely because an employee is covered 
under a plan for less than a full plan year, provided that allocations 
or benefit accruals are otherwise determined using compensation for a 
period of at least 12 months. Finally, notwithstanding paragraph 
(b)(3)(iii)(A) of this section, no proration is required merely because 
the amount of elective contributions (within the meaning of 
Sec. 1.401(k)-1(g)(3)), matching contributions (within the meaning of 
Sec. 1.401(m)-1(f)(12)), or employee contributions

[[Page 190]]

(within the meaning of Sec. 1.401(m)-1(f)(6)) that is contributed for 
each pay period during a plan year is determined separately using 
compensation for that pay period.
    (4) Limits on multiple employer and multiemployer plans. For 
purposes of this paragraph (b), in the case of a plan described in 
section 413(c) or 414(f) (a plan maintained by more than one employer), 
the annual compensation limit applies separately with respect to the 
compensation of an employee from each employer maintaining the plan 
instead of applying to the employee's total compensation from all 
employers maintaining the plan.
    (5) Family aggregation. [Reserved]
    (6) Examples. The following examples illustrate the rules in this 
paragraph (b).

    Example 1. Plan X is a defined benefit plan with a calendar year 
plan year and bases benefits on the average of an employee's high 3 
consecutive years' compensation. The OBRA '93 effective date for Plan X 
is January 1, 1994. Employee A's high 3 consecutive years' compensation 
prior to the application of the annual compensation limits is $160,000 
(1994), $155,000 (1993), and $135,000 (1992). To satisfy this paragraph 
(b), Plan X cannot base plan benefits for Employee A in 1994 on 
compensation in excess of $145,000 (the average of $150,000 (A's 1994 
compensation capped by the annual compensation limit), $150,000 (A's 
1993 compensation capped by the $150,000 annual compensation limit 
applicable to all years before 1994), and $135,000 (A's 1992 
compensation capped by the $150,000 annual compensation limit applicable 
to all years before 1994)). For purposes of determining the 1994 
accrual, each year (1994, 1993, and 1992), not the average of the 3 
years, is subject to the 1994 annual compensation limit of $150,000.
    Example 2. Assume the same facts as Example 1, except that Employee 
A's high 3 consecutive years' compensation prior to the application of 
the limits is $185,000 (1997), $175,000 (1996), and $165,000 (1995). 
Assume that the annual compensation limit is first adjusted to $160,000 
for plan years beginning on or after January 1, 1997. Plan X cannot base 
plan benefits for Employee A in 1997 on compensation in excess of 
$153,333 (the average of $160,000 (A's 1997 compensation capped by the 
1997 limit), $150,000 (A's 1996 compensation capped by the 1996 limit), 
and $150,000 (A's 1995 compensation capped by the 1995 limit)).
    Example 3. Plan Y is a defined benefit plan that bases benefits on 
an employee's high consecutive 36 months of compensation ending within 
the plan year. Employee B's high 36 months are the period September 1995 
to August 1998, in which Employee B earned $50,000 in each month. Assume 
that the annual compensation limit is first adjusted to $160,000 for 
plan years beginning on or after January 1, 1997. The annual 
compensation limit is $150,000, $150,000, and $160,000 in 1995, 1996, 
and 1997, respectively. To satisfy this paragraph (b), Plan Y cannot 
base Employee B's plan benefits for the 1998 plan year on compensation 
in excess of $153,333. This amount is determined by applying the 
applicable annual compensation limit to compensation for each of the 
three 12-consecutive-month periods. The September 1995 to August 1996 
period is capped by the annual compensation limit of $150,000 for 1995; 
the September 1996 to August 1997 period is capped by the annual 
compensation limit of $150,000 for 1996; and the September 1997 to 
August 1998 period is capped by the annual compensation limit of 
$160,000 for 1997. The average of these capped amounts is the annual 
compensation limit applicable in determining benefits for the 1998 year.
    Example 4. (a) Employer P is a partnership. Employer P maintains 
Plan Z, a profit-sharing plan that provides for an annual allocation of 
employer contributions of 15 percent of plan year compensation for 
employees other than self-employed individuals, and 13.0435 percent of 
plan year compensation for self-employed individuals. The plan year of 
Plan Z is the calendar year. The OBRA '93 effective date for Plan Z is 
January 1, 1994. In order to satisfy section 401(a)(17), as amended by 
OBRA '93, the plan provides that, beginning with the 1994 plan year, the 
plan year compensation used in determining the allocation of employer 
contributions for each employee may not exceed the annual limit in 
effect for the plan year under OBRA '93. Plan Z defines compensation for 
self-employed individuals (employees within the meaning of section 
401(c)(1)) as the self-employed individual's net profit from self-
employment attributable to Employer P minus the amount of the self-
employed individual's deduction under section 164(f) for one-half of 
self-employment taxes. Plan Z defines compensation for all other 
employees as wages within the meaning of section 3401(a). Employee C and 
Employee D are partners of Employer P and thus are self-employed 
individuals. Neither Employee C nor Employee D owns an interest in any 
other business or is a common-law employee in any business. For the 1994 
calendar year, Employee C has net profit from self-employment of 
$80,000, and Employee D has net profit from self-employment of $175,000. 
The deduction for Employee C under section 164(f) for one-half of self-
employment taxes is $4,828. The deduction for Employee D under section 
164(f) for one-half of self-employment taxes is $6,101
    (b) The plan year compensation under the plan formula for Employee C 
is $75,172

[[Page 191]]

($80,000 minus $4,828). The allocation of employer contributions under 
the plan allocation formula for 1994 for Employee C is $9,805 ($75,172 
(Employee C's plan year compensation for 1994) multiplied by 13.0435%). 
The plan year compensation under the plan formula before application of 
the annual limit under section 401(a)(17) for Employee D is $168,899 
($175,000 minus $6101). After application of the annual limit, the plan 
year compensation for the 1994 plan year for Employee D is $150,000 (the 
annual limit for 1994). Therefore, the allocation of employer 
contributions under the plan allocation formula for 1994 for Employee D 
is $19,565 ($150,000 (Employee D's plan year compensation after 
application of the annual limit for 1994) multiplied by 13.0435%).
    Example 5. The facts are the same as in Example 4, except that Plan 
Z provides that plan year compensation for self-employed individuals is 
defined as earned income within the meaning of section 401(c)(2) 
attributable to Employer P. In addition, Plan Z provides for an annual 
allocation of employer contributions of 15 percent of plan year 
compensation for all employees in the plan, including self-employed 
individuals, such as Employees C and D. The net profit from self-
employment for Employee C and the net profit from self-employment for 
Employee D are the same as provided in Example 4. However, the earned 
income of Employee C determined in accordance with section 401(c)(2) is 
$65,367 ($80,000 minus $4,828 minus $9,805). The earned income of 
Employee D determined in accordance with section 401(c)(2) is $146,869 
($175,000 minus $6,101 minus $22,030). Therefore, the allocation of 
employer contributions under the plan allocation formula for 1994 for 
Employee C is $9,805 ($65,367 (Employee C's plan year compensation for 
1994) multiplied by 15%). Employee D's earned income for 1994 does not 
exceed the 1994 annual limit of $150,000. Therefore, the allocation of 
employer contributions under the plan allocation formula for 1994 for 
Employee D is $22,030 ($146,869 (Employee D's plan year compensation for 
1994) multiplied by 15%).

    (c) Limit on compensation for nondiscrimination rules--(1) General 
rule. The annual compensation limit applies for purposes of applying the 
nondiscrimination rules under sections 401(a)(4), 401(a)(5), 401(l), 
401(k)(3), 401(m)(2), 403(b)(12), 404(a)(2) and 410(b)(2). The annual 
compensation limit also applies in determining whether an alternative 
method of determining compensation impermissibly discriminates under 
section 414(s)(3). Thus, for example, the annual compensation limit 
applies when determining a self-employed individual's total earned 
income that is used to determine the equivalent alternative compensation 
amount under Sec. 1.414(s)-1(g)(1). This paragraph (c) provides rules 
for applying the annual compensation limit for these purposes. For 
purposes of this paragraph (c), compensation means the compensation used 
in applying the applicable nondiscrimination rule.
    (2) Plan-year-by-plan-year requirement. For purposes of this 
paragraph (c), when applying an applicable nondiscrimination rule for a 
plan year, the compensation for each plan year taken into account is 
limited to the applicable annual compensation limit in effect for that 
year, and an employee's compensation for that plan year in excess of the 
limit is disregarded. Thus, if the nondiscrimination provision is 
applied on the basis of compensation determined over a period of more 
than one year (for example, average annual compensation), the annual 
compensation limit in effect for each of the plan years that is taken 
into account in determining the average applies to the respective plan 
year's compensation. In addition, if compensation for any plan year 
beginning prior to the OBRA '93 effective date is used when applying any 
nondiscrimination rule in a plan year beginning on or after the OBRA '93 
effective date, then the annual compensation limit for that prior year 
is the annual compensation limit for the first plan year beginning on or 
after the OBRA '93 effective date (generally $150,000).
    (3) Plan-by-plan limit. For purposes of this paragraph (c), the 
annual compensation limit applies separately to each plan (or group of 
plans treated as a single plan) of an employer for purposes of the 
applicable nondiscrimination requirement. For this purpose, the plans 
included in the testing group taken into account in determining whether 
the average benefit percentage test of Sec. 1.410(b)-5 is satisfied are 
generally treated as a single plan.
    (4) Application of limit to a plan year. The rules provided in 
paragraph (b)(3) of this section regarding the application of the limit 
to a plan year apply for purposes of this paragraph (c).
    (5) Limits on multiple employer and multiemployer plans. The rule 
provided

[[Page 192]]

in paragraph (b)(4) of this section regarding the application of the 
limit to multiple employer and multiemployer plans applies for purposes 
of this paragraph (c).
    (d) Effective date--(1) Statutory effective date--(i) General rule. 
Except as otherwise provided in this paragraph (d), section 401(a)(17) 
applies to a plan as of the first plan year beginning on or after 
January 1, 1989. For purposes of this section, statutory effective date 
generally means the first day of the first plan year that section 
401(a)(17) is applicable to a plan. In the case of governmental plans, 
statutory effective date means the first day of the first plan year for 
which the plan is not deemed to satisfy section 401(a)(17) by reason of 
paragraph (d)(4) of this section.
    (ii) Exception for collectively bargained plans. In the case of a 
plan maintained pursuant to one or more collective bargaining agreements 
between employee representatives and one or more employers ratified 
before March 1, 1986, section 401(a)(17) applies to allocations and 
benefit accruals for plan years beginning on or after the earlier of--
    (A) January 1, 1991; or
    (B) The later of January 1, 1989, or the date on which the last of 
the collective bargaining agreements terminates (determined without 
regard to any extension or renegotiation of any agreement occurring 
after February 28, 1986). For purposes of this paragraph (d)(1)(ii), the 
rules of Sec. 1.410(b)-10(a)(2) apply for purposes of determining 
whether a plan is maintained pursuant to one or more collective 
bargaining agreements, and any extension or renegotiation of a 
collective bargaining agreement, which extension or renegotiation is 
ratified after February 28, 1986, is to be disregarded in determining 
the date on which the agreement terminates.
    (2) OBRA '93 effective date--(i) In general. For purposes of this 
section, OBRA '93 effective date means the first day of the first plan 
year beginning on or after January 1, 1994, except as provided in this 
paragraph (d)(2).
    (ii) Exception for collectively bargained plans--(A) In general. In 
the case of a plan maintained pursuant to one or more collective 
bargaining agreements between employee representatives and 1 or more 
employers ratified before August 10, 1993, OBRA '93 effective date means 
the first day of the first plan year beginning on or after the earlier 
of--
    (1) The latest of--
    (i) January 1, 1994;
    (ii) The date on which the last of such collective bargaining 
agreements terminates (without regard to any extension, amendment, or, 
modification of such agreements on or after August 10, 1993); or
    (iii) In the case of a plan maintained pursuant to collective 
bargaining under the Railway Labor Act, the date of execution of an 
extension or replacement of the last of such collective bargaining 
agreements in effect on August 10, 1993; or
    (2) January 1, 1997.
    (B) Determination of whether plan is collectively bargained. For 
purposes of this paragraph (d)(2)(ii), the rules of Sec. 1.410(b)-
10(a)(2) apply for purposes of determining whether a plan is maintained 
pursuant to one or more collective bargaining agreements, except that 
August 10, 1993, is substituted for March 1, 1986, as the date before 
which the collective bargaining agreements must be ratified.
    (3) Regulatory effective date. This Sec. 1.401(a)(17)-1 applies to 
plan years beginning on or after the OBRA '93 effective date. However, 
in the case of a plan maintained by an organization that is exempt from 
income taxation under section 501(a), including plans subject to section 
403(b)(12)(A)(i) (nonelective plans), this Sec. 1.401(a)(17)-1 applies 
to plan years beginning on or after January 1, 1996. For plan years 
beginning before the effective date of these regulations and on or after 
the statutory effective date, a plan must be operated in accordance with 
a reasonable, good faith interpretation of section 401(a)(17), taking 
into account, if applicable, the OBRA '93 reduction to the annual 
compensation limit under section 401(a)(17).
    (4) Special rules for governmental plans--(i) Deemed satisfaction by 
governmental plans. In the case of governmental plans described in 
section 414(d), including plans subject to section 403(b)(12)(A)(i) 
(nonelective plans),

[[Page 193]]

section 401(a)(17) is considered satisfied for plan years beginning 
before the later of January 1, 1996, or 90 days after the opening of the 
first legislative session beginning on or after January 1, 1996, of the 
governing body with authority to amend the plan, if that body does not 
meet continuously. For purposes of this paragraph (d)(4), the term 
governing body with authority to amend the plan means the legislature, 
board, commission, council, or other governing body with authority to 
amend the plan.
    (ii) Transition rule for governmental plans--(A) In general. In the 
case of an eligible participant in a governmental plan (within the 
meaning of section 414(d)), the annual compensation limit under this 
section shall not apply to the extent that the application of the 
limitation would reduce the amount of compensation that is allowed to be 
taken into account under the plan below the amount that was allowed to 
be taken into account under the plan as in effect on July 1, 1993. Thus, 
for example, if a plan as in effect on July 1, 1993, determined benefits 
without any reference to a limit on compensation, then the annual 
compensation limit in effect under this section will not apply to any 
eligible participant in any future year.
    (B) Eligible participant. For purposes of this paragraph (d)(4)(ii), 
an eligible participant is an individual who first became a participant 
in the plan prior to the first day of the first plan year beginning 
after the earlier of--
    (1) The last day of the plan year by which a plan amendment to 
reflect the amendments made by section 13212 of OBRA '93 is both adopted 
and effective; or
    (2) December 31, 1995.
    (C) Plan must be amended to incorporate limits. This paragraph 
(d)(4)(ii) shall not apply to any eligible participant in a plan unless 
the plan is amended so that the plan incorporates by reference the 
annual compensation limit under section 401(a)(17), effective with 
respect to noneligible participants for plan years beginning after 
December 31, 1995 (or earlier, if the plan amendment so provides).
    (5) Benefits earned prior to effective date--(i) In general. 
Allocations under a defined contribution plan or benefits accrued under 
a defined benefit plan for plan years beginning before the statutory 
effective date are not subject to the annual compensation limit. 
Allocations under a defined contribution plan or benefits accrued under 
a defined benefit plan for plan years beginning on or after the 
statutory effective date, but before the OBRA '93 effective date, are 
subject to the annual compensation limit under paragraph (a)(2) of this 
section. However, these allocations or accruals are not subject to the 
OBRA '93 reduction to the annual compensation limit described in 
paragraph (a)(3) of this section.
    (ii) Allocation for a plan year. The allocations for a plan year 
include amounts described in Sec. 1.401(a)(4)-2(c)(ii) or Sec. 1.401(m)-
1(f)(6) plus the earnings, expenses, gains, and losses attributable to 
those amounts.
    (iii) Benefits accrued for years before the effective date. The 
benefits accrued for plan years prior to a specified date by any 
employee are the employee's benefits accrued under the plan, determined 
as if those benefits had been frozen (as defined in Sec. 1.401(a)(4)-
13(c)(3)(i)) as of the day immediately preceding such specified date. 
Thus, for example, benefits accrued for those plan years generally do 
not include any benefits accrued under an amendment increasing prior 
benefits that is adopted after the date on which the employee's benefits 
under the plan must be treated as frozen.
    (e) Determination of post-effective-date accrued benefits--(1) In 
general. The plan formula that is used to determine the amount of 
allocations or benefit accruals for plan years beginning on or after the 
dates described in paragraph (d)(1) or (2) must comply with section 
401(a)(17) as in effect on such date. This paragraph (e) provides rules 
for applying section 401(a)(17) in the case of section 401(a)(17) 
employees who accrue additional benefits under a defined benefit plan in 
a plan year beginning on or after the relevant effective date. Paragraph 
(e)(2) of this section contains definitions used in applying these 
rules. Paragraphs (e)(3) and (e)(4) of this section explain the 
application of the fresh-start rules in Sec. 1.401(a)(4)-13 to

[[Page 194]]

the determination of the accrued benefits of section 401(a)(17) 
employees.
    (2) Definitions. For purposes of this paragraph (e), the following 
definitions apply:
    (i) Section 401(a)(17) employee. An employee is a section 401(a)(17) 
employee as of a date, on or after the statutory effective date, if the 
employee's current accrued benefit as of that date is based on 
compensation for a year prior to the statutory effective date that 
exceeded the annual compensation limit for the first plan year beginning 
on or after the statutory effective date. In addition, an employee is a 
section 401(a)(17) employee as of a date, on or after the OBRA '93 
effective date, if the employee's current accrued benefit as of that 
date is based on compensation for a year prior to the OBRA '93 effective 
date that exceeded the annual compensation limit for the first plan year 
beginning on or after the OBRA '93 effective date. For this purpose, a 
current accrued benefit is not treated as based on compensation that 
exceeded the relevant annual compensation limit, if a plan makes a fresh 
start using the formula with wear-away described in Sec. 1.401(a)(4)-
13(c)(4)(ii), and the employee's accrued benefit determined under 
Sec. 1.401(a)(4)-13(c)(4)(ii)(B), taking into account the annual 
compensation limit, exceeds the employee's frozen accrued benefit (or, 
if applicable, the employee's adjusted accrued benefit) as of the fresh-
start date.
    (ii) Section 401(a)(17) fresh-start date. Section 401(a)(17) fresh-
start date means a fresh-start date as defined in Sec. 1.401(a)(4)-12 
not earlier than the last day of the last plan year beginning before the 
statutory effective date, and not later than the last day of the last 
plan year beginning before the effective date of these regulations.
    (iii) OBRA '93 fresh-start date. OBRA '93 fresh-start date means a 
fresh-start date as defined in Sec. 1.401(a)(4)-12 not earlier than the 
last day of the last plan year beginning before the OBRA '93 effective 
date, and not later than the last day of the last plan year beginning 
before the effective date of these regulations.
    (iv) Section 401(a)(17) frozen accrued benefit. Section 401(a)(17) 
frozen accrued benefit means the accrued benefit for any section 
401(a)(17) employee frozen (as defined in Sec. 1.401(a)(4)-13(c)(3)(i)) 
as of the last day of the last plan year beginning before the statutory 
effective date.
    (v) OBRA '93 frozen accrued benefit. OBRA '93 frozen accrued benefit 
means the accrued benefit for any section 401(a)(17) employee frozen (as 
defined in Sec. 1.401(a)(4)-13(c)(3)(i)) as of the OBRA '93 fresh-start 
date.
    (3) Application of fresh-start rules--(i) General rule. In order to 
satisfy section 401(a)(17), a defined benefit plan must determine the 
accrued benefit of each section 401(a)(17) employee by applying the 
fresh-start rules in Sec. 1.401(a)(4)-13(c). The fresh-start rules must 
be applied using a section 401(a)(17) fresh-start date and using the 
plan benefit formula, after amendment to comply with section 401(a)(17) 
and this section, as the formula applicable to benefit accruals in the 
current plan year. In addition, the fresh-start rules must be applied to 
determine the accrued benefit of each section 401(a)(17) employee using 
an OBRA '93 fresh-start date and using the plan benefit formula, after 
amendment to comply with the reduction in the section 401(a)(17) annual 
compensation limit described in paragraph (a)(3) of this section, as the 
formula applicable to benefit accruals in the current plan year.
    (ii) Consistency rules in Sec. 1.401(a)(4)-13(c) and (d)--(A) 
General rule. In applying the fresh-start rules of Sec. 1.401(a)(4)-
13(c) and (d), the group of section 401(a)(17) employees is a fresh-
start group. See Sec. 1.401(a)(4)-13(c)(5)(ii)(A). Thus, the consistency 
rules of those sections govern, unless otherwise provided. For example, 
if the plan is using a fresh-start date applicable to all employees and 
is not adjusting frozen accrued benefits under Sec. 1.401(a)(4)-13(d) 
for employees who are not section 401(a)(17) employees, then the frozen 
accrued benefits for section 401(a)(17) employees may not be adjusted 
under Sec. 1.401(a)(4)-13(d) or this paragraph (e).
    (B) Determination of adjusted accrued benefit. If the fresh-start 
rules of Sec. 1.401(a)(4)-13(c) and (d) are applied to determine the 
benefits of all employees after a fresh-start date, the plan will not 
fail to satisfy the consistency requirement of Sec. 1.401(a)(4)-
13(c)(5)(i)

[[Page 195]]

merely because the plan makes the adjustment described in 
Sec. 1.401(a)(4)-13(d) to the frozen accrued benefits of employees who 
are not section 401(a)(17) employees, but does not make the adjustment 
to the frozen accrued benefits of section 401(a)(17) employees. In 
addition, the plan does not fail to satisfy the consistency requirement 
of Sec. 1.401(a)(4)-13(c)(5)(i) merely because the plan makes the 
adjustment described in Sec. 1.401(a)(4)-13(d) for section 401(a)(17) 
employees on the basis of the compensation formula that was used to 
determine the frozen accrued benefit (as required under paragraph 
(e)(4)(iii) of this section) but makes the adjustment for employees who 
are not section 401(a)(17) employees on the basis of any other method 
provided in Sec. 1.401(a)(4)-13(d)(8).
    (4) Permitted adjustments to frozen accrued benefit of section 
401(a)(17) employees--(i) General rule. Except as otherwise provided in 
paragraphs (e)(4)(ii) and (iii) of this section, the rules in 
Sec. 1.401(a)(4)-13(c)(3) (permitting certain adjustments to frozen 
accrued benefits) apply to section 401(a)(17) frozen accrued benefits or 
OBRA '93 frozen accrued benefits.
    (ii) Optional forms of benefit. After either the section 401(a)(17) 
fresh-start date or the OBRA '93 fresh-start date, a plan may be amended 
either to provide a new optional form of benefit or to make an optional 
form of benefit available with respect to the section 401(a)(17) frozen 
accrued benefit or the OBRA '93 frozen accrued benefit, provided that 
the optional form of benefit is not subsidized. Whether an optional form 
is subsidized may be determined using any reasonable actuarial 
assumptions.
    (iii) Adjusting section 401(a)(17) accrued benefits--(A) In general. 
If the plan adjusts accrued benefits for employees under the rules of 
Sec. 1.401(a)(4)-13(d) as of a fresh-start date, the adjusted accrued 
benefit (within the meaning of section Sec. 1.401(a)(4)-13(d)) for each 
section 401(a)(17) employee must be determined after the fresh-start 
date by reference to the plan's compensation formula that was actually 
used to determine the frozen accrued benefit as of the fresh-start date. 
For this purpose, the plan's compensation formula incorporates the 
plan's underlying compensation definition and compensation averaging 
period. In making the adjustment, the denominator of the adjustment 
fraction described in Sec. 1.401(a)(4)-13(d)(8)(i) is the employee's 
compensation as of the fresh-start date using the plan's compensation 
formula as of that date and, in the case of an OBRA '93 fresh-start 
date, reflecting the annual compensation limits that applied as of the 
fresh-start date. The numerator of the adjustment fraction is the 
employee's updated compensation (i.e., compensation for the current plan 
year within the meaning of Sec. 1.401(a)(4)-13(d)(8)), determined after 
applying the annual compensation limits to each year's compensation that 
is used in the plan's compensation formula as of the fresh-start date. 
Similarly, in applying the alternative rule in Sec. 1.401(a)(4)-
13(d)(8)(v), the updated compensation that is substituted must be 
determined after applying the annual compensation limits to each year's 
compensation that is used in the plan's compensation formula. Thus, no 
adjustment will be permitted unless the updated compensation (determined 
after applying the annual compensation limit) exceeds the compensation 
that was used to determine the employee's frozen accrued benefit.
    (B) Multiple fresh starts. If a plan makes more than one fresh start 
with respect to a section 401(a)(17) employee, the employee's frozen 
accrued benefit as of the latest fresh-start date will either be 
determined by applying the current benefit formula to the employee's 
total years of service as of that fresh-start date or will consist of 
the sum of the employee's frozen accrued benefit (or adjusted accrued 
benefit (as defined in Sec. 1.401(a)(4)-13(d)(8)(i))) as of the previous 
fresh-start date plus additional frozen accruals since the previous 
fresh start. If the frozen accrued benefit consists of such a sum, in 
making the adjustments described in paragraph (e)(4)(iii)(A) of this 
section, separate adjustments must be made to that previously frozen 
accrued benefit (or adjusted accrued

[[Page 196]]

benefit) and the additional frozen accruals to the extent that the 
frozen accrued benefit and the additional accruals have been determined 
using different compensation formulas or different compensation limits 
(i.e., the section 401(a)(17) limit before and after the reduction in 
limit described in paragraph (a)(3) of this section). In this case, if 
the plan is applying the adjustment fraction of Sec. 1.401(a)(4)-
13(d)(8)(i), the denominator of the separate adjustment fraction for 
adjusting each portion of the frozen accrued benefit must reflect the 
actual compensation formula, and, if applicable, compensation limit, 
originally used for determining that portion. For example, the frozen 
accrued benefit of a section 401(a)(17) employee as of the OBRA '93 
fresh-start date may be based on the sum of the section 401(a)(17) 
frozen accrued benefit (determined without any annual compensation 
limit) plus benefit accruals in the years between the statutory 
effective date and the OBRA '93 effective date (based on compensation 
that was subject to the annual compensation limits for those years). In 
this example, in adjusting the section 401(a)(17) frozen accrued 
benefit, the denominator of the adjustment fraction does not reflect any 
annual compensation limit. Similarly, in adjusting the frozen accruals 
for years between the statutory effective date and the OBRA '93 
effective date, the denominator of the adjustment fraction reflects the 
level of the annual compensation limit in effect for those years.
    (5) Examples. The following examples illustrate the rules in this 
paragraph (e).

    Example 1. (a) Employer X maintains Plan Y, a calendar year defined 
benefit plan providing an annual benefit for each year of service equal 
to 2 percent of compensation averaged over an employee's high 3 
consecutive calendar years' compensation. Section 401(a)(17) applies to 
Plan Y in 1989. As of the close of the last plan year beginning before 
January 1, 1989 (i.e., the 1988 plan year), Employee A, with 5 years of 
service, had accrued a benefit of $25,000 which equals 10 percent (2 
percent multiplied by 5 years of service) of average compensation of 
$250,000. Employer X decides to comply with the provisions of this 
section for plan years before the effective date of this section. 
Employer X decides to make the amendment effective for plan years 
beginning on or after January 1, 1989, and uses December 31, 1988 as the 
section 401(a)(17) fresh-start date. Plan Y, as amended, provides that, 
in determining an employee's benefit, compensation taken into account is 
limited in accordance with the provisions of this section to the annual 
compensation limit under section 401(a)(17), and that, for section 
401(a)(17) employees, the employee's accrued benefit is the greater of
    (i) The employee's benefit under the plan's benefit formula (after 
the plan formula is amended to comply with section 401(a)(17)) as 
applied to the employee's total years of service; and
    (ii) The employee's accrued benefit as of December 31, 1988, 
determined as though the employee terminated employment on that date 
without regard to any plan amendments after that date.
    Employer X decides not to amend Plan Y to provide for the 
adjustments permitted under Sec. 1.401(a)(4)-13(d) to the accrued 
benefit of section 401(a)(17) employees as of December 31, 1988.
    (b) Under Plan Y, Employee A's accrued benefit at the end of 1989 is 
$25,000, which is the greater of Employee A's accrued benefit as of the 
last day of the 1988 plan year ($25,000), and $24,000, which is Employee 
A's benefit based on the plan's benefit formula applied to Employee A's 
total years of service ($200,000 multiplied by (2 percent multiplied by 
6 years of service)). The formula of Plan Y applicable to section 
401(a)(17) employees for calculating their accrued benefits for years 
after the section 401(a)(17) fresh-start date is the formula in 
Sec. 1.401(a)-13(c)(4)(ii) (formula with wear-away). The fresh-start 
formula is applied using a benefit formula for the 1989 plan year that 
satisfies section 401(a)(17) and this section, and the December 31, 1988 
fresh-start date used for the plan is a section 401(a)(17) fresh-start 
date within the meaning of paragraph (e)(2)(ii) of this section. Thus, 
Plan Y, as amended, satisfies paragraph (e)(3)(i) of this section for 
plan years commencing prior to the OBRA '93 effective date.
    Example 2. Assume the same facts as in Example 1, except that the 
plan formula provides that effective January 1, 1989, for section 
401(a)(17) employees, an employee's benefit will equal the sum of the 
employee's accrued benefit as of December 31, 1988 (determined as though 
the employee terminated employment on that date and without regard to 
any amendments after that date), and 2 percent of compensation averaged 
over an employee's high 3 consecutive years' compensation times years of 
service taking into account only years of service after December 31, 
1988. Thus, under Plan Y's formula, Employee A's accrued benefit as of 
December 31, 1989 is $29,000, which is equal to the sum of $25,000 
(Employee A's accrued benefit as of

[[Page 197]]

December 31, 1988) plus $4,000 ($200,000 multiplied by (2 percent 
multiplied by 1 year of service)). The formula of Plan Y applicable to 
section 401(a)(17) employees for calculating their accrued benefits for 
years after the section 401(a)(17) fresh-start date is the formula in 
Sec. 1.401(a)-13(c)(4)(i) (formula without wear-away). The fresh-start 
formula is applied using a benefit formula for the 1989 plan year that 
satisfies section 401(a)(17) and this section, and the December 31, 1988 
fresh-start date used for the plan is a section 401(a)(17) fresh-start 
date within the meaning of paragraph (e)(2)(ii) of this section. Thus, 
Plan Y, as amended, satisfies paragraph (e)(3)(i) of this section for 
plan years commencing prior to the OBRA '93 effective date.
    Example 3. (a) Assume the same facts as in Example 1, except that 
the plan formula provides that effective January 1, 1989, an employee's 
benefit equals the greater of the plan formulas in Example 1 and Example 
2. The formula of Plan Y applicable to section 401(a)(17) employees for 
calculating their accrued benefits for years after the section 
401(a)(17) fresh-start date is the formula in Sec. 1.401(a)-
13(c)(4)(iii) (formula with extended wear-away). The fresh-start formula 
is applied using a benefit formula for the 1989 plan year that satisfies 
section 401(a)(17) and this section, and the December 31, 1988 fresh-
start date used for the plan is a section 401(a)(17) fresh-start date 
within the meaning of paragraph (e)(2)(ii) of this section. Thus, Plan 
Y, as amended, satisfies paragraph (e)(3)(i) of this section for plan 
years commencing prior to the OBRA '93 effective date.
    (b) Assume that for each of the years 1991-93 Employee A's annual 
compensation under the plan compensation formula, disregarding the 
amendment to comply with section 401(a)(17) is $300,000. The annual 
compensation limit is adjusted to $222,220, $228,860, and $235,840 for 
plan years beginning January 1, 1991, 1992, and 1993, respectively. 
Because Employer X has decided to amend Plan Y to comply with the 
provisions of this section effective for plan years beginning on or 
after January 1, 1989, and has used December 31, 1988 as the section 
401(a)(17) fresh-start date, the compensation that may be taken into 
account for plan benefits in 1993 cannot exceed $228,973 (the average of 
$222,220, $228,860, and $235,840). Therefore, as of December 31, 1993, 
the benefit determined under the fresh-start formula with wear-away 
would be $45,795 ($228,973 multiplied by (2 percent multiplied by 10 
years of service)). The benefit determined under the fresh-start formula 
without wear-away would be $47,897, which is equal to $25,000 (Employee 
A's section 401(a)(17) frozen accrued benefit) plus $22,897 ($228,973 
multiplied by (2 percent multiplied by 5 years of service)). Because 
Employee A's accrued benefit is being determined using the fresh-start 
formula with extended wear-away, Employee A's accrued benefit as of 
December 31, 1993, is equal to $47,897, the greater of the two amounts.
    Example 4. (a) Assume the same facts as in Example 3, except that 
Plan Y satisfies Sec. 1.401(a)(4)-13(d)(3) through (d)(7) and that the 
amendment to Plan Y effective for plan years beginning after December 
31, 1988, also provided for adjustments to the section 401(a)(17) frozen 
accrued benefit in accordance with Sec. 1.401(a)(4)-13(d) using the 
fraction described in Sec. 1.401(a)(4)-13(d)(8)(i).
    (b) As of December 31, 1993, the numerator of Employee A's 
compensation fraction is $228,973 (the average of Employee A's annual 
compensation for 1991, 1992, and 1993, as limited by the respective 
annual limit for each of those years). The denominator of Employee A's 
compensation fraction determined in accordance with paragraph 
(e)(4)(iii) of this section is $250,000 (the average of Employee A's 
high 3 consecutive calendar year compensation as of December 31, 1988, 
determined without regard to section 401(a)(17)). Therefore, Employee 
A's compensation fraction is $228,973/$250,000. Because the compensation 
adjustment fraction is less than 1, Employee A's section 401(a)(17) 
frozen accrued benefit is not adjusted. Therefore, Employee A's accrued 
benefit as of December 31, 1993, would still be $47,897, which is equal 
to $25,000 (Employee A's section 401(a)(17) frozen accrued benefit) plus 
$22,897 ($228,973 multiplied by (2 percent multiplied by 5 years of 
service).
    Example 5. (a) Assume the same facts as in Example 3, except that as 
of January 1, 1994, Plan Y is amended to provide that benefits will be 
determined based on compensation of $150,000 (the limit in effect under 
section 401(a)(17) for plan years beginning on or after the OBRA '93 
effective date) and that for section 401(a)(17) employees, each 
employee's accrued benefit will be determined under Sec. 1.401(a)(4)-
13(c)(4)(i) (formula without wear-away) using December 31, 1993 as the 
OBRA '93 fresh-start date.
    (b) Assume that for each of the years 1996-98 Employee A's annual 
compensation under the plan compensation definition, disregarding the 
amendment to comply with section 401(a)(17), is $400,000. Assume that 
the annual compensation limit is first adjusted to $160,000 for plan 
years beginning on or after January 1, 1997, and is not adjusted for the 
plan year beginning on or after January 1, 1998. The compensation that 
may be taken into account for the 1998 plan year cannot exceed $156,667 
(the average of $150,000 for 1996, $160,000 for 1997, and $160,000 for 
1998).
    (c) Therefore, at the end of December 31, 1998, Employee A's accrued 
benefit is $63,564, which is equal to $47,897 (Employee A's OBRA '93 
frozen accrued benefit) plus $15,667 ($156,667 multiplied by (2 percent 
multiplied by 5 years of service)).
    Example 6. (a) Assume the same facts as in Example 5, except that, 
for the fresh-start

[[Page 198]]

group (in this case the section 401(a)(17) employees), the amendments to 
Plan Y provide for adjustments to the section 401(a)(17) frozen accrued 
benefit and the OBRA '93 frozen accrued benefit in accordance with 
Sec. 1.401(a)(4)-13(d) using the fraction described in Sec. 1.401(a)(4)-
13(d)(8)(i).
    (b) Employee A's frozen accrued benefit as of December 31, 1993, is 
adjusted as of December 31, 1998, as follows:
    (1) Employee A's frozen accrued benefit as of December 31, 1993, is 
the sum of Employee A's section 401(a)(17) frozen accrued benefit 
($25,000) and Employee A's frozen accruals for the years 1989-93 
($22,897).
    (2) The numerator of Employee A's adjustment fraction is $156,667 
(the average of $150,000, $160,000, and $160,000). The denominator of 
Employee A's adjustment fraction with respect to Employee A's section 
401(a)(17) frozen accrued benefit is $250,000, and the denominator of 
Employee A's adjustment fraction with respect to the rest of Employee 
A's frozen accrued benefit is $228,973 (the average of Employee A's 
annual compensation for 1991, 1992, and 1993, as limited by the 
respective annual limit for each of those years).
    (3) Employee A's section 401(a)(17) frozen accrued benefit as 
adjusted through December 31, 1998, remains $25,000. The compensation 
adjustment fraction determined in accordance with paragraph (e)(4)(iii) 
of this section is less than one ($156,667 divided by $250,000).
    (4) Employee A's frozen accruals for the years 1989-93, as adjusted 
through December 31, 1998, remain $22,897 because the adjustment 
fraction is less than one ($156,667 divided by $228,973).
    (5) Employee A's adjusted accrued benefit as of December 31, 1998, 
equals $47,897 (the sum of the $25,000 and $22,897 amounts from 
paragraphs (b)(3) and (b)(4), respectively, of this Example).
    (c) Employee A's section 401(a)(17) frozen accrued benefit will not 
be adjusted for compensation increases until the numerator of the 
fraction used to adjust that frozen accrued benefit exceeds the 
denominator of $250,000 used in determining those accruals.
    Similarly, the portion of Employee A's OBRA '93 frozen accrued 
benefit attributable to the frozen accruals for the years 1989-1993 will 
not be adjusted for compensation increases until the numerator of the 
fraction used to adjust those frozen accruals exceeds the denominator of 
$228,973 used in determining those accruals.

[T.D. 8547, 59 FR 32905, June 27, 1994]



Sec. 1.401(a)(26)-0  Table of contents.

    This section contains a listing of the headings of Secs. 1.401 
(a)(26)-1 through 1.401(a)(26)-9.

         Sec. 1.401(a)(26)-1  Minimum participation requirements

(a) General rule.
(b) Exceptions to section 401(a)(26).
    (1) Plans that do not benefit any highly compensated employees.
    (2) Multiemployer plans.
    (i) In general.
    (ii) Multiemployer plans covering noncollectively bargained 
employees.
    (A) In general.
    (B) Special testing rule.
    (3) Certain underfunded defined benefit plans.
    (i) In general.
    (ii) Eligible plans.
    (iii) Actuarial certification.
    (iv) Cessation of all benefit accruals.
    (4) Section 401(k) plan maintained by employers that include certain 
governmental or tax-exempt entities.
    (5) Certain acquisitions or dispositions.
    (i) General rule.
    (ii) Special rule for transactions that occur in the plan year prior 
to the first plan year to which section 401(a)(26) applies.
    (iii) Definition of ``acquisition'' or ``disposition''.
(c) Additional rules.

             Sec. 1.401(a)(26)-2  Minimum participation rule

(a) General rule.
(b) Frozen plans.
(c) Plan.
(d) Disaggregation of certain plans.
    (1) Mandatory disaggregation.
    (i) ESOPs and non-ESOPs.
    (ii) Plans maintained by more than one employer.
    (A) Multiple employer plans.
    (B) Multiemployer plans.
    (iii) Defined benefit plans with other arrangements.
    (A) In general.
    (B) Examples.
    (iv) Plans benefiting employees of qualified separate lines of 
business.
    (2) Permissive disaggregation.
    (i) Plans benefiting collectively bargained employees.
    (ii) Plans benefiting otherwise excludable employees.

Sec. 1.401(a)(26)-3  Rules applicable to a defined benefit plan's prior 
                            benefit structure

(a) General rule.
(b) Prior benefit structure.
(c) Testing a prior benefit structure.
    (1) General rule.
    (2) Meaningful benefits.
(d) Multiemployer plan rule.

              Sec. 1.401(a)(26)-4  Testing former employees

(a) Scope.
(b) Minimum participation rule for former employees.

[[Page 199]]

(c) Special rule.
(d) Excludable former employees.
    (1) General rule.
    (2) Exception.

         Sec. 1.401(a)(26)-5  Employees who benefit under a plan

(a) Employees benefiting under a plan.
    (1) In general.
    (2) Sequential or concurrent benefit offset arrangements.
    (i) In general.
    (ii) Offset by sequential or grandfathered benefits.
    (iii) Concurrent benefit offset arrangements.
    (A) General rule.
    (B) Special rules for certain section 414(n) employer-recipients.
(b) Former employees benefiting under a plan.

                Sec. 1.401(a)(26)-6  Excludable employees

(a) In general.
(b) Excludable employees.
    (1) Minimum age and service exclusions.
    (i) In general.
    (ii) Plans benefiting otherwise excludable employees.
    (iii) Examples.
    (2) Certain air pilots.
    (3) Certain nonresident aliens.
    (i) In general.
    (ii) Special treaty rule.
    (4) Employees covered pursuant to a collective bargaining agreement.
    (5) Employees not covered pursuant to a collective bargaining 
agreement.
    (6) Examples.
    (7) Certain terminating employees.
    (i) In general.
    (ii) Hours of service.
    (8) Employees of qualified separate lines of business.
(c) Former employees.
    (1) In general.
    (2) Employees terminated before a specified date.
    (3) Previously excludable employees.
    (4) Vested accrued benefits eligible for mandatory distribution.
(d) Certain police or firefighters.

                  Sec. 1.401(a)(26)-7  Testing methods

(a) Testing on each day of the plan year.
(b) Simplified testing method.
(c) Retroactive correction.

                    Sec. 1.401(a)(26)-8  Definitions

Collective bargaining agreement.
Collectively bargained employee.
Covered by a collective bargaining agreement.
Defined benefit plan.
Defined contribution plan.
Employee.
Employer.
ESOP.
Former employee.
Highly compensated employee.
Highly compensated former employee.
Multiemployer plan.
Noncollectively bargained employee.
Nonhighly compensated employee.
Nonhighly compensated former employee.
Plan.
Plan year.
Professional employee.
Section 401(k) plan.
Section 401(m) plan.

        Sec. 1.401(a)(26)-9  Effective dates and transition rules

(a) In general.
(b) Transition rules.
    (1) Governmental plans and certain section 403(b) annuities.
    (2) Early retirement ``window-period'' benefits.
    (3) Employees who do not benefit because of a minimum-period-of-
service requirement or a last-day requirement.
    (4) Certain plan terminations.
    (i) In general.
    (ii) Exception.
    (5) ESOPs and non-ESOPs.
(c) Waiver of excise tax on reversions.
    (1) In general.
    (2) Termination date.
    (3) Failure to satisfy section 401(a)(26).
(d) Special rule for collective bargaining agreements.

[T.D. 8375, 56 FR 63413, Dec. 4, 1991]



Sec. 1.401(a)(26)-1  Minimum participation requirements.

    (a) General rule. A plan is a qualified plan for a plan year only if 
the plan satisfies section 401(a)(26) for the plan year. A plan that 
satisfies any of the exceptions described in paragraph (b) of this 
section passes section 401(a)(26) automatically for the plan year. A 
plan that does not satisfy one of the exceptions in paragraph (b) of 
this section must satisfy Sec. 1.401(a)(26)-2(a). In addition, a defined 
benefit plan must satisfy Sec. 1.401(a)(26)-3 with respect to its prior 
benefit structure. Finally, a defined benefit plan that benefits former 
employees (for example, a defined benefit plan that is amended to 
provide an ad hoc cost-of-living adjustment to former employees) must 
separately satisfy Sec. 1.401(a)(26)-4 with respect to its former 
employees.
    (b) Exceptions to section 401(a)(26)--(1) Plans that do not benefit 
any highly compensated employees. A plan, other than a

[[Page 200]]

frozen defined benefit plan as defined in Sec. 1.401(a)(26)-2(b), 
satisfies section 401(a)(26) for a plan year if the plan is not a top-
heavy plan under section 416 and the plan meets the following 
requirements:
    (i) The plan benefits no highly compensated employee or highly 
compensated former employee of the employer; and
    (ii) The plan is not aggregated with any other plan of the employer 
to enable the other plan to satisfy section 401(a)(4) or 410(b). The 
plan may, however, be aggregated with the employer's other plans for 
purposes of the average benefit percentage test in section 
410(b)(2)(A)(ii).
    (2) Multiemployer plans--(i) In genera1. The portion of a 
multiemployer plan that benefits only employees included in a unit of 
employees covered by a collective bargaining agreement may be treated as 
a separate plan that satisfies section 401(a)(26) for a plan year.
    (ii) Multiemployer plans covering noncollectively bargained 
employees--(A) In general. The rule provided in paragraph (b)(2)(i) does 
not apply to the portion of a multiemployer plan that benefits employees 
who are not included in any collective bargaining unit covered by a 
collective bargaining agreement. Thus, the portion of the plan 
benefiting these employees must separately satisfy section 401(a)(26).
    (B) Special testing rule. A multiemployer plan that benefits 
employees who are not included in any collective bargaining unit covered 
by a collective bargaining agreement satisfies section 401(a)(26) if the 
plan benefits 50 employees. For purposes of this special testing rule, 
employees who are included in a unit of employees covered by a 
collective bargaining agreement may be included in determining whether 
the plan benefits 50 employees.
    (3) Certain underfunded defined benefit plans--(i) In general. A 
defined benefit plan is deemed to satisfy section 401(a)(26) for a plan 
year if all of the conditions of paragraphs (b)(3)(ii) through 
(b)(3)(iv) of this section are satisfied with respect to the plan for 
the plan year.
    (ii) Eligible plans. This condition is satisfied for a plan year 
only if the plan is subject to Title IV of the Employee Retirement 
Income Security Act of 1974 (ERISA) for the plan year or, if the plan is 
not a Title IV plan under ERISA, it is not a top-heavy plan within the 
meaning of section 416. This condition does not apply for plan years 
beginning before January 1, 1992.
    (iii) Actuarial certification. This condition is satisfied for a 
plan year only if the employer's timely filed actuarial report, as 
required by section 6059, evidences that the plan does not have 
sufficient assets to satisfy all liabilities under the plan (determined 
in accordance with section 401(a)(2)).
    (iv) Cessation of all benefit accruals. This condition is satisfied 
for a plan year only if, for the plan year, no employee or former 
employee is benefiting within the meaning of Sec. 1.401(a)(26)-5(a) or 
(b). For this purpose, an employee is not treated as benefiting solely 
by reason of being a non-key employee receiving minimum benefit accruals 
required by section 416.
    (4) Section 401(k) plan maintained by employers that include certain 
governmental or tax-exempt entities. Section 401(k)(4)(B) prevents 
certain State and local governments and tax-exempt organizations from 
maintaining a qualified cash or deferred arrangement. A plan (or portion 
of a plan) that is either a section 401(k) plan or a section 401(m) plan 
that is provided under the same general arrangement as a section 401(k) 
plan may be treated as a separate plan that satisfies section 401(a)(26) 
for a plan year if the following requirements are satisfied:
    (i) The section 401(k) plan is maintained by an employer who has 
employees precluded from being eligible employees under the arrangement 
by reason of section 401(k)(4)(B), and
    (ii) More than 95 percent of the employees of the employer who are 
not precluded from being eligible employees under a section 401(k) plan 
by reason of section 401(k)(4)(B) benefit under the section 401(k) plan.
    (5) Certain acquisitions or dispositions--(i) General rule. Rules 
similar to the rules prescribed under section 410(b)(6)(C) apply under 
section 401(a)(26). Pursuant to these rules, the requirements of section 
401(a)(26) are treated as satisfied for certain plans of an employer 
involved in an acquisition

[[Page 201]]

or disposition (transaction) for the transition period. The transition 
period begins on the date of the transaction and ends on the last day of 
the first plan year beginning after the date of the transaction.
    (ii) Special rule for transactions that occur in the plan year prior 
to the first plan year to which section 401(a)(26) applies. Where there 
has been a transaction described in section 410(b)(6)(C) in the plan 
year prior to the first plan year in which section 401(a)(26) applies to 
a plan, the plan satisfies section 401(a)(26) for the transition period 
if the plan benefited 50 employees or 40 percent of the employees of the 
employer immediately prior to the transaction.
    (iii) Definition of ``acquisition'' and ``disposition.'' For 
purposes of this paragraph (b)(5), the terms ``acquisition'' and 
``disposition'' refer to an asset or stock acquisition, merger, or other 
similar transaction involving a change in employer of the employees of a 
trade or business.
    (c) Additional rules. The Commissioner may, in revenue rulings, 
notices, and other guidance of general applicability, provide any 
additional rules that may be necessary or appropriate in applying the 
minimum participation requirements of section 401(a)(26).

[T.D. 8375, 56 FR 63413, Dec. 4, 1991, as amended by T.D. 8487, 58 FR 
46838, Sept. 3, 1993]



Sec. 1.401(a)(26)-2  Minimum participation rule.

    (a) General rule. A plan satisfies this paragraph (a) for a plan 
year only if the plan benefits at least the lesser of--
    (1) 50 employees of the employer, or
    (2) 40 percent of the employees of the employer.
    (b) Frozen plans. A plan under which no employee or former employee 
benefits (within the meaning of Sec. 1.401(a)(26)-5 (a) or (b)), is a 
frozen plan for purposes of this section and satisfies paragraph (a) of 
this section automatically. Thus, a frozen defined contribution plan 
satisfies section 401(a)(26) automatically and a frozen defined benefit 
plan satisfies section 401(a)(26) for a plan year by satisfying the 
prior benefit structure requirements in Sec. 1.401(a)(26)-3. For 
purposes of the rule in this paragraph (b), a defined benefit plan that 
provides only the minimum benefits for non-key employees required by 
section 416 is a frozen defined benefit plan.
    (c) Plan. ``Plan'' means a plan within the meaning of Sec. 1.401(b)-
7 (a) and (b), after the application of the mandatory disaggregation 
rules of paragraph (d)(1) of this section and, if applicable, the 
permissive disaggregation rules of paragraph (d)(2) of this section.
    (d) Disaggregation of certain plans--(1) Mandatory disaggregation--
(i) ESOPs and non-ESOPs. The portion of a plan that is an ESOP and the 
portion of the plan that is not an ESOP are treated as separate plans 
for purposes of section 401(a)(26), except as otherwise permitted under 
Sec. 54.4975-11(e) of this Chapter.
    (ii) Plans maintained by more than one employer--(A) Multiple 
employer plans. If a plan benefits employees of more than one employer 
and those employees are not included in a unit of employees covered by 
one or more collective bargaining agreements, the plan is a multiple 
employer plan. A multiple employer plan is treated as separate plans, 
each of which is maintained by a separate employer and must separately 
satisfy section 401(a)(26) by reference only to that employer's 
employees.
    (B) Multiemployer plans. The portion of a multiemployer plan that 
benefits employees who are included in one or more units of employees 
covered by one or more collective bargaining agreements and the portion 
of that plan that benefits employees who are not included in a unit of 
employees covered pursuant to any collective bargaining agreement are 
treated as separate plans. The portion of a multiemployer plan that 
benefits employees who are not included in a unit of employees covered 
by a collective bargaining agreement is a multiple employer plan as 
described in paragraph (d)(1)(ii)(A) of this section. This paragraph 
(d)(1)(ii)(B) does not apply to the extent that the special testing rule 
in Sec. 1.401(a)(26)-1(b)(2)(ii) applies. Also, this paragraph 
(d)(1)(B)(2) does not apply for purposes of prior benefit structure 
testing under Sec. 1.401 (a)(26)-3.
    (iii) Defined benefit plans with other arrangements--(A) In general. 
A defined benefit plan is treated as comprising

[[Page 202]]

separate plans if, under the facts and circumstances, there is an 
arrangement (either under or outside the plan) that has the effect of 
providing any employee with a greater interest in a portion of the 
assets of a plan in a way that has the effect of creating separate 
accounts. Separate plans are not created, however, merely because a 
partnership agreement provides for allocation among partners, in 
proportion to their partnership interests, of either the cost of funding 
the plan or surplus assets upon plan termination.
    (B) Examples. The following examples illustrate certain situations 
in which other arrangements relating to a defined benefit plan are or 
are not treated as creating separate plans:

    Example 1. Employer A maintains a defined benefit plan under which 
each highly compensated employee can direct the investment of the 
portion of the plan's assets that represents the accumulated 
contributions with respect to that employee's plan benefits. In 
addition, by agreement outside the plan, if the product of the 
employee's investment direction exceeds the value needed to fund that 
employee's benefits, Employer A agrees to make a special payment to the 
participant. In this case, each separate portion of the pool of assets 
over which an employee has investment authority is a separate plan for 
the employee.
    Example 2. Employer B is a partnership that maintains a defined 
benefit plan. The partnership agreement provides that, upon termination 
of the plan, a special allocation of any excess plan assets after 
reversion is made to the partnership on the basis of partnership share. 
This arrangement does not create separate plans with respect to the 
partners.

    (iv) Plans benefiting employees of qualified separate lines of 
business. If an employer is treated as operating qualified separate 
lines of business for purposes of section 401(a)(26) in accordance with 
Sec. 1.414(r)-1(b), the portion of a plan that benefits employees of one 
qualified separate line of business is treated as a separate plan from 
the portions of the same plan that benefit employees of the other 
qualified separate lines of business of the employer. See 
Secs. 1.414(r)-1(c)(3) and 1.414(r)-9 (separate application of section 
401(a)(26) to the employees of a qualified separate line of business). 
The rule in this paragraph (d)(6) does not apply to a plan that is 
tested under the special rule for employer-wide plans in Sec. 1.414(r)-
1(c)(3)(ii) for a plan year.
    (2) Permissive disaggregation--(i) Plans benefiting collectively 
bargained employees. For purposes of section 401(a)(26), an employer may 
treat the portion of a plan that benefits employees who are included in 
a unit of employees covered by a collective bargaining agreement as a 
plan separate from the portion of a plan that benefits employees who are 
not included in such a collective bargaining unit. This paragraph 
(d)(2)(i) applies separately to each collective bargaining agreement. 
Thus, for example, the portion of a plan that benefits employees 
included in a unit of employees covered by one collective bargaining 
agreement may be treated as a plan that is separate from the portion of 
the plan that benefits employees included in a unit of employees covered 
by another collective bargaining agreement.
    (ii) Plans benefiting otherwise excludable employees. If an employer 
applies section 401(a)(26) separately to the portion of a plan that 
benefits only employees who satisfy age and service conditions under the 
plan that are lower than the greatest minimum age and service conditions 
permissible under section 410(a), the plan is treated as comprising 
separate plans, one benefiting the employees who have not satisfied the 
lower minimum age and service but not the greatest minimum age and 
service conditions permitted under section 410(a) and one benefiting 
employees who have satisfied the greatest minimum age and service 
conditions permitted under section 410(a). See Sec. 1.401(a)(26)-
6(b)(1)(ii) for rules concerning testing of otherwise excludable 
employees.

[T.D. 8375, 56 FR 63414, Dec. 4, 1991]



Sec. 1.401(a)(26)-3  Rules applicable to a defined benefit plan's prior benefit structure.

    (a) General rule. A defined benefit plan that does not meet one of 
the exceptions in Sec. 1.401(a)(26)-1(b) must satisfy paragraph (c) of 
this section with respect to its prior benefit structure. Defined 
contribution plans are not subject to this section.
    (b) Prior benefit structure. Each defined benefit plan has only one 
prior

[[Page 203]]

benefit structure, and all accrued benefits under the plan as of the 
beginning of a plan year (including benefits rolled over or transferred 
to the plan) are included in the prior benefit structure for the year.
    (c) Testing a prior benefit structure--(1) General rule. A plan's 
prior benefit structure satisfies this paragraph if the plan provides 
meaningful benefits to a group of employees that includes the lesser of 
50 employees or 40 percent of the employer's employees. Thus, a plan 
satisfies the requirements of this paragraph (c) if at least 50 
employees or 40 percent of the employer's employees currently accrue 
meaningful benefits under the plan. Alternatively, a plan satisfies this 
paragraph if at least 50 employees and former employees or 40 percent of 
the employer's employees and former employees have meaningful accrued 
benefits under the plan.
    (2) Meaningful benefits. Whether a plan is providing meaningful 
benefits, or whether individuals have meaningful accrued benefits under 
a plan, is determined on the basis of all the facts and circumstances. 
The relevant factors in making this determination include, but are not 
limited to, the following: the level of current benefit accruals; the 
comparative rate of accruals under the current benefit formula compared 
to prior rates of accrual under the plan; the projected accrued benefits 
under the current benefit formula compared to accrued benefits as of the 
close of the immediately preceding plan year; the length of time the 
current benefit formula has been in effect; the number of employees with 
accrued benefits under the plan; and the length of time the plan has 
been in effect. A rule for determining whether an offset plan provides 
meaningful benefits is provided in Sec. 1.401(a)(26)-5(a)(2). A plan 
does not satisfy this paragraph (c) if it exists primarily to preserve 
accrued benefits for a small group of employees and thereby functions 
more as an individual plan for the small group of employees or for the 
employer.
    (d) Multiemployer plan rule. A multiemployer plan is deemed to 
satisfy the prior benefit structure rule in paragraph (c)(1) of this 
section for a plan year if the multiemployer plan provides meaningful 
benefits to at least 50 employees for a plan year, or 50 employees have 
meaningful accrued benefits under the plan. For purposes of this 
paragraph, all employees benefiting under the multiemployer plan may be 
considered, whether or not these employees are included in a unit of 
employees covered pursuant to any collective bargaining agreement.

[T.D. 8375, 56 FR 63415, Dec. 4, 1991]



Sec. 1.401(a)(26)-4  Testing former employees.

    (a) Scope. This section applies to any defined benefit plan that 
benefits former employees in a plan year within the meaning of 
Sec. 1.401(a)(26)-5(b) and does not meet one of the exceptions in 
Sec. 1.401(a)(26)-1(b).
    (b) Minimum participation rule for former employees. Except as set 
forth in paragraph (c) of this section, a plan that is subject to this 
section must benefit at least the lesser of:
    (1) 50 former employees of the employer, or
    (2) 40 percent of the former employees of the employer.
    (c) Special rule. A plan satisfies the minimum participation rule in 
paragraph (b) of this section if the plan benefits at least five former 
employees, and if either:
    (1) More than 95 percent of all former employees with vested accrued 
benefits under the plan benefit under the plan for the plan year, or
    (2) At least 60 percent of the former employees who benefit under 
the plan for the plan year are nonhighly compensated former employees.
    (d) Excludable former employees--(1) General rule. Whether a former 
employee is an excludable former employee for purposes of this section 
is determined under Sec. 1.401(a)(26)-6(c).
    (2) Exception. Solely for purposes of paragraph (c) of this section, 
the rule in Sec. 1.401(a)(26)-6(c)(4) (regarding vested accrued benefits 
eligible for mandatory distribution) does not apply to any former 
employee having a vested accrued benefit. Thus, a former employee who 
has a vested accrued benefit is not an excludable former employee merely 
because that vested accrued benefit does not exceed $3,500.

[T.D. 8375, 56 FR 63416, Dec. 4, 1991]

[[Page 204]]



Sec. 1.401(a)(26)-5  Employees who benefit under a plan.

    (a) Employees benefiting under a plan--(1) In general. Except as 
provided in paragraph (a)(2) of this section, an employee is treated as 
benefiting under a plan for a plan year if and only if, for that plan 
year, the employee would be treated as benefiting under the provisions 
of Sec. 1.410(b)-3(a), without regard to Sec. 1.410(b)-3(a)(iv).
    (2) Sequential or concurrent benefit offset arrangements--(i) In 
general. An employee is treated as accruing a benefit under a plan that 
includes an offset or reduction of benefits that satisfies either 
paragraph (a)(2)(ii) or (a)(2)(iii) of this section if either the 
employee accrues a benefit under the plan for the year, or the employee 
would have accrued a benefit if the offset or reduction portion of the 
benefit formula were disregarded. In addition, an employee is treated as 
accruing a meaningful benefit for purposes of prior benefit structure 
testing under Sec. 1.401(a)(26)-3 if the employee would have accrued a 
meaningful benefit if the offset or reduction portion of the benefit 
formula were disregarded.
    (ii) Offset by sequential or grandfathered benefits. An offset or 
reduction of benefits under a defined benefit plan satisfies this 
paragraph (a)(2) if the benefit formula provides that an employee will 
not accrue additional benefits under the current portion of the benefit 
formula until the employee has accrued, under such portion, a benefit in 
excess of such employee's benefit under one or more formulas in effect 
for prior years that are based wholly on prior years of service. The 
prior benefit may have accrued under the same or a separate plan, may be 
provided under the same or a separate plan and may relate to service 
with the same or previous employers. Benefits will not fail to be 
treated as based wholly on prior years if they are based, directly or 
indirectly, on compensation earned after such prior years (including 
compensation earned in the current year), if they are adjusted to 
reflect increases in the section 415 limitations, or if they are 
increased to provide an ad hoc cost of living adjustment designed to 
adjust, in whole or in part, for inflation. Furthermore, benefits do not 
fail to be treated as based wholly on prior years merely because the 
benefits (e.g., early retirement benefits) are subject to an age or 
years-of-service condition and, in applying the condition or conditions, 
the current and prior years are taken into account.
    (iii) Concurrent benefit offset arrangements--(A) General rule. An 
offset or reduction of benefits under a defined benefit plan satisfies 
the requirements of this paragraph (a)(2)(iii) if the benefit formula 
provides a benefit that is offset or reduced by contributions or 
benefits under another plan that is maintained by the same employer and 
the following additional requirements are met:
    (1) The contributions or benefits under a plan that are used to 
offset or reduce the benefits under the positive portion of the fomu1a 
being tested accrued under such other plan;
    (2) The employees who benefit under the formula being tested also 
benefit under the other plan on a reasonable and uniform basis; and
    (3) The contributions or benefits under the plan that are used to 
offset or reduce the benefits under the formula being tested are not 
used to offset or reduce that employee's benefits under any other plan 
or any other formula.
    (B) Special rules for certain section 414(n) employer-recipients. 
The same employer requirement in the concurrent benefit offset rule in 
paragraph (a)(2)(iii)(A) of this section is waived for certain section 
414(n) employer-recipients. Under this exception, an employer-recipient 
(within the meaning of sections 414 (n) and (o)) may treat contributions 
or benefits under a plan maintained by a leasing organization as 
contributions or benefits accrued under the recipient organization plan 
provided the following requirements are met: the employer-recipient 
maintains a plan covering leased employees (which employees are treated 
as employees of the employer-recipient within the meaning of sections 
414(n)(2) and 414(o)(2)); the leased employees are also covered under a 
plan maintained by the leasing organization; and contributions or 
benefits under the plan maintained by the employer-recipient are offset 
or

[[Page 205]]

reduced by the contributions or benefits under the leasing organization 
plan that are attributable to service with the recipient organization. 
Also, for purposes of the benefiting condition requirement in paragraph 
(a)(2)(iii)(A)(2) of this section, the employees of the employer-
recipient who are not leased from the leasing organization are not 
required to benefit under the plan of the leasing organization.
    (b) Former employees benefiting under a plan. A former employee is 
treated as benefiting for a plan year if and only if the former employee 
would be treated as benetiting under the rules in Sec. 1.410(b)-3(b).

[T.D. 8375, 56 FR 63416, Dec. 4, 1991]



Sec. 1.401(a)(26)-6  Excludable employees.

    (a) In general. For purposes of applying section 401(a)(26) with 
respect to either employees, former employees, or both employees and 
former employees, as applicable, all employees other than excludable 
employees described in paragraph (b) of this section, all former 
employees other than excludable former employees described in paragraph 
(c) of this section, or both, as the case may be, must be taken into 
account. Except as specifically provided otherwise in this section, the 
rules of this section are applied by reference only to the particular 
plan and must be applied on a uniform and consistent basis.
    (b) Excludable employees. An employee is an excludable employee if 
the employee is covered by one or more of the following exclusions:
    (1) Minimum age and service exclusions--(i) In general. If a plan 
applies minimum age and service eligibility conditions permissible under 
section 410(a)(1) and excludes all employees who do not meet those 
conditions from benefiting under the plan, tbn all employees who fail to 
satisfy those conditions may be treated as excludable employees with 
respect to that plan. An employee is treated as meeting the age and 
service requirements on the date any employee with the same age and 
service would be eligible to commence participation in the plan, as 
provided in section 410(b)(4)(C).
    (ii) Plans benefiting otherwise excludable employees. An employer 
may treat a plan benefiting otherwise excludable employees as two 
separate plans, one for the otherwise excludable employees and one for 
the other employees benefiting under the plan. The effect of this rule 
is that employees who would be excludable under paragraph (b)(1) of this 
section (applied without regard to section 410(a)(1)(B)), but for the 
fact that the plan does not apply the greatest permissible minimum age 
and service conditions, may be treated as excludable employees with 
respect to the plan. This treatment is only available if each of the 
following conditions is satisfied:
    (A) The plan under which the otherwise excludable employees benefit 
also benefits employees who are not otherwise excludable.
    (B) The plan under which the otherwise excludable employees benefit 
satisfies section 401(a)(26), both by reference only to otherwise 
excludable employees and by reference only to employees who are not 
otherwise excludable.
    (C) The contributions or benefits provided to the otherwise 
excludable employees (expressed as percentages of compensation) are not 
greater than the contributions or benefits provided to the employees who 
are not otherwise excludable under the plan.
    (D) No highly compensated employee is included in the group of 
otherwise excludable employees for more than one plan year.
    (iii) Examples. The following examples illustrate some of the 
minimum-age-and-service exclusion requirements:

    Example 1. Employer X maintains a defined contribution plan, Plan X, 
under which employees who have not completed 1 year of service are not 
eligible to participate. Employer X has six employees. Two of the 
employees participate in Plan X. The other four employees have not 
completed 1 year of service and are therefore not eligible to 
participate in Plan X. The four employees who have not completed 1 year 
of service are excludable employees and may be disregarded for purposes 
of applying the minimum participation test. Therefore, Plan X satisfies 
section 401(a)(26) because both of the two employees who must be 
considered are participants in Plan X.
    Example 2. Employer Y has 100 employees and maintains two plans, 
Plan 1 and Plan 2. Plan 1 provides that employees who have not

[[Page 206]]

completed 1 year of service are not eligible to participate. Plan 2 has 
no minimum age or service requirement. Twenty of Y's employees do not 
meet the minimum service requirement under Plan 1. Each plan satisfies 
the ratio test under section 410(b)(1)(B). In testing Plan 1 to 
determine whether it satisfies section 401(a)(26), the 20 employees not 
meeting the minimum age and service requirement under Plan 1 are treated 
as excludable employees. In testing Plan 2 to determine whether it 
satisfies section 401(a)(26), no employees are treated as excludable 
employees because Plan 2 does not have a minimum age or service 
requirement.

    (2) Certain air pilots. An employee who is excluded from 
consideration under section 410(b)(3)(B) (relating to certain air 
pilots) may be treated as an excludable employee.
    (3) Certain nonresident aliens--(i) In general. An employee who is 
excluded from consideration under section 410(b)(3)(C) (relating to 
certain nonresident aliens) may be treated as an excludable employee.
    (ii) Special treaty rule. In addition, an employee who is a 
nonresident alien (within the meaning of section 7701(b)(1)(B)) and who 
does receive earned income (within the meaning of section 911(d)(2)) 
from the employer that constitutes income from sources within the United 
States (within the meaning of section 861(a)(3)) is permitted to be 
excluded, if all of the employee's earned income from the employer from 
sources within the United States is exempt from United States income tax 
under an applicable income tax convention. This paragraph (b)(3)(ii) 
applies only if all employees described in the preceding sentence are so 
excluded.
    (4) Employees covered pursuant to a collective bargaining agreement. 
When testing a plan benefiting only noncollectively bargained employees, 
an employee who is excluded from consideration under section 
410(b)(3)(A) (exclusion for employees included in a unit of employees 
covered by a collective bargaining agreement) may be treated as an 
excludable employee. This rule may be applied separately to each 
collective bargaining agreement. See Sec. 1.401(a)(26)-8 for the 
definitions of the terms ``collective bargaining agreement'', 
``collectively bargained employee,'' and ``covered pursuant to a 
collective bargaining agreement''.
    (5) Employees not covered pursuant to a collective bargaining 
agreement. When testing a plan that benefits only employees who are 
included in a group of employees who are covered pursuant to a 
collective bargaining agreement, an employee who is not included in the 
group of employees who are covered by the collective bargaining 
agreement may be treated as an excludable employee.
    (6) Examples. The following examples illustrate the excludable 
employee rules that relate to employees covered pursuant to collective 
bargaining agreements. For purposes of these examples assume that no 
other exclusion rules are applicable.

    Example 1. Employer W has 70 collectively bargained employees and 30 
non-collectively bargained employees. Employer W maintains Plan W, which 
benefits only the 30 non-collectively bargained employees. The 70 
collectively bargained employees may be treated as excludable employees 
and thus may be disregarded in applying section 401(a)(26) to Plan W.
    Example 2. Assume the same facts as Example I, except that the 
Commissioner has determined that the employee representative is not a 
bona fide employee representative under section 7701(a)(46) and thus 
there are no ``collectively bargained employees.'' In this case, all 
employees of W must be considered in determining whether section 
401(a)(26) is met.
    Example 3. Employer X has collectively bargained employees and 70 
noncollectively bargained employees. Employer X maintains Plan X, which 
benefits only the 30 collectively bargained employees. Employer X may 
treat the non-collectively bargained employees as excludable employees 
and disregard them in applying section 401(a)(26) to the collectively 
bargained plan.
    Example 4. Assume the same facts as Example 3, except that the 
Commissioner has determined that the employee representative is not a 
bona fide employee representative under section 7701(a)(46) and thus 
there is no recognized collective bargaining agreement. In this case, 
Employer X may not treat the non-collectively bargained employees of X 
as excludable employees.
    Example 5. Assume the same facts as Example 3, except that 3 percent 
of the 30 collectively bargained employees are professionals. In this 
case, Employer X may not treat the non-collectively bargained employees 
of X as excludable employees.

[[Page 207]]

    Example 6. Employer Y has 100 collectively bargained employees. 
Thirty of Y's employees are represented by Collective Bargaining Unit 1 
and covered under Plan 1. Seventy of Y's employees are represented by 
Collective Bargaining Unit 2 and covered under Plan 2. For purposes of 
testing Plan 1, the employees of Collective Bargaining Unit 2 may be 
treated as excludable employees. Similarly, for purposes of testing Plan 
2, the employees of Collective Bargaining Unit 1 may be treated as 
excludable employees.

    (7) Certain terminating employees--(i) In general. An employee may 
be treated as an excludable employee for a plan year with respect to a 
particular plan if--
    (A) The employee does not benefit under the plan for the plan year,
    (B) The employee is eligible to participate in the plan,
    (C) The plan has a minimum period of service requirement or a 
requirement that an employee be employed on the last day of the plan 
year (last-day requirement) in order for an employee to accrue a benefit 
or receive an allocation for the plan year,
    (D) The employee fails to accrue a benefit or receive an allocation 
under the plan solely because of the failure to satisfy the minimum 
period of service or last-day requirement,
    (E) The employee terminates employment during the plan year with no 
more than 500 hours of service, and the employee is not an employee as 
of the last day of the plan year (for purposes of this paragraph 
(b)(7)(i)(E), a plan that uses the elapsed time method of determining 
years of service may use either 91 consecutive calendar days or 3 
consecutive calendar months instead of 500 hours of service, provided it 
uses the same convention for all employees during a plan year), and
    (F) If this paragraph (b)(7) is applied with respect to any employee 
with respect to a plan for a plan year, it is applied with respect to 
all employees with respect to the plan for the plan year.
    (ii) Hours of service. For purposes of this paragraph (b)(7), the 
term ``hour of service'' has the same meaning as set forth in 29 CFR 
2530.200b-2 under the general method of crediting service for the 
employee. If one of the equivalencies set forth in 29 CFR 2530.200b-3 is 
used for crediting service under the plan, the 500-hour requirement must 
be adjusted accordingly.
    (8) Employees of qualified separate lines of business. If an 
employer is treated as operating qualified separate lines of business 
for purposes of section 401(a)(26) in accordance with Sec. 1.414(r)-
1(b), in testing a plan that benefits employees of one qualified 
separate line of business, the employees of the other qualified separate 
lines of business of the employer are treated as excludable employees. 
See Secs. 1.414(r)-1(c)(3) and 1.414(r)-9 (separate application of 
section 401(a)(26) to the employees of a qualified separate line of 
business). The rule in this paragraph (b)(8) does not apply to a plan 
that is tested under the special rule for employer-wide plans in 
Sec. 1.414(r)-l(c)(3)(ii) for a plan year.
    (c) Former employees--(1) In general. For purposes of applying 
section 401(a)(26) with respect to former employees, all former 
employees of the employer are taken into account, except that the 
employer may treat a former employee described in paragraph (c)(2) 
through (c)(4) of this section as an excludable former employee. If any 
of the former employee exclusion rules under paragraphs (c)(2) through 
(c)(4) of this section is applied, it must be applied to all former 
employees for the plan year on a consistent basis.
    (2) Employees terminated before a specified date. The employer may 
treat a former employee as excludable if--
    (i) The former employee became a former employee either prior to 
January 1, 1984, or prior to the tenth calendar year preceding the 
calendar year in which the current plan year begins, and
    (ii) The former employee became a former employee in a calendar year 
that precedes the earliest calendar year in which any former employee 
who benefits under the plan in the current plan year became a former 
employee.
    (3) Previously excludable employees. The employer may treat a former 
employee as excludable if the former employee was an excludable employee 
(or would have been an excludable employee if these regulations had been 
in effect) under the rules of paragraphs (a) and (b) of this section 
during the plan

[[Page 208]]

year in which the former employee became a former employee. If the 
employer treats a former employee as excludable pursuant to this 
paragraph (c)(3), the former employee is not taken into account with 
respect to a plan even if the former employee is benefiting under the 
plan.
    (4) Vested accrued benefits eligible for mandatory distribution. A 
former employee may be treated as an excludable former employee if the 
present value of the former employee's vested accrued benefit does not 
exceed $3,500. This determination is made in accordance with the rules 
of sections 411(a)(11) and 417(e).
    (d) Certain police or firefighters. An employer may apply section 
401(a)(26) separately with respect to any classification of qualified 
public safety employees for whom a separate plan is maintained. Thus, 
for purposes of testing a separate plan covering a class of qualified 
public safety employees, all employees who are not in that 
classification are treated as excludable employees. Also, such employees 
need not be taken into account in determining whether or not any other 
plan satisfies section 401(a)(26). For purposes of this paragraph (d), 
qualified public safety employee means any employee of any police 
department or fire department organized and operated by a State or 
political subdivision if the employee provides police protection, 
firefighting services, or emergency medical services for any area within 
the jurisdiction of a State or political subdivision.

[T.D. 8375, 56 FR 63416, Dec. 4, 1991]



Sec. 1.401(a)(26)-7  Testing methods.

    (a) Testing on each day of the plan year. A plan satisfies section 
401(a)(26) for a plan year only if the plan satisfies section 401(a)(26) 
on each day of the plan year. An employee benefits on a day if the 
employee is a participant for such day and the employee benefits under 
the plan for the year under the rules in Sec. 1.401(a)(26)-5.
    (b) Simplified testing method. A plan is treated as satisfying the 
requirements of paragraph (a) of this section if it satisfies section 
401(a)(26) on any single plan day during the plan year, but only if that 
day is reasonably representative of the employer's workforce and the 
plan's coverage. A plan does not have to be tested on the same day each 
plan year.
    (c) Retroactive correction. If a plan fails to satisfy section 
401(a)(26) for a plan year, the plan may be retroactively amended during 
the same period and under the same conditions as provided for in 
Sec. 1.401(a)(4)-11(g)(3) through (g)(5) to satisfy section 401(a)(26). 
A plan merger that occurs by the end of the period provided in 
Sec. l.401(a)(4)-11(g)(3)(iv) is treated solely for purposes of section 
401(a)(26) as if it were effective as of the first day of the plan year. 
The rule of this paragraph (c) may be illustrated by the following 
example.

    Example. Assume that an employer with 500 employees maintains two 
defined contribution plans. Plan A benefits 45 employees. Plan B 
benefits 50 employees. Immediately before the end of the period provided 
for in Sec. 1.401(a)(4)-11(g)(3)(iv), the employer expands coverage 
under Plan A to benefit 20 more employees retroactively for the plan 
year. Thus, Plan A satisfies paragraph (a) of this section for the plan 
year. Alternatively, before the end of the period provided for in 
Sec. 1.401(a)(4)-11(g)(3)(iv), or later if a later period is applicable 
under section 401(b), the employer could merge Plan A with Plan B to 
satisfy section 401(a)(26).

[T.D. 8375, 56 FR 63418, Dec. 4, 1991]



Sec. 1.401(a)(26)-8  Definitions.

    In applying this section and Secs. 1.401(a)(26)-1 through 
1.401(a)(26)-9 the definitions in this section govern unless otherwise 
provided.
    Collective bargaining agreement. Collective bargaining agreement 
means an agreement that the Secretary of Labor finds to be a collective 
bargaining agreement between employee representatives and the employer 
that satisfies Sec. 301.7701-17T. Employees described in section 
413(b)(8) who are employees of the union or the plan and are treated as 
employees of an employer are not employees covered pursuant to a 
collective bargaining agreement for purposes of section 401(a)(26) 
unless the employees are actually covered pursuant to such an agreement.
    Collectively bargained employee. Collectively bargained employee 
means a collectively bargained employee within the meaning of 
Sec. 1.410(b)-6(d)(2).

[[Page 209]]

    Covered by a collective bargaining agreement. Covered by a 
collective bargaining agreement means covered by a collective bargaining 
agreement within the meaning of Sec. 1.410(b)-6(d)(2)(iii).
    Defined benefit plan. Defined benefit plan means a defined benefit 
plan within the meaning of Sec. 1.410(b)-9.
    Defined contribution plan. Defined contribution plan means a defined 
contribution plan within the meaning of Sec. 1.410(b)-9.
    Employee. Employee means an employee, within the meaning of 
Sec. 1.410(b)-9.
    Employer. Employer means the employer within the meaning of 
Sec. 1.410(b)-9.
    ESOP. ESOP means an employee stock ownership plan within the meaning 
of section 4975(e)(7) or a tax credit employee stock ownership plan 
within the meaning of section 409(a).
    Former employee. Former employee means a former employee within the 
meaning of Sec. 1.410(b)-9.
    Highly compensated employee. Highly compensated employee means an 
employee who is highly compensated within the meaning of section 414(q).
    Highly compensated former employee. Highly compensated former 
employee means a former employee who is highly compensated within the 
meaning of section 414(q)(9).
    Multiemployer plan. Multiemployer plan means a multiemployer plan 
within the meaning of section 414(f).
    Noncollectively bargained employee. Noncollectively bargained 
employee means an employee who is not a collectively bargained employee.
    Nonhighly compensated employee. Nonhighly compensated employee' 
means an employee who is not a highly compensated employee.
    Nonhighly compensated former employee. Nonhighly compensated former 
employee means a former employee who is not a highly compensated former 
employee.
    Plan. Plan means plan as defined in Sec. 1.401(a)(26)-2(c).
    Plan year. Plan year means the plan year of the plan as defined in 
the written plan document. In the absence of a specifically designated 
plan year, the plan year is deemed to be the calendar year.
    Professional employee. Professional employee means a professional 
employee as defined in Sec. 1.410(b)-9.
    Section 401(k) plan. Section 401(k) plan means a plan consisting of 
elective contributions described in Sec. 1.401(k)-1 (g)(3) under a 
qualified cash or deferred arrangement described in Sec. 1.401(k)-
1(a)(4)(i).
    Section 401(m) plan. Section 401(m) plan means a plan consisting of 
employee contributions described in Sec. 1.401(m)-1(f)(6) or matching 
contributions described in Sec. 1.401(m)-1(f)(12), or both.

[T.D. 8375, 56 FR 63418, Dec. 4, 1991]



Sec. 1.401(a)(26)-9  Effective dates and transition rules.

    (a) In general. Except as provided in paragraphs (b), (c), and (d) 
of this section, section 401(a)(26) and the regulations thereunder apply 
to plan years beginning on or after January 1, 1989.
    (b) Transition rules--(1) Governmental plans and certain section 
403(b) annuities. Section 401(a)(26) is treated as satisfied for plan 
years beginning before the later of January 1, 1996, or 90 days after 
the opening of the first legislative session beginning on or after 
January 1, 1996, of the governing body with authority to amend the plan, 
if that body does not meet continuously, in the case of governmental 
plans described in section 414(d), including plans subject to section 
403(b)(12)(A)(i) (nonelective plans). For purposes of this paragraph 
(b)(1), the term ``governing body with authority to amend the plan'' 
means the legislature, board, commission, council, or other governing 
body with authority to amend the plan.
    (2) Early retirement ``window-period'' benefits. Early retirement 
benefits available under a plan only to employees who retire within a 
limited period of time, not to exceed one year, are treated as 
satisfying section 401(a)(26) if such benefits are provided under plan 
terms that were adopted and in effect on or before March 14, 1989.
    (3) Employees who do not benefit because of a minimum-period-of-
service requirement or a last-day requirement. For the first plan year 
beginning after December 31, 1988, and before January 1, 1990, employees 
who are eligible to participate under the plan and who fail to accrue a 
benefit solely because of the

[[Page 210]]

failure to satisfy either a minimum-period-of-service requirement of 
1000 hours of service or less or a last-day requirement may be treated 
as benefiting under the plan.
    (4) Certain plan terminations--(i) In general. Except as provided in 
paragraph (b)(4)(ii) of this section, if a plan terminates after section 
401(a)(26) becomes effective with respect to the plan (as determined 
under paragraph (a) of this section), the plan is not treated as a 
qualified plan upon termination unless it complies with section 
401(a)(26) and the regulations thereunder (to the extent they are 
applicable) for all periods for which section 401(a)(26) is effective 
with respect to the plan.
    (ii) Exception. Notwithstanding paragraphs (a) and (b)(4)(i) of this 
section, a plan does not fail to be treated as a qualified plan upon 
termination merely because the plan fails to satisfy the requirements of 
section 401(a)(26) and the regulations thereunder if the plan is 
terminated with a termination date on or before December 31, 1989, and 
either of the following conditions is satisfied:
    (A) In the case of a defined benefit plan, no highly compensated 
employee has an accrued benefit under the plan exceeding the lesser of 
either the benefit the employee had accrued as of the close of the last 
plan year beginning before January 1, 1989, or the benefit the employee 
would have accrued as of the close of the last plan year under the terms 
of the plan in effect and applicable with respect to the employee on 
December 13, 1988.
    (B) In the case of a defined contribution plan, no highly 
compensated employee receives a contribution allocation for any plan 
year beginning after December 31, 1988. For this purpose, a contribution 
allocation with respect to an employee for a plan year beginning before 
January 1, 1989, may be treated as a contribution allocation for a plan 
year beginning after December 31, 1988, if the allocation for the prior 
year exceeds the allocation that the employee would have received for 
such year under the terms of the plan in effect and applicable with 
respect to the employee on December 13, 1988. An allocation of 
forfeitures to highly compensated employees with respect to 
contributions made for plan years beginning before January 1, 1988, does 
not cause a defined contribution plan to fail to satisfy the conditions 
of this paragraph (b)(4)(ii)(B).
    (5) ESOPs and non-ESOPs. Notwithstanding paragraph (a) of this 
section and Sec. 54.4975-11(a)(5) of this Chapter, an employer may treat 
the rule in Sec. 1.401(a)(26)-2(d)(1)(i), regarding mandatory 
disaggregation of ESOPs and non-ESOPs as not effective for plan years 
beginning before January 1, 1990.
    (c) Waiver of excise tax on reversions--(1) In general. Pursuant to 
section 1112(e)(3) of the Tax Reform Act of 1986 (TRA '86), if certain 
conditions are satisfied, a waiver of the excise tax under section 4980 
applies with respect to any employer reversion that occurs by reason of 
the termination or merger of a plan before the first year to which 
section 401(a)(26) applies to the plan. In general, the applicable 
conditions are that the plan must have been in existence on August 16, 
1986; that if section 401(a)(26) was in effect for the plan year 
including August 16, 1986, the plan would have failed to satisfy the 
requirements of section 401(a)(26) and would have continued to fail the 
requirements at all times thereafter; that the plan satisfies the 
applicable conditions in paragraph (b)(4)(ii)(A) or (B) of this section; 
and that certain requirements regarding asset or liability transfers and 
mergers and spinoffs involving the plan after August 16, 1986, are 
satisfied.
    (2) Termination date. An employer reversion with respect to a plan 
is eligible for the section 4980 excise tax waiver only if the employer 
reversion occurs by reason of the termination of the plan with a 
termination date prior to the first plan year for which section 
401(a)(26) applies to the plan. Solely for purposes of this waiver, the 
employer reversion is treated as satisfying this paragraph (c)(2) even 
though the plan's termination date is during the first plan year for 
which section 401(a)(26) applies to the plan if the plan's termination 
date is on or before May 31, 1989. If the termination date occurs in the 
first plan year for which section 401(a)(26) applied to the plan and the 
employer receives a reversion that is eligible for the waiver of the 
section

[[Page 211]]

4980 tax, the plan is subject to the interest rate restriction set forth 
in section 11 12(e)(3)(B) of TRA `86 as amended.
    (3) Failure to satisfy section 401(a)(26). An employer reversion 
with respect to a plan is eligible for the excise tax waiver only if the 
plan was in existence on August 16, 1986, and, if section 401(a)(26) had 
applied to the plan for the plan year including such date, the plan 
would have failed to satisfy section 401(a)(26) for the plan year and 
continuously thereafter until the plan's termination or merger. For 
purposes of this paragraph (c)(3), a plan is treated as though it would 
have failed to satisfy section 401(a)(26) before such section actually 
applied to the plan only if the plan (as defined under section 414(1)) 
failed to benefit at least the lesser of 50 employees or 40 percent of 
the employer's employees. In general, this determination is to be made 
on the basis of only the applicable statutory provisions, without regard 
to the regulations under section 401(a)(26). Thus, for example, the 
prior benefit structure rules in Sec. 1.401(a)(26)-3 do not apply in 
determining whether a plan would have failed to satisfy section 
401(a)(26) for plan years beginning prior to the effective date of 
section 401(a)(26) with respect to the plan.
    (d) Special rule for collective bargaining agreements. In the case 
of a plan maintained pursuant to one or more collective bargaining 
agreements (as defined in Sec. 1.401(a)(26)-8(a)) that were ratified 
before March 1, 1986, section 401(a)(26) and the regulations thereunder 
shall not apply to plan years beginning before the earlier of--
    (1) January 1, 1991, or
    (2) The later of--
    (i) January 1, 1989, or
    (ii) The date on which the last of such collective bargaining 
agreements terminates. For purposes of this paragraph (d), any extension 
or renegotiation of any collective bargaining agreement that is ratified 
after February 28, 1986, is disregarded in determining the date on which 
such collective bargaining agreement terminates.

[T.D. 8375, 56 FR 63419, Dec. 4, 1991, as amended by T.D. 8487, 58 FR 
46838, Sept. 3, 1993]



Sec. 1.401(a)(31)-1  Requirement to offer direct rollover of eligible rollover distributions; questions and answers.

    The following questions and answers relate to the qualification 
requirement imposed by section 401(a)(31) of the Internal Revenue Code 
of 1986, pertaining to the direct rollover option for eligible rollover 
distributions from pension, profit-sharing, and stock bonus plans. 
Section 401(a)(31) was added by section 522(a) of the Unemployment 
Compensation Amendments of 1992, Public Law 102-318, 106 Stat. 290 
(UCA). For additional UCA guidance under sections 402(c), 402(f), 
403(b)(8) and (10), and 3405(c), see Secs. 1.402(c)-2, 1.402(f)-1, and 
1.403(b)-2, and Sec. 31.3405(c)-1 of this chapter, respectively.

                            List of Questions

    Q-1: What are the direct rollover requirements under section 
401(a)(31)?
    Q-2: Does section 401(a)(31) require that a qualified plan permit a 
direct rollover to be made to a qualified trust that is not part of a 
defined contribution plan?
    Q-3: What is a direct rollover that satisfies section 401(a)(31), 
and how is it accomplished?
    Q-4: Is providing a distributee with a check for delivery to an 
eligible retirement plan a reasonable means of accomplishing a direct 
rollover?
    Q-5: Is an eligible rollover distribution that is paid to an 
eligible retirement plan in a direct rollover currently includible in 
gross income or subject to 20-percent withholding?
    Q-6: What procedures may a plan administrator prescribe for electing 
a direct rollover, and what information may the plan administrator 
require a distributee to provide when electing a direct rollover?
    Q-7: May the plan administrator treat a distributee as having made 
an election under a default procedure where the distributee does not 
affirmatively elect to make or not make a direct rollover within a 
certain time period?
    Q-8: May the plan administrator establish a deadline after which the 
distributee may not revoke an election to make or not make a direct 
rollover?
    Q-9: Must the plan administrator permit a distributee to elect to 
have a portion of an eligible rollover distribution paid to an eligible 
retirement plan in a direct rollover and to have the remainder of that 
distribution paid to the distributee?

[[Page 212]]

    Q-10: Must the plan administrator allow a distributee to divide an 
eligible rollover distribution into two or more separate distributions 
to be paid in direct rollovers to two or more eligible retirement plans?
    Q-11: Will a plan satisfy section 401(a)(31) if the plan 
administrator does not permit a distributee to elect a direct rollover 
if his or her eligible rollover distributions during a year are 
reasonably expected to total less than $200?
    Q-12: Is a plan administrator permitted to treat a distributee's 
election to make or not make a direct rollover with respect to one 
payment in a series of periodic payments as applying to all subsequent 
payments in the series?
    Q-13: Is the eligible retirement plan designated by a distributee to 
receive a direct rollover distribution required to accept the 
distribution?
    Q-14: For purposes of applying the plan qualification requirements 
of section 401(a), is an eligible rollover distribution that is paid to 
an eligible retirement plan in a direct rollover a distribution and 
rollover or is it a transfer of assets and liabilities?
    Q-15: Must a direct rollover option be provided for an eligible 
rollover distribution that is in the form of a plan loan offset amount?
    Q-16: Must a direct rollover option be provided for an eligible 
rollover distribution from a qualified plan distributed annuity 
contract?
    Q-17: What assumptions may a plan administrator make regarding 
whether a benefit is an eligible rollover distribution?
    Q-18: When must a qualified plan be amended to comply with section 
401(a)(31)?

                          Questions and Answers

    Q-1: What are the direct rollover requirements under section 
401(a)(31)?
    A-1: (a) General rule. To satisfy section 401(a)(31), added by UCA, 
a plan must provide that if the distributee of any eligible rollover 
distribution elects to have the distribution paid directly to an 
eligible retirement plan, and specifies the eligible retirement plan to 
which the distribution is to be paid, then the distribution will be paid 
to that eligible retirement plan in a direct rollover described in Q&A-3 
of this section. Thus, the plan must give the distributee the option of 
having his or her distribution paid in a direct rollover to an eligible 
retirement plan specified by the distributee. For purposes of section 
401(a)(31) and this section, eligible rollover distribution has the 
meaning set forth in section 402(c)(4) and Sec. 1.402(c)-2, Q&A-3 
through Q&A-10 and Q&A-14, except as otherwise provided in Q&A-2 of this 
section, eligible retirement plan has the meaning set forth in section 
402(c)(8)(B) and Sec. 1.402(c)-2, Q&A-2.
    (b) Related Internal Revenue Code provisions--(1) Mandatory 
withholding. If a distributee of an eligible rollover distribution does 
not elect to have the eligible rollover distribution paid directly from 
the plan to an eligible retirement plan in a direct rollover under 
section 401(a)(31), the eligible rollover distribution is subject to 20-
percent income tax withholding under section 3405(c). See 
Sec. 31.3405(c)-1 of this chapter for guidance concerning the 
withholding requirements applicable to eligible rollover distributions.
    (2) Notice requirement. Section 402(f) requires the plan 
administrator of a qualified plan to provide, within a reasonable period 
of time before making an eligible rollover distribution, a written 
explanation to the distributee of the distributee's right to elect a 
direct rollover and the withholding consequences of not making that 
election. The explanation also is required to provide certain other 
relevant information relating to the taxation of distributions. See 
Sec. 1.402(f)-1 for guidance concerning the written explanation required 
under section 402(f).
    (3) Section 403(b) annuities. Section 403(b)(10) provides that 
requirements similar to those imposed by section 401(a)(31) apply to 
annuities described in section 403(b). See Sec. 1.403(b)-2 for guidance 
concerning the direct rollover requirements for distributions from 
annuities described in section 403(b).
    (c) Effective date--(1) Statutory effective date. Section 401(a)(31) 
applies to eligible rollover distributions made on or after January 1, 
1993.
    (2) Regulatory effective date. This section applies to eligible 
rollover distributions made on or after October 19, 1995. For eligible 
rollover distributions made on or after January 1, 1993 and before 
October 19, 1995, Sec. 1.401(a)(31)-1T (as it appeared in the April 1, 
1995 edition of 26 CFR part 1), applies. However, for any distribution 
made on or after January 1, 1993 but before October 19, 1995, a plan may 
satisfy section 401(a)(31) by substituting any or all

[[Page 213]]

provisions of this section for the corresponding provisions of 
Sec. 1.401(a)(31)-1T, if any.
    Q-2: Does section 401(a)(31) require that a qualified plan permit a 
direct rollover to be made to a qualified trust that is not part of a 
defined contribution plan?
    A-2: No. Section 401(a)(31)(D) limits the types of qualified trusts 
that are treated as eligible retirement plans to defined contribution 
plans that accept eligible rollover distributions. Therefore, although a 
plan is permitted, at a participant's election, to make a direct 
rollover to any type of eligible retirement plan, as defined in section 
402(c)(8)(B) (including a defined benefit plan), a plan will not fail to 
satisfy section 401(a)(31) solely because the plan will not permit a 
direct rollover to a qualified trust that is part of a defined benefit 
plan. In contrast, if a distributee elects a direct rollover of an 
eligible rollover distribution to an annuity plan described in section 
403(a), that distribution must be paid to the annuity plan, even if the 
recipient annuity plan is a defined benefit plan.
    Q-3: What is a direct rollover that satisfies section 401(a)(31), 
and how is it accomplished?
    A-3: A direct rollover that satisfies section 401(a)(31) is an 
eligible rollover distribution that is paid directly to an eligible 
retirement plan for the benefit of the distributee. A direct rollover 
may be accomplished by any reasonable means of direct payment to an 
eligible retirement plan. Reasonable means of direct payment include, 
for example, a wire transfer or the mailing of a check to the eligible 
retirement plan. If payment is made by check, the check must be 
negotiable only by the trustee of the eligible retirement plan. If the 
payment is made by wire transfer, the wire transfer must be directed 
only to the trustee of the eligible retirement plan. In the case of an 
eligible retirement plan that does not have a trustee (such as a 
custodial individual retirement account or an individual retirement 
annuity), the custodian of the plan or issuer of the contract under the 
plan, as appropriate, should be substituted for the trustee for purposes 
of this Q&A-3, and Q&A-4 of this section.
    Q-4: Is providing a distributee with a check for delivery to an 
eligible retirement plan a reasonable means of accomplishing a direct 
rollover?
    A-4: Providing the distributee with a check and instructing the 
distributee to deliver the check to the eligible retirement plan is a 
reasonable means of direct payment, provided that the check is made 
payable as follows: [Name of the trustee] as trustee of [name of the 
eligible retirement plan]. For example, if the name of the eligible 
retirement plan is ``Individual Retirement Account of John Q. Smith,'' 
and the name of the trustee is ``ABC Bank,'' the payee line of a check 
would read ``ABC Bank as trustee of Individual Retirement Account of 
John Q. Smith.'' Unless the name of the distributee is included in the 
name of the eligible retirement plan, the check also must indicate that 
it is for the benefit of the distributee. If the eligible retirement 
plan is not an individual retirement account or an individual retirement 
annuity, the payee line of the check need not identify the trustee by 
name. For example, the payee line of a check for the benefit of 
distributee Jane Doe might read, ``Trustee of XYZ Corporation Savings 
Plan FBO Jane Doe.''
    Q-5: Is an eligible rollover distribution that is paid to an 
eligible retirement plan in a direct rollover currently includible in 
gross income or subject to 20-percent withholding?
    A-5: No. An eligible rollover distribution that is paid to an 
eligible retirement plan in a direct rollover is not currently 
includible in the distributee's gross income under section 402(c) and is 
exempt from the 20-percent withholding imposed under section 3405(c)(2). 
However, when any portion of the eligible rollover distribution is 
subsequently distributed from the eligible retirement plan, that portion 
will be includible in gross income to the extent required under section 
402, 403, or 408.
    Q-6: What procedures may a plan administrator prescribe for electing 
a direct rollover, and what information may the plan administrator 
require a distributee to provide when electing a direct rollover?

[[Page 214]]

    A-6: (a) Permissible procedures. Except as otherwise provided in 
paragraph (b) of this Q&A-6, the plan administrator may prescribe any 
procedure for a distributee to elect a direct rollover under section 
401(a)(31), provided that the procedure is reasonable. The procedure may 
include any reasonable requirement for information or documentation from 
the distributee in addition to the items of adequate information 
specified in Sec. 31.3405(c)-1(b), Q&A-7 of this chapter. For example, 
it would be reasonable for the plan administrator to require that the 
distributee provide a statement from the designated recipient plan that 
the plan will accept the direct rollover for the benefit of the 
distributee and that the recipient plan is, or is intended to be, an 
individual retirement account, an individual retirement annuity, a 
qualified annuity plan described in section 403(a), or a qualified trust 
described in section 401(a), as applicable. In the case of a designated 
recipient plan that is a qualified trust, it also would be reasonable 
for the plan administrator to require a statement that the qualified 
trust is not excepted from the definition of an eligible retirement plan 
by section 401(a)(31)(D) (i.e., is not a defined benefit plan).
    (b) Impermissible procedures. A plan will fail to satisfy section 
401(a)(31) if the plan administrator prescribes any unreasonable 
procedure, or requires information or documentation, that effectively 
eliminates or substantially impairs the distributee's ability to elect a 
direct rollover. For example, it would effectively eliminate or 
substantially impair the distributee's ability to elect a direct 
rollover if the recipient plan required the distributee to obtain an 
opinion of counsel stating that the eligible retirement plan receiving 
the rollover is a qualified plan or individual retirement account. 
Similarly, it would effectively eliminate or substantially impair the 
distributee's ability to elect a direct rollover if the distributing 
plan required a letter from the recipient eligible retirement plan 
stating that, upon request by the distributing plan, the recipient plan 
will automatically return any direct rollover amount that the 
distributing plan advises the recipient plan was paid incorrectly. It 
would also effectively eliminate or substantially impair the 
distributee's ability to elect a direct rollover if the distributing 
plan required, as a condition for making a direct rollover, a letter 
from the recipient eligible retirement plan indemnifying the 
distributing plan for any liability arising from the distribution.
    Q-7: May the plan administrator treat a distributee as having made 
an election under a default procedure where the distributee does not 
affirmatively elect to make or not make a direct rollover within a 
certain time period?
    A-7: Yes, the plan administrator may establish a default procedure 
whereby any distributee who fails to make an affirmative election is 
treated as having either made or not made a direct rollover election. 
However, the plan administrator may not make a distribution under any 
default procedure unless the distributee has received an explanation of 
the default procedure and an explanation of the direct rollover option 
as required under section 402(f) and Sec. 1.402(f)-1, Q&A-1 and unless 
the timing requirements described in Sec. 1.402(f)-1, Q&A-2 and Q&A-3 
have been satisfied with respect to the explanations of both the default 
procedure and the direct rollover option.
    Q-8: May the plan administrator establish a deadline after which the 
distributee may not revoke an election to make or not make a direct 
rollover?
    A-8: Yes, but the plan administrator is not permitted to prescribe 
any deadline or time period with respect to revocation of a direct 
rollover election that is more restrictive for the distributee than that 
which otherwise applies under the plan to revocation of the form of 
distribution elected by the distributee.
    Q-9: Must the plan administrator permit a distributee to elect to 
have a portion of an eligible rollover distribution paid to an eligible 
retirement plan in a direct rollover and to have the remainder of that 
distribution paid to the distributee?
    A-9: Yes, the plan administrator must permit a distributee to elect 
to have a portion of an eligible rollover distribution paid to an 
eligible retirement plan in a direct rollover and to

[[Page 215]]

have the remainder paid to the distributee. However, the plan 
administrator is permitted to require that, if the distributee elects to 
have only a portion of an eligible rollover distribution paid to an 
eligible retirement plan in a direct rollover, that portion be equal to 
at least a specified minimum amount, provided the specified minimum 
amount is less than or equal to $500 or any greater amount as prescribed 
by the Commissioner in revenue rulings, notices, and other guidance 
published in the Internal Revenue Bulletin. See 
Sec. 601.601(d)(2)(ii)(b) of this chapter. If the entire amount of the 
eligible rollover distribution is less than or equal to the specified 
minimum amount, the plan administrator need not allow the distributee to 
divide the distribution.
    Q-10: Must the plan administrator allow a distributee to divide an 
eligible rollover distribution into two or more separate distributions 
to be paid in direct rollovers to two or more eligible retirement plans?
    A-10: No. The plan administrator is not required (but is permitted) 
to allow the distributee to divide an eligible rollover distribution 
into separate distributions to be paid to two or more eligible 
retirement plans in direct rollovers. Thus, the plan administrator may 
require that the distributee select a single eligible retirement plan to 
which the eligible rollover distribution (or portion thereof) will be 
distributed in a direct rollover.
    Q-11: Will a plan satisfy section 401(a)(31) if the plan 
administrator does not permit a distributee to elect a direct rollover 
if his or her eligible rollover distributions during a year are 
reasonably expected to total less than $200?
    A-11: Yes. A plan will satisfy section 401(a)(31) even though the 
plan administrator does not permit any distributee to elect a direct 
rollover with respect to eligible rollover distributions during a year 
that are reasonably expected to total less than $200 or any lower 
minimum amount specified by the plan administrator. The rules described 
in Sec. 31.3405(c)-1, Q&A-14 of this chapter (relating to whether 
withholding under section 3405(c) is required for an eligible rollover 
distribution that is less than $200) also apply for purposes of 
determining whether a direct rollover election under section 401(a)(31) 
must be provided for an eligible rollover distribution that is less than 
$200 or the lower specified amount.
    Q-12: Is a plan administrator permitted to treat a distributee's 
election to make or not make a direct rollover with respect to one 
payment in a series of periodic payments as applying to all subsequent 
payments in the series?
    A-12: (a) Yes. A plan administrator is permitted to treat a 
distributee's election to make or not make a direct rollover with 
respect to one payment in a series of periodic payments as applying to 
all subsequent payments in the series, provided that:
    (1) The employee is permitted at any time to change, with respect to 
subsequent payments, a previous election to make or not make a direct 
rollover; and
    (2) The written explanation provided under section 402(f) explains 
that the election to make or not make a direct rollover will apply to 
all future payments unless the employee subsequently changes the 
election.
    (b) See Sec. 1.402(f)-1, Q&A-3 for further guidance concerning the 
rules for providing section 402(f) notices when eligible rollover 
distributions are made in a series of periodic payments.
    Q-13: Is the eligible retirement plan designated by a distributee to 
receive a direct rollover distribution required to accept the 
distribution?
    A-13: (a) General rule. No. Although section 401(a)(31) requires 
qualified plans to provide distributees the option to make a direct 
rollover of their eligible rollover distributions to an eligible 
retirement plan, it imposes no requirement that any eligible retirement 
plan accept rollovers. Thus, a plan can refuse to accept rollovers. 
Alternatively, a plan can limit the circumstances under which it will 
accept rollovers. For example, a plan can limit the types of plans from 
which it will accept a rollover or limit the types of assets it will 
accept in a rollover (such as accepting only cash or its equivalent).
    (b) Qualification of receiving plan. A plan that accepts a direct 
rollover from another plan will not fail to satisfy

[[Page 216]]

section 401(a) merely because the plan making the distribution is, in 
fact, not qualified under section 401(a) or section 403(a) at the time 
of the distribution, if, prior to accepting the rollover, the receiving 
plan reasonably concluded that the distributing plan was qualified under 
section 401(a) or section 403(a). For example, the receiving plan may 
reasonably conclude that the distributing plan was qualified under 
section 401(a) or section 403(a) if, prior to accepting the rollover, 
the plan administrator of the distributing plan provided the receiving 
plan with a statement that the distributing plan had received a 
determination letter from the Commissioner indicating that the plan was 
qualified.
    Q-14: For purposes of applying the plan qualification requirements 
of section 401(a), is an eligible rollover distribution that is paid to 
an eligible retirement plan in a direct rollover a distribution and 
rollover or is it a transfer of assets and liabilities?
    A-14: For purposes of applying the plan qualification requirements 
of section 401(a), a direct rollover is a distribution and rollover of 
the eligible rollover distribution and not a transfer of assets and 
liabilities. For example, if the consent requirements under section 
411(a)(11) or sections 401(a)(11) and 417(a)(2) apply to the 
distribution, they must be satisfied before the eligible rollover 
distribution may be distributed in a direct rollover. Similarly, the 
direct rollover is not a transfer of assets and liabilities that must 
satisfy the requirements of section 414(l). Finally, a direct rollover 
is not a transfer of benefits for purposes of applying the requirements 
under section 411(d)(6), as described in Sec. 1.411(d)-4, Q&A-3. 
Therefore, for example, the eligible retirement plan is not required to 
provide, with respect to amounts paid to it in a direct rollover, the 
same optional forms of benefits that were provided under the plan that 
made the direct rollover. The direct rollover requirements of section 
401(a)(31) do not affect the ability of a qualified plan to make an 
elective or nonelective transfer of assets and liabilities to another 
qualified plan in accordance with applicable law (such as section 
414(l)).
    Q-15: Must a direct rollover option be provided for an eligible 
rollover distribution that is in the form of a plan loan offset amount?
    A-15: A plan will not fail to satisfy section 401(a)(31) merely 
because the plan does not permit a distributee to elect a direct 
rollover of an eligible rollover distribution in the form of a plan loan 
offset amount. Section 1.402(c)-2(b), Q&A-9 defines a plan loan offset 
amount, in general, as a distribution that occurs when, under the terms 
governing a plan loan, the participant's accrued benefit is reduced 
(offset) in order to repay the loan. A plan administrator is permitted 
to allow a direct rollover of a participant note for a plan loan to a 
qualified trust described in section 401(a) or a qualified annuity plan 
described in section 403(a). See Sec. 1.402(c)-2, Q&A-9 for examples 
illustrating the rules for plan loan offset amounts that are set forth 
in this Q&A-15. See Sec. 31.3405(c)-1, Q&A-11 of this chapter for 
guidance concerning special withholding rules that apply to a 
distribution in the form of a plan loan offset amount.
    Q-16: Must a direct rollover option be provided for an eligible 
rollover distribution from a qualified plan distributed annuity 
contract?
    A-16: Yes. If any amount to be distributed under a qualified plan 
distributed annuity contract is an eligible rollover distribution (in 
accordance with Sec. 1.402(c)-2), Q&A-10 the annuity contract must 
satisfy section 401(a)(31) in the same manner as a qualified plan under 
section 401(a). Section 1.402(c)-2, Q&A-10 defines a qualified plan 
distributed annuity contract as an annuity contract purchased for a 
participant, and distributed to the participant, by a qualified plan. In 
the case of a qualified plan distributed annuity contract, the payor 
under the contract is treated as the plan administrator. See 
Sec. 31.3405(c)-1, Q&A-13 of this chapter concerning the application of 
mandatory 20-percent withholding requirements to distributions from a 
qualified plan distributed annuity contract.
    Q-17: What assumptions may a plan administrator make regarding 
whether a benefit is an eligible rollover distribution?

[[Page 217]]

    A-17: (a) General rule. For purposes of section 401(a)(31), a plan 
administrator may make the assumptions described in paragraphs (b) and 
(c) of this Q&A-17 in determining the amount of a distribution that is 
an eligible rollover distribution for which a direct rollover option 
must be provided. Section 31.3405(c)-1, Q&A-10 of this chapter provides 
assumptions for purposes of complying with section 3405(c). See 
Sec. 1.402(c)-2, Q&A-15 concerning the effect of these assumptions for 
purposes of section 402(c).
    (b) $5,000 death benefit. A plan administrator is permitted to 
assume that a distribution from the plan that qualifies for the $5,000 
death benefit exclusion under section 101(b) is the only death benefit 
being paid with respect to a deceased employee that qualifies for that 
exclusion. Thus, to the extent that such a distribution would be 
excludible from gross income based on this assumption, the plan 
administrator is permitted to assume that it is not an eligible rollover 
distribution.
    (c) Determination of designated beneficiary. For the purpose of 
determining the amount of the minimum distribution required to satisfy 
section 401(a)(9)(A) for any calendar year, the plan administrator is 
permitted to assume that there is no designated beneficiary.
    Q-18: When must a qualified plan be amended to comply with section 
401(a)(31)?
    A-18: Even though section 401(a)(31) applies to distributions from 
qualified plans made on or after January 1, 1993, a qualified plan is 
not required to be amended before the last day by which amendments must 
be made to comply with the Tax Reform Act of 1986 and related 
provisions, as permitted in other administrative guidance of general 
applicability, provided that:
    (a) In the interim period between January 1, 1993, and the date on 
which the plan is amended, the plan is operated in accordance with the 
requirements of section 401(a)(31); and
    (b) The amendment applies retroactively to January 1, 1993.

[T.D. 8619, 60 FR 49204, Sept. 22, 1995]



Sec. 1.401(b)-1   Certain retroactive changes in plan.

    (a) General rule. Under section 401(b) a stock bonus, pension, 
profit-sharing, annuity, or bond purchase plan which does not satisfy 
the requirements of section 401(a) on any day solely as a result of a 
disqualifying provision (as defined in paragraph (b) of this section) 
shall be considered to have satisfied such requirements on such date if, 
on or before the last day of the remedial amendment period (as 
determined under paragraphs (c), (d) and (e) of this section) with 
respect to such disqualifying provision, all provisions of the plan 
which are necessary to satisfy all requirements of sections 401(a), 
403(a), or 405(a) are in effect and have been made effective for all 
purposes for the whole of such period. Under some facts and 
circumstances, it may not be possible to amend a plan retroactively so 
that all provisions of the plan which are necessary to satisfy the 
requirements of section 401(a) are in fact made effective for the whole 
remedial amendment period. If it is not possible, the requirements of 
this section will not be satisfied even if the employer adopts a 
retroactive plan amendment which, in form, appears to satisfy such 
requirements. Section 401(b) does not permit a plan to be made 
retroactively effective, for qualification purposes, for a taxable year 
prior to the taxable year of the employer in which the plan was adopted 
by such employer.
    (b) Disqualifying provisions. For purposes of this section, with 
respect to a plan described in paragraph (a) of this section, the term 
``disqualifying provision'' means:
    (1) A provision of a new plan, the absence of a provision from a new 
plan, or an amendment to an existing plan, which causes such plan to 
fail to satisfy the requirements of the Code applicable to qualification 
of such plan as of the date such plan or amendment is first made 
effective or
    (2) A plan provision which results in the failure of the plan to 
satisfy the qualification requirements of the Code by reason of a change 
in such requirements--
    (i) Effected by the Employee Retirement Income Security Act of 1974 
(Pub.

[[Page 218]]

L. 93-406, 88 Stat. 829), hereafter referred to as ``ERISA,'' or the Tax 
Equity and Fiscal Responsibility Act of 1982 (Pub. L. 97-248, 96 Stat. 
324), hereafter referred to as ``TEFRA,'' or
    (ii) Effective before the first day of the first plan year beginning 
after December 31, 1989 and that is effected by the Tax Reform Act of 
1986 (Pub. L. 99-514, 100 Stat. 2085, 2489), hereafter referred to as 
``TRA '86,'' the Omnibus Budget Reconciliation Act of 1986, (Pub. L. 99-
509, 100 Stat. 1874), hereafter referred to as ``OBRA '86,'' or the 
Omnibus Budget Reconciliation Act of 1987 (Pub. L. 100-203, 101 Stat. 
1330), hereafter referred to as ``OBRA '87.'' For purposes of this 
paragraph (b)(2)(ii), a disqualifying provision includes any plan 
provision that is integral to a qualification requirement changed by TRA 
'86, OBRA '86, or OBRA '87 or any requirement treated by the 
Commissioner, directly or indirectly, as if section 1140 of TRA '86 
applied to it, but only to the extent such provision is effective before 
the first day of the first plan year beginning after December 31, 1989. 
With respect to disqualifying provisions described in this paragraph 
(b)(2)(ii) effective before the first day of the first plan year which 
begins after December 31, 1988, there must be compliance with the 
conditions of section 1140 of TRA '86 (other than the requirement that 
the plan amendment be made on or before the last day of the first plan 
year beginning after December 31, 1988), including operation in 
accordance with the plan provision as of its effective date with respect 
to the plan.
    (iii) Effected by amendments to the Code that are designated by the 
Commissioner, at his discretion, as disqualifying provisions described 
in this paragraph (b)(2). For purposes of this paragraph (b)(2), a 
disqualifying provision includes the absence from a plan of a provision 
required by such change if the plan was in effect on the date such 
change became effective with respect to such plan.
    (c) Remedial amendment period. (1) The remedial amendment period 
with respect to a disqualifying provision begins:
    (i) In the case of a provision of, or absence of a provision from, a 
new plan, described in paragraph (b)(1) of this section, the date the 
plan is put into effect,
    (ii) In the case of an amendment to an existing plan, described in 
paragraph (b)(1) of this section, the date the plan amendment is adopted 
or put into effect (whichever is earlier), or
    (iii) In the case of a disqualifying provision described in 
paragraph (b)(2) of this section, the date on which the change effected 
by ERISA, TEFRA, TRA '86, OBRA '86, OBRA '87, or a qualification 
requirement that is treated, directly or indirectly, as subject to the 
conditions of section 1140 of TRA '86 described in paragraph (b)(2) of 
this section, became effective with respect to such plan or, in the case 
of a provision, described in paragraph (b)(2)(ii) of this section, that 
is integral to such qualification requirement, the first day on which 
the plan was operated in accordance with such provision.
    (2) Unless further extended as provided by paragraph (d) of this 
section, the remedial amendment period ends with the latest of:
    (i) In the case of a plan maintained by one employer, the time 
prescribed by law, including extensions, for filing the income tax 
return (or partnership return of income) of the employer for the 
employer's taxable year in which falls the latest of:
    (A) The date on which the remedial amendment period begins.
    (B) The date on which a plan amendment described in paragraph (b)(1) 
of this section is adopted, or
    (C) The date on which a plan amendment described in paragraph (b)(1) 
of this section is made effective,
    (ii) In the case of a plan maintained by one employer, the last day 
of the plan year within which falls the latest of:
    (A) The date on which the remedial amendment period begins,
    (B) The date on which a plan amendment described in paragraph (b)(1) 
of this section is adopted, or
    (C) The date on which a plan amendment described in paragraph (b)(1) 
of this section is made effective,
    (iii) In the case of a plan maintained by more than one employer, 
the last day of the tenth month following the

[[Page 219]]

last day of the plan year in which falls the latest of:
    (A) The date on which the remedial amendment period begins,
    (B) The date on which a plan amendment described in paragraph (b)(1) 
of this section is adopted, or
    (C) The date of which a plan amendment described in paragraph (b)(1) 
of this section is made effective, or
    (iv) December 31, 1976, but only in the case of a plan to which 
section 411 (relating to minimum vesting standards) applies without 
regard to section 411(e)(2), and only in the case of a remedial 
amendment period which began on or after September 2, 1974.
    For purposes of paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of 
this section, for any disqualifying provision described in paragraph 
(b)(2)(ii) of this section, the remedial amendment period shall be 
deemed to have begun with the first day of the first plan year which 
begins after December 31, 1988.
    For purposes of this paragraph (c)(2) of this section, a master or 
prototype plan shall not be considered to be a plan maintained by more 
than one employer, and whether or not a plan is maintained by more than 
one employer, shall be determined without regard to section 414 (b) and 
(c) except that if a plan is maintained solely by an affiliated group of 
corporations (within the meaning of section 1504) which files a 
consolidated income tax return pursuant to section 1501 for a taxable 
year within which falls the latest of the dates described in paragraph 
(c)(2)(i) of this section, such plan shall be deemed to be maintained by 
one employer.
    (d) Extensions of remedial amendment period--(1) Opinion letter 
request by sponsoring organization of master or prototype plan. In the 
case of an employer who has adopted a master or prototype plan, a 
remedial amendment period that began on or after September 2, 1974, 
shall not end prior to the later of:
    (i) June 30, 1977, or
    (ii) The last day of the month that is six months after the month in 
which:
    (A) The opinion letter with respect to the request of the sponsoring 
organization is issued by the Internal Revenue Service,
    (B) Such request is withdrawn, or
    (C) Such request is otherwise disposed of by the Internal Revenue 
Service. The rules contained in this subparagraph apply only if the 
sponsoring organization of such master or prototype plan has, after 
September 2, 1974, and on or before December 31, 1976, filed a request 
for an opinion letter with respect to the initial or continuing 
qualification of the plan (or a trust which is part of the plan). The 
provisions of this paragraph (d)(1) apply to a master or prototype plan 
adopted to replace another plan even though the remedial amendment 
period applicable to the replaced plan has expired at the time of 
adoption of the replacement plan.
    (2) Notification letter request by law firm sponsor of district-
approved plan. In the case of an employer who has adopted a pattern 
plan, a remedial amendment period that began on or after September 2, 
1974, shall not end prior to the later of:
    (i) June 30, 1977, or
    (ii) The last day of the month that is six months after the month in 
which:
    (A) The notification letter with respect to the request of the 
sponsoring law firm is issued by the Internal Revenue Service,
    (B) Such request is withdrawn, or
    (C) Such request is otherwise disposed of by the Internal Revenue 
Service. The rules contained in this subparagraph shall apply only if 
the sponsoring law firm of such pattern plan has, on or before December 
31, 1976, filed a request for a notification letter with the Internal 
Revenue Service with respect to the initial or continuing qualification 
of the plan (or a trust which is part of the plan). The provisions of 
this paragraph (d)(2) apply to a pattern plan adopted to replace another 
plan even though the remedial amendment period applicable to the 
replaced plan has expired at the time of the adoption of the replacement 
plan.
    (3) Determination letter request by employer or plan adminstrator. 
If on or before the end of a remedial amendment period determined 
without regard to this paragraph (d), or in a case to which paragraph 
(d) (1) or (2) of this section applies, on or before the 90th day 
following the later of the dates described in paragraph (d) (1) or (2) 
of this

[[Page 220]]

section, the employer or plan administrator files a request pursuant to 
Sec. 601.201(s) of this chapter (Statement of Procedural Rules) for a 
determination letter with respect to the initial or continuing 
qualification of the plan, or a trust which is part of such plan, such 
remedial amendment period shall be extended until the expiration of 91 
days after:
    (i) The date on which notice of the final determination with respect 
to such request for a determination letter is issued by the Internal 
Revenue Service, such request is withdrawn, or such request is otherwise 
finally disposed of by the Internal Revenue Service, or
    (ii) If a petition is timely filed with the United States Tax Court 
for a declaratory judgment under section 7476 with respect to the final 
determination (or the failure of the Internal Revenue Service to make a 
final determination) in response to such request, the date on which the 
decision of the United States Tax Court in such proceeding becomes 
final.
    (4) Transitional rule. In the case of a request for a determination 
letter described in and filed within the time prescribed in paragraph 
(d)(3) of this section with respect to which a final determination is 
issued by the Internal Revenue Service on or before September 28, 1976 
the remedial amendment period described in paragraph (c) of this section 
shall not end prior to the expiration of 150 days beginning on the date 
of such final determination by the Internal Revenue Service.
    (5) Disqualifying provision prior to September 2, 1974. If the 
remedial amendment period with respect to a disqualifying provision 
described in paragraph (b)(1) of this section began prior to September 
2, 1974, and the provisions of subdivisions (i), (ii) and (iii) of this 
subparagraph are satisfied, the remedial amendment period described in 
paragraph (c) shall not end prior to December 31, 1976. This 
subparagraph shall apply only if--
    (i) A request pursuant to Sec. 601.201 of this chapter for a 
determination letter with respect to the initial or continuing 
qualification of the plan (or a trust which is part of the plan) was 
filed not later than the later of:
    (A) The time prescribed by law, including extensions, for filing the 
income tax return (or partnership return of income) of the employer for 
the employer's taxable year in which falls the date on which the 
remedial amendment period began, or
    (B) The date 6 months after the close of such taxable year,
    (ii) The employer, either:
    (A) While such request for a determination letter is or was under 
consideration by the Internal Revenue Service or,
    (B) Promptly after the date on which notice of the final 
determination with respect to such request for a determination letter is 
issued by the Internal Revenue Service, such request is withdrawn, or 
such request is otherwise finally disposed of by the Internal Revenue 
Service, adopts or adopted either a plan amendment retroactive to the 
date on which the remedial amendment period began, or a prospective plan 
amendment, and
    (iii) The amendment described in paragraph (d)(5)(ii) of this 
section would have resulted in the plan's satisfying the requirements of 
section 401(a) of the Code from the beginning of the remedial amendment 
period to the date such amendment was made if this section had been in 
effect during such period, and in the case of a prospective amendment, 
if such amendment had been made retroactive to such beginning date.
    (e) Discretionary extensions. At his discretion, the Commissioner 
may extend the remedial amendment period or may allow a particular plan 
to be amended after the expiration of its remedial amendment period and 
any applicable extension of such period. In determining whether such an 
extension will be granted, the Commissioner shall consider, among other 
factors, whether substantial hardship to the employer would result if 
such an extension were not granted, whether such an extension is in the 
best interest of plan participants, and whether the granting of the 
extension is adverse to the interests of the Government. The mere 
absence of final regulations with respect to issues covered under the 
Special Reliance Procedure announced by the Internal

[[Page 221]]

Revenue Service in Technical Information Release 1416 on November 5, 
1975, and as extended by Internal Revenue Service News Release IR-1616 
on May 14, 1976, shall not be deemed to satisfy the criteria of this 
paragraph. With regard to a particular plan, a request for extension of 
time pursuant to this paragraph shall be submitted prior to the 
expiration of the remedial amendment period determined without regard to 
this paragraph, or within such time thereafter as the Internal Revenue 
Service may consider resonable under the circumstances. The request 
should be submitted to the appropriate District Director, determined 
under Sec. 601.201(s)(3)(xii) of this chapter (Statement of Procedural 
Rules). This subparagraph applies to disqualifying provisions that were 
adopted or became effective prior to September 2, 1974, as well as 
disqualifying provisions adopted or made effective on or after September 
2, 1974.

(Secs. 401(b), 7805, Internal Revenue Code of 1954 (88 Stat. 943, 68A 
Stat. 917; 26 U.S.C. 401(b), 7805))

[T.D. 7437, 41 FR 42653, Sept. 28, 1976, as amended by T.D. 7896, 48 FR 
23817, May 27,1983; T.D. 7997, 49 FR 50645, Dec. 31, 1984; T.D. 8217, 53 
FR 29662, Aug. 8, 1988]




Sec. 1.401(e)-1  Definitions relating to plans covering self-employed individuals.

    (a) ``Keogh'' or ``H.R. 10'' plans, in general--(1) Introduction and 
organization of regulations. Certain self-employed individuals may be 
covered by a qualified pension, annuity, or profit-sharing plan. This 
section contains definitions contained in section 401(c) relating to 
plans covering self-employed individuals and is applicable to employer 
taxable years beginning after December 31, 1975, unless otherwise 
specified.
    The provisions of section 401(a) relating to qualification 
requirements which are generally applicable to all qualified plans, and 
other provisions relating to the special rules under section 401 (b), 
(f), (g), (h), and (i), are also generally applicable to any plan 
covering a self-employed individual. However, in addition to such 
requirements and special rules, any plan covering a self-employed 
individual is subject to the rules contained in Secs. 1.401 (e)-2, (e)-
5, and (j)-1 through (j)-5. Section 1.401(e)-2 contains general rules, 
Sec. 1.401(e)-5 contains a special rule limiting the contribution and 
benefit base to the first $100,000 of annual compensation, and 
Sec. 1.401 (j)-1 through (j)-5 contains special rules for defined 
benefit plans. Section 1.401(e)-3 contains special rules which are 
applicable to plans covering self-employed individuals when one or more 
of such individuals is an owner-employee within the meaning of section 
401(c)(3). Section 1.401(e)-4 contains rules relating to contributions 
on behalf of owner-employees for premiums on annuity, etc., contracts 
and a transitional rule for certain excess contributions made on behalf 
of owner-employees for employer taxable years beginning before January 
1, 1976. The provisions of this section and of Secs. 1.401(e)-2 through 
1.401(e)-5 are applicable to employer taxable years beginning after 
December 31, 1975, unless otherwise specified.
    (2) [Reserved]
    (b) [Reserved]

[T.D. 7636, 44 FR 47053, Aug. 10, 1979]



Sec. 1.401(e)-2  General rules relating to plans covering self-employed individuals.

    (a) ``Keogh'' or ``H.R. 10'' plans; introduction and organization of 
regulations. This section provides certain rules which supplement, and 
modify, the qualification requirements of section 401(a) and the special 
rules provided by Sec. 1.401(b)-1 and other special rules under 
subsections (f), (g), (h), and (i) of section 401 in the case of a 
qualified pension, annuity, or profit-sharing plan which covers a self-
employed individual who is an employee within the meaning of section 
401(c)(1). Section 1.401(e)-1(a)(1) sets forth other provisions which 
also supplement, and modify, these requirements and special rules in the 
case of a plan described in this section. The provisions of this section 
apply to employer taxable years beginning after December 31, 1975, 
unless otherwise specified.
    (b) [Reserved]

[T.D. 7636, 44 FR 47053, Aug. 10, 1979]

[[Page 222]]



Sec. 1.401(e)-3  Requirements for qualification of trusts and plans benefiting owner-employees.

    (a) ``Keogh'' or ``H.R. 10'' plans covering owner-employees; 
introduction and organization of regulations. This section prescribes 
the additional requirements which must be met for qualification of a 
trust forming part of a pension or profit-sharing plan, or of an annuity 
plan, which covers any self-employed individual who is an owner-employee 
as defined in section 401(c)(3). These additional requirements are 
prescribed in section 401(d) and are made applicable to such a trust by 
section 401(a)(10)(B) and to an annuity plan by section 404(a)(2). 
However, to the extent that the provisions of Secs. 1.401(e)-1 and 
1.401(e)-2 are not modified by the provisions of this section such 
provisions are also applicable to a plan which covers an owner-employee. 
The provisions of this section apply to taxable years beginning after 
December 31, 1975, unless otherwise specified.
    (b) [Reserved]

[T.D. 7636, 44 FR 47053, Aug. 10, 1979]



Sec. 1.401(e)-4  Contributions for premiums on annuity, etc., contracts and transitional rule for certain excess contributions.

    (a) In general. The provisions of this section prescribe the rules 
specified in section 401(e) relating to certain contributions made under 
a qualified pension, annuity, or profit-sharing plan on behalf of a 
self-employed individual who is an owner-employee (as defined in section 
401(c)(3) and the regulations thereunder) in taxable years of the 
employer beginning after December 31, 1975. In addition, such plans are 
also subject to the limitations on contributions and benefits under 
section 415 for years beginning after December 31, 1975. However, the 
defined contribution compensation limitation described in section 
415(c)(1)(B) will not apply to any contribution described in this 
section provided that the requirements specified in section 415(c)(7) 
and Sec. 1.415-6(h) are satisfied. Solely for the purpose of applying 
section 4972(b) (relating to excise tax on excess contributions for 
self-employed individuals) to other contributions made by an owner-
employee as an employee, the amount of any employer contribution which 
is not deductible under section 404 for the employer's taxable year but 
which is described in section 401(e) and this section shall be taken 
into account as a contribution made by such owner-employee as an 
employee during the taxable year of his employer in which such 
contribution is made.
    (b) Contributions described in section 401(e)--(1) An employer 
contribution on behalf of an owner-employee is described in section 
401(e), if--
    (i) Under the provisions of the plan, the contribution is expressly 
required to be applied (either directly or through a trustee) to pay the 
premiums or other consideration for one or more annuity, endowment, or 
life insurance contracts on the life of the owner-employee.
    (ii) The employer contributions so applied meet the requirements of 
subparagraphs (2) through (5) of this paragraph.
    (iii) The amount of the contribution exceeds the amount deductible 
under section 404 with respect to contributions made by the employer on 
behalf of the owner-employee under the plan, and
    (iv) The total employer contributions required to be applied 
annually to pay premiums on behalf of any owner-employee for contracts 
described in this paragraph do not exceed $7,500. For purposes of 
computing such $7,500 limit, the total employer contributions include 
amounts which are allocable to the purchase of life, accident, health, 
or other insurance.
    (2)(i) The employer contributions must be paid under a plan which 
satisfies all the requirements for qualification. Accordingly, for 
example, contributions can be paid under the plan for life insurance 
protection only to the extent otherwise permitted under sections 401 
through 404 and the regulations thereunder. However, certain of the 
requirements for qualification are modified with respect to a plan 
described in this paragraph (see section 401(a)(10)(A)(ii) and (d)(5)).
    (ii) A plan described in this paragraph is not disqualified merely 
because a contribution is made on behalf of an owner-employee by his 
employer during a taxable year of the employer

[[Page 223]]

for which the owner-employee has no earned income. On the other hand, a 
plan will fail to qualify if a contribution is made on behalf of an 
owner-employee which results in the discrimination prohibited by section 
401(a)(4) as modified by section 401(a)(10)(A)(ii).
    (3) The employer contributions must be applied to pay premiums or 
other consideration for a contract issued on the life of the owner-
employee. For purposes of this subparagraph, a contract is not issued on 
the life of an owner-employee unless all the proceeds which are, or may 
become, payable under the contract are payable directly, or through a 
trustee of a trust described in section 401(a) and exempt from tax under 
section 501(a), to the owner-employee or to the beneficiary named in the 
contract or under the plan. For example, a nontransferable face-amount 
certificate described in section 401(g) and the regulations thereunder 
is considered an annuity on the life of the owner-employee if the 
proceeds of such contract are payable only to the owner-employee or his 
beneficiary.
    (4)(i) For any taxable year of the employer, the amount of 
contributions by the employer on behalf of the owner-employee which is 
applied to pay premiums under the contracts described in this paragraph 
must not exceed the average of the amounts deductible under section 404 
by such employer on behalf of such owner-employee for the most recent 
three taxable years of the employer which are described in the 
succeeding sentence. The three employer taxable years described in the 
preceding sentence must be years, ending prior to the date the latest 
contract was entered into or modified to provide additional, benefits, 
in which the owner-employee derived earned income from the trade or 
business with respect to which the plan is established. However, if such 
owner-employee has not derived earned income for at least three taxable 
years preceding such date, then, in determining the ``average of the 
amounts deductible'', only so many of such taxable years as such owner-
employee was engaged in such trade or business and derived earned income 
therefrom are taken into account.
    (ii) For the purpose of making the computation described in 
subdivision (i) of this subparagraph, the taxable years taken into 
account include those years in which the individual derived earned 
income from the trade or business but was not an owner-employee with 
respect to such trade or business. Furthermore, taxable years of the 
employer preceding the taxable year in which a qualified plan is 
established are taken into account.
    (iii) For purposes of making the computations described in 
subdivisions (i) and (ii) of this subparagraph for any taxable year of 
the employer the average of the amounts deductible under section 404 by 
the employer on behalf of an owner-employee for the most recent three 
relevant taxable years of the employer shall be determined as if section 
404, as in effect for the taxable year for which the computation is to 
be made, had been in effect for all three such years.
    (5) For any taxable year of an employer in which contributions are 
made on behalf of an individual as an owner-employee under more than one 
plan, the amount of contributions described in this section by the 
employer on behalf of such an owner-employee under all such plans must 
not exceed $7,500.
    (c) Transitional rule for excess contributions--(1)(i) The rules of 
this paragraph are inapplicable to a plan which was not in existence for 
any taxable year of an employer which begins before January 1, 1976. For 
taxable years of an employer which begin before January 1, 1976, the 
rules with respect to excess contributions on behalf of owner-employees 
set forth in section 401(d) (5) and (8) and in section 401(e), as these 
sections were in effect on September 1, 1974, prior to their amendment 
by section 2001(e) of the Employee Retirement Income Security Act of 
1974 (hereinafter in this paragraph referred to as the ``Act'') (88 
Stat. 954), shall apply except as provided by subparagraph (2) of this 
paragraph. Section 1.401-13 generally provides the rules for excess 
contributions on behalf of owner-employees set forth in these sections.
    (ii) Notwithstanding the provisions of subdivision (i) of this 
subparagraph, the rules set forth in such subsections

[[Page 224]]

(d) (5) and (8) and (e) of section 401 with respect to excess 
contributions for such taxable years beginning before January 1, 1976, 
apply even though the application of those rules affects a subsequent 
taxable year. Thus, for example, if, in 1975, a nonwillful excess 
contribution described in section 401(e)(1) (prior to such amendment) is 
made on behalf of an owner-employee, the plan will not be qualified 
unless the provisions required by subparagraphs (A) and (B) of such 
401(d)(8) are contained in the plan and made applicable to excess 
contributions made for such taxable years beginning before January 1, 
1976. In such case, the effect of such contribution on the plan, the 
employer, and the owner-employee would be determined under paragraph (2) 
of section 401(e), as in effect on September 1, 1974. By reason of 
section 401(e)(2)(F), as in effect on September 1, 1974, the period for 
assessing any deficiency by reason of the excess contribution will not 
expire until the expiration of the 6-month period described in section 
401(e)(2)(C), as in effect on September 1, 1974, even if the first day 
of such 6-month period falls in a taxable year beginning after December 
31, 1975. For the rules applicable to a willful excess contribution, 
which generally divide an owner-employee's interest in a plan into two 
parts on the basis of employer taxable years beginning before and after 
December 31, 1975, see Sec. 1.72-17A(e)(2)(v). In the case of a willful 
excess contribution, the rule specified in section 401(e)(2)(E)(iii), as 
in effect on September 1, 1974, shall not apply to any taxable year of 
an employer beginning on or after January 1, 1976. Thus, for example, if 
a willful excess contribution was made to a plan on behalf of an owner-
employee with respect to his employer's taxable year beginning January 
1, 1975, the plan would not meet, for purposes of section 404, the 
requirements of section 401(d) with respect to that owner-employee for 
such year, but the 5 taxable years following such year would be 
unaffected because those years begin on or after January 1, 1976.
    (2)(i) For purposes of applying the excess contribution rules with 
respect to the employer taxable years specified in subparagraph (1) of 
this paragraph for such an employer taxable year which begins after 
December 31, 1973, see section 404(e) and Sec. 1.404(e)-1A for rules 
increasing the limitation on the amount of allowable employer deductions 
on behalf of owner-employees under section 404. For purposes of applying 
subparagraphs (A) and (B)(i) of section 401(e)(1) prior to the amendment 
made by section 2001(e)(3) of the Act (88 Stat. 954), the employer 
deduction allowable by section 404(e)(4) with respect to an owner-
employee in a defined contribution plan shall be deemed not to be an 
excess contribution (see Sec. 1.404(e)-1A(c)(4)).
    (ii) For purposes of applying the excess contribution rules with 
respect to the employer taxable years specified in subparagraph (1) of 
this paragraph to an employer's plan which was not in existence on 
January 1, 1974, or to a plan in existence on January 1, 1974, which 
elects under section 1017(d) of the Act (88 Stat. 934), in accordance 
with regulations, to have the funding provisions of section 412 apply to 
such an existing plan, see section 404 (a) (1), (a)(6), and (a)(7), as 
amended by section 1013(c)(1), (2), and (3) of the Act (88 Stat. 922 and 
923) for rules modifying the amount of employer deductions on behalf of 
owner-employees.

[T.D. 7636, 44 FR 47053, Aug. 10, 1979]



Sec. 1.401(e)-5  Limitation of contribution and benefit bases to first $100,000 of annual compensation in case of plans covering self-employed individuals.

    (a) General rules--General rule. (1) Under section 401(a)(17), a 
plan maintained by an employer which provided contributions or benefits 
for employees some or all of whom are employees within the meaning of 
section 401(c)(1) is a qualified plan only if the annual compensation of 
each employee taken into account under the plan does not exceed the 
first $100,000 of such compensation. For purposes of applying section 
401(a)(17) and the preceding sentence, all plans maintained by such an 
employer with respect to the same trade or business shall be treated as 
a single plan. See also sections 401(d)(9) and (10) (relating to 
controlled trades or businesses where a plan covers an owner-employee 
who controls more than one trade or business); section

[[Page 225]]

404(e) (relating to special limitations for self-employed individuals); 
section 413(b)(7) (relating to determination of limitations provided by 
section 404(a) in the case of certain plans maintained pursuant to a 
collective bargaining agreement); and section 413(c)(6) (relating to 
determination of limitations provided by section 404(a) in the case of 
certain plans maintained by more than one employer).
    (2) Special section 414(b), (c) rule. This subparagraph (2) applies 
to plans maintained by employers that are trades or businesses (whether 
or not incorporated) that are under common control within the meaning of 
section 414(c). All such plans that are described in paragraph (a)(1) 
and Sec. 1.401(e)-6(a) (so called ``Subchapter S plans'') shall be 
treated as a single plan in applying the limitation of paragraph (a)(1).
    (b) Integrated plans. (1) In the case of a qualified plan, other 
than a plan described in section 414(j), which is integrated with the 
Social Security Act (chapter 21 of the Code), or with contributions or 
benefits under chapter 2 of the Code (relating to tax on self-employment 
income) or under any other Federal of State law, the $100,000 limitation 
described in subparagraph (a) shall be determined without regard to any 
adjustments to contributions or benefits under the plan on account of 
such integration. See also subsections (a)(5), (a)(15), and (d)(6) of 
section 401 and the regulations thereunder for other rules with respect 
to plans which are integrated.
    (2) In the case of a qualified defined benefit plan described in 
section 414(j), see section 401(j)(4) for a special prohibition against 
integration.
    (c) Application of nondiscrimination requirement. (1) This paragraph 
shall apply--
    (i) In the case of a plan which provides contributions or benefits 
for employees some or all of whom are employees within the meaning of 
section 401(c)(1) and
    (ii) For a year in which the compensation of any employee covered by 
the plan exceeds $100,000. In the case of an employee who is an employee 
within the meaning of section 401(c)(1), compensation includes earned 
income within the meaning of section 401(c)(2).
    (2) In applying section 401(a)(4) under the circumstances described 
in subparagraph (1) of this paragraph, the determination whether the 
rate of contributions or benefits under the plan discriminates in favor 
of highly compensated employees shall be made as if the compensation for 
the year of each employee described in the first sentence of 
subparagraph (1)(ii) of this paragraph were $100,000, rather than the 
compensation actually received by him for such year.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:
    Example (1). A, a self-employed individual, has established the P 
Profit-Sharing Plan, which covers A and his two commonlaw employees, B 
and C. A's taxable year and the plan's plan year are both the calendar 
year. For 1976, A has earned income of $150,000, and B and C each 
receive compensation of less than $100,000 from A. If he wishes to 
contribute $7,500 to the plan on his behalf for 1976, A must also 
contribute to the accounts of B and C under the plan amounts at least 
equal to 7\1/2\ percent of their respective compensation for 1976.
    Example (2). D, an owner-employee within the meaning of section 
401(c)(3), is a participant in the Q Qualified Defined Contribution 
Plan, which, in 1975, satisfies the requirements of section 401(d)(6) 
and all other integration requirements applicable to qualified defined 
contribution plans. The taxable years of D, the employer of D within the 
meaning of section 401(c)(4), and the plan are all calendar years. The 
plan provides for an integration level of $13,200 and a contribution 
rate of 5 percent of compensation in excess of $13,200. For 1975, D has 
earned income of $115,000. The maximum amount of earned income upon 
which D's contribution can be determined is $86,800, and the 
contribution based upon this maximum amount of earned income is $4,340, 
computed as follows:

                                                                        
Maximum annual compensation which may be taken into account..   $100,000
Less: Social Security Act integration level..................     13,200
                                                              ----------
Plan contribution base.......................................    $86,800
Multiplied by: Contribution rate (percent)...................          5
                                                              ----------
    Total....................................................     $4,340
                                                                        


    (e) Years to which section applies. This section applies to taxable 
years of an employer beginning after December 31, 1975. However, if 
employer contributions made under a plan for any employee for taxable 
years of an employer

[[Page 226]]

beginning after December 31, 1973, exceed the amounts permitted to be 
deducted for that employee under section 404(e), as in effect on 
September 1, 1974, this section applies to such taxable years of an 
employer.
    Thus, for example, a plan of a calendar year employer which was 
adopted on January 1, 1974, would be subject to this section in 1974, if 
the employer made a contribution on behalf of any employee within the 
meaning of section 401(c)(1) for such year in excess of the $2,500 or 10 
percent earned income limit, whichever is applicable to that employee, 
specified in section 404(e)(1) as in effect prior to the amendment to 
such Code section made by section 2001(a)(1)(A) of the Employee 
Retirement Income Security Act of 1974 (88 Stat. 952). The plan 
described in the proceeding sentence would also be subject to this 
section in 1974, if the employer made a contribution on behalf of any 
employee within the meaning of section 401(c)(1) which is allowable as a 
deduction only because of the addition of paragraph (4) to Code section 
404(e) made by section 2001(a)(3) of such Act (88 Stat. 952).
    (b) [Reserved]

[T.D. 7636, 44 FR 47055, Aug. 10, 1979; T.D. 7636, 60 FR 21435, May 2, 
1995]



Sec. 1.401(e)-6  Special rules for shareholder-employees.

    (a) Limitation of contributions and benefit bases to first $100,000 
of annual compensation in case of plans covering shareholder-employees. 
(1) Under section 401(a)(17), a plan which provides contributions or 
benefits for employees, some or all of whom are shareholder-employees 
within the meaning of section 1379(d), is subject to the same limitation 
on annual compensation as a plan which provides such contributions or 
benefits for employees some or all of whom are self-employed individuals 
within the meaning of section 401(c)(1). Thus, a plan which provides 
contributions or benefits for such shareholder-employees is subject to 
the rules provided by Sec. 1.401(e)-5, unless otherwise specified. See 
also section 1379. In the case of plans maintained by employers that are 
corporations described in section 414(b) and that are described in this 
subparagraph (1), the same rule described in Sec. 1.401(e)-5(a)(2) shall 
apply.
    (2) Subparagraph (1) applies to taxable years of an electing small 
business corporation beginning after December 31, 1975. However, if 
corporate contributions made under a plan on behalf of any shareholder-
employee for corporate taxable years beginning after December 31, 1973, 
exceed the lesser of the amount of contributions specified in section 
1379(b)(1) (A) or (B), as in effect on September 1, 1974, for that 
shareholder-employee, subparagraph (1) applies to such corporate taxable 
years. Thus, for example if an electing small business corporation whose 
taxable year is the calendar year adopted a plan on January 1, 1974, the 
plan would be subject to the provisions of subparagraph (1) of this 
section in 1974, if the corporation made a contribution in excess of 
$2,500 on behalf of any shareholder-employee for such year.
    (b) [Reserved]

[T.D. 7636, 44 FR 47056, Aug. 10, 1979]



Sec. 1.401(f)-1  Certain custodial accounts and annuity contracts.

    (a) Treatment of a custodial account or an annuity contract as a 
qualified trust. Beginning on January 1, 1974, a custodial account or an 
annuity contract may be used, in lieu of a trust, under any qualified 
pension, profitsharing, or stock bonus plan if the requirements of 
paragraph (b) of this section are met. A custodial account or an annuity 
contract may be used under such a plan, whether the plan covers common-
law employees, self-employed individuals who are treated as employees by 
reason of section 401(c), or both. The use of a custodial account or 
annuity contract as part of a plan does not preclude the use of a trust 
or another custodial account or another annuity contract as part of the 
same plan. A plan under which a custodial account or an annuity contract 
is used may be considered in connection with other plans of the employer 
in determining whether the requirements of section 401 are satisfied. 
For regulations relating to the period before January 1, 1974, see 
Sec. 1.401-8.
    (b) Rules applicable to custodial accounts and annuity contracts. 
(1) Beginning on January 1, 1974, a custodial account or an annuity 
contract is treated

[[Page 227]]

as a qualified trust under section 401 if the following requirements are 
met:
    (i) The custodial account or annuity contract would, except for that 
fact that it is not a trust, constitute a qualified trust under section 
401; and
    (ii) In the case of a custodial account, the custodian either is a 
bank or is another person who demonstrates, to the satisfaction of the 
Commissioner, that the manner in which he will hold the assets will be 
consistent with the requirements of section 401. This demonstration must 
be made in the same manner as the demonstration required by Sec. 1.408-
2(e).
    (2) If a custodial account would, except for the fact that it is not 
a trust, constitute a qualified trust under section 401, it must, for 
example, be created pursuant to a written agreement which constitutes a 
valid contract under local law. In addition, the terms of the contract 
must make it impossible, prior to the satisfaction of all liabilities 
with respect to the employees and their beneficiaries covered by the 
plan. For any part of the funds of the custodial account to be used for, 
or diverted to, purposes other than for the exclusive benefit of the 
employees or their beneficiaries as provided for in the plan (see 
paragraph (a) of Sec. 1.401-2).
    (3) An annuity contract would, except for the fact that it is not a 
trust, constitute a qualified trust under section 401 if it is purchased 
by an employer for an employee under a plan which meets the requirements 
of section 404(a)(2) and the regulations thereunder, except that the 
plan may be either a pension or a profit-sharing plan.
    (c) Effect of this section. (1)(i) Any custodial account or annuity 
contract which satisfies the requirements of paragraph (b) of this 
section is treated as a qualified trust for all purposes of the Internal 
Revenue Code of 1954. Such a custodial account or annuity contract is 
treated as a separate legal person which is exempt from the income tax 
under section 501(a). In addition, the person holding the assets of such 
account or holding such contract is treated as the trustee thereof. 
Accordingly, such person is required to file the returns described in 
sections 6033 and 6047 and to supply any other information which the 
trustee of a qualified trust is required to furnish.
    (ii) Any procedure which has the effect of merely substituting one 
custodian for another shall not be considered as terminating or 
interrupting the legal existence of a custodial account which otherwise 
satisfies the requirements of paragraph (b) of this section.
    (2)(i) The beneficiary of a custodial account which satisfies the 
requirements of paragraph (b) of this section is taxed in accordance 
with section 402. In determining whether the funds of a custodial 
account are distributed or made available to an employee or his 
beneficiary, the rules which under section 402(a) are applicable to 
trusts will also apply to the custodial account as though it were a 
separate legal person and not an agent of the employee.
    (ii) If a custodial account which has qualified under section 401 
fails to qualify under such section for any taxable year, such custodial 
account will not thereafter be treated as a separate legal person, and 
the funds in such account shall be treated as made available within the 
meaning of section 402(a)(1) to the employees for whom they are held.
    (3) The beneficiary of an annuity contract which satisfies the 
requirements of paragraph (b) of this section is taxed as if he were the 
beneficiary of an annuity contract described in section 403(a).
    (d) Definitions. For purposes of this section--
    (1) The term bank means a bank as defined in section 408(n).
    (2) The term annuity means an annuity as defined in section 401(g). 
Thus, any contract or certificate issued after December 31, 1962, which 
is transferable is not treated as a qualified trust under this section.
    (e) Other contracts. For purposes of this section, other than the 
non-transferability restriction of paragraph (d)(2), a contract issued 
by an insurance company qualified to do business in a state shall be 
treated as an annuity contract. For purposes of the preceding sentence, 
the contract does not include a life, health or accident, property, 
casualty or liability insurance contract. For purposes of this 
paragraph, a contract which is issued by an

[[Page 228]]

insurance company will not be considered a life insurance contract 
merely because the contract provides incidental life insurance 
protection. The provisions of this paragraph are effective for taxable 
years beginning after December 31, 1975.
    (f) Cross reference. For the requirement that the assets of an 
employee benefit plan be placed in trust, and exceptions thereto, see 
section 403 of the Employee Retirement Income Security Act of 1974, 29 
U.S.C. 1103, and the regulations prescribed thereunder by the Secretary 
of Labor.

(Secs. 401(f)(2), 7805, Internal Revenue Code of 1954 (88 Stat. 939 and 
68A Stat. 917; 26 U.S.C. 401(f)(2), 7805))

[43 FR 41204, Sept. 15, 1978. Redesignated and amended by T.D. 7748, 46 
FR 1695-1696, Jan. 7, 1981; T.D. 8635, 60 FR 65549, Dec. 20, 1995]



Sec. 1.401(k)-0  Certain cash or deferred arrangements, table of contents.

    This section contains the captions that appear in Sec. 1.401(k)-1.

         Sec. 1.401(k)-1  Certain cash or deferred arrangements.

(a) General rules.
    (1) Certain plans permitted to include cash or deferred 
arrangements.
    (2) Rules applicable to cash or deferred arrangements generally.
    (i) Definition of cash or deferred arrangement.
    (ii) Treatment of after-tax employee contributions.
    (iii) Treatment of elective contributions as plan assets.
    (3) Rules applicable to cash or deferred elections generally.
    (i) Definition of cash or deferred election.
    (ii) Requirement that amounts not be currently available.
    (iii) Amounts currently available.
    (iv) Certain one-time elections not treated as cash or deferred 
elections.
    (v) Tax treatment of employees.
    (vi) Examples.
    (4) Rules applicable to qualified cash or deferred arrangements.
    (i) Definition of qualified cash or deferred arrangement.
    (ii) Treatment of elective contributions as employer contributions.
    (iii) Tax treatment of employees.
    (iv) Application of nondiscrimination requirements to plan that 
includes a qualified cash or deferred arrangement.
    (5) Rules applicable to nonqualified cash or deferred arrangements.
    (i) Definition of nonqualified cash or deferred arrangement.
    (ii) Treatment of elective contributions as employer contributions.
    (iii) Tax treatment of employees.
    (iv) Qualification of plan that includes a nonqualified cash or 
deferred arrangement.
    (6) Rules applicable to partnership cash or deferred arrangements.
    (i) Application of general rules.
    (ii) Definition of partnership cash or deferred arrangement.
    (A) General rule.
    (B) Timing of partner's cash or deferred election.
    (C) Transition rule for partnership cash or deferred elections.
    (iii) Treatment of certain matching contributions as elective 
contributions.
    (7) Rules applicable to collectively bargained plans.
    (i) In general.
    (ii) Example
(b) Coverage and nondiscrimination requirements.
    (1) In general.
    (2) Actual deferral percentage test.
    (i) General rule.
    (ii) Rule for plan years beginning after 1979 and before 1987.
    (iii) Plan provision requirement.
    (3) Aggregation.
    (i) Aggregation of arrangements and plans.
    (ii) Restructuring and Permissive Aggregation.
    (4) Elective contributions taken into account under the actual 
deferral percentage test.
    (i) General rule.
    (ii) Elective contributions and qualified nonelective contributions 
used to satisfy actual contribution percentage test.
    (iii) Elective contributions for partners.
    (iv) Elective contributions not taken into account.
    (5) Qualified nonelective contributions and qualified matching 
contributions that may be taken into account under the actual deferral 
percentage test.
    (6) Examples.
(c) Nonforfeitability requirement.
    (1) General rule.
    (2) Example.
(d) Distribution limitation.
    (1) General rule.
    (2) Rules applicable to hardship distributions.
    (i) Distribution must be on account of hardship.
    (ii) Limit on distributable amount.
    (iii) General hardship distribution standards.
    (A) Immediate and heavy financial need.
    (B) Distribution necessary to satisfy financial need.

[[Page 229]]

    (iv) Deemed hardship distribution standards.
    (A) Deemed immediate and heavy financial need.
    (B) Distribution deemed necessary to satisfy financial need.
    (C) Commissioner may expand standards.
    (3) Rules applicable to distributions upon plan termination.
    (4) Rules applicable to distributions upon sale of assets or 
subsidiary.
    (i) Seller must maintain the plan.
    (ii) Employee must continue employment.
    (iii) Distribution must be in connection with disposition of assets 
or subsidiary.
    (iv) Definitions.
    (A) Substantially all.
    (B) Unrelated employer.
    (5) Lump sum requirement for certain distributions.
    (6) Rules applicable to all distributions.
    (i) Impermissible distributions.
    (ii) Deemed distributions.
    (iii) ESOP dividend distributions.
    (iv) Limitations apply after transfer.
    (v) Required consent.
    (7) Examples.
(e) Additional requirements for qualified cash or deferred arrangements.
    (1) Qualified profit-sharinq, stock bonus, pre-ERISA money purchase 
or rural cooperative plan requirement.
    (2) Cash availability requirement.
    (3) Separate accounting requirement.
    (i) General rule.
    (ii) Failure to satisfy separate accounting requirement.
    (4) Limitations on cash or deferred arrangements of state and local 
governments and tax-exempt organizations.
    (5) One-year eligibility requirement.
    (6) Other benefits not contingent upon elective contributions.
    (i) General rule.
    (ii) Definition of other benefits.
    (iii) Effect of certain statutory limits.
    (iv) Nonqualified deferred compensation.
    (v) Plan loans and distributions.
    (vi) Examples.
    (7) Coordination with other plans.
    (8) Recordkeeping requirements.
    (9) Consistent application of separate lines of business rules.
(f) Correction of excess contributions.
    (1) General rule.
    (i) Permissible correction methods.
    (ii) Combination of correction methods.
    (iii) Impermissible correction methods.
    (iv) Partial distributions.
    (2) Amount of excess contributions.
    (3) Recharacterization of excess contributions.
    (i) General rule.
    (ii) Treatment of recharacterized excess contributions.
    (iii) Additional rules.
    (A) Time of recharacterization.
    (B) Employee contributions must be permitted under plan.
    (C) Plans under which excess contributions may be recharacterized.
    (iv) Transition rules.
    (v) Example.
    (4) Corrective distribution of excess contributions (and income).
    (i) General rule.
    (ii) Income allocable to excess contributions.
    (A) General rule.
    (B) Method of allocating income.
    (C) Alternative method of allocating income.
    (D) Safe harbor method of allocating gap period income.
    (iii) No employee or spousal consent required.
    (iv) Treatment of corrective distributions as employer 
contributions.
    (v) Tax treatment of corrective distributions.
    (A) General rule.
    (B) Rule for de minimis distributions.
    (C) Rule for certain 1987 and 1988 excess contributions.
    (vi) No reduction of required minimum distribution.
    (5) Rules applicable to all corrections.
    (i) Coordination with distribution of excess deferrals.
    (A) In general.
    (B) Treatment of excess contributions that reduce excess deferrals.
    (ii) Correction of family members.
    (iii) Matching contributions forfeited because of excess deferral or 
contribution.
    (6) Failure to correct.
    (i) Failure to correct within 2\1/2\ months after end of plan year.
    (ii) Failure to correct within 12 months after end of plan year.
    (7) Examples.
(g) Definitions.
    (1) Actual deferral percentage.
    (i) General rule.
    (ii) Actual deferral ratio.
    (A) General rule.
    (B) Employee eligible under more than one arrangement.
    (1) Highly compensated employees.
    (2) Nonhighly compensated employees.
    (3) Treatment of plans with different plan years.
    (C) Employees subject to family aggregation rules.
    (1) Aggregation of elective contributions and other amounts.
    (2) Effect on actual deferral percentage of nonhighly compensated 
employees.
    (3) Multiple family groups.
    (2) Compensation.
    (i) Years beginning after December 31, 1986.
    (ii) Years beginning before January 1, 1987.
    (A) General rule.
    (B) Nondiscrimination requirement.

[[Page 230]]

    (3) Elective contributions.
    (4) Eligible employee.
    (i) General rule.
    (ii) Certain one-time elections.
    (5) Employee.
    (6) Employer.
    (7) Excess contributions and excess deferrals.
    (i) Excess contributions.
    (ii) Excess deferrals.
    (8) Highly compensated employees.
    (i) Plan years beginning after December 31, 1986.
    (ii) Plan years beginning after December 31, 1979 and before January 
1, 1987.
    (9) Matching contributions.
    (10) Nonelective contributions.
    (11) Plan.
    (i) Application of section 410(b) rules.
    (ii) Modifications to section 410(b) rules.
    (A) In general.
    (B) Plans benefiting collective bargaining unit employees.
    (C) Multiemployer plans.
    (12) Pre-ERISA money purchase pension plan.
    (13) Qualified matching contributions and qualified nonelective 
contributions.
    (i) Qualified matching contributions.
    (ii) Qualified nonelective contributions.
    (iii) Additional requirements.
    (14) Rural cooperative plan.
    (15) Section 401(k) plan.
    (16) Section 401(m) plan.
(h) Effective dates.
    (1) General rule.
    (2) Collectively bargained plans.
    (3) Transition rules.
    (i) Cash or deferred arrangements in existence on June 27, 1974.
    (ii) Plan years beginning after December 31, 1979, and before 
January 1, 1992.
    (iii) Restructuring.
    (A) General rule.
    (B) Identification of component plans.
    (1) Minimum coverage requirement.
    (2) Commonality requirement.
    (4) State and local government plans.
    (i) Plans adopted before May 6, 1986.
    (ii) Plan years beginning before January 1, 1996.
    (iii) Collectively bargained plans.

[T.D. 8357, 56 FR 40516, Aug. 15, 1991, as amended by T.D. 8376, 56 FR 
63431, Dec. 4, 1991; T.D. 8581, 59 FR 66169, Dec. 23, 1994]



Sec. 1.401(k)-1  Certain cash or deferred arrangements.

    (a) General rules--(1) Certain plans permitted to include cash or 
deferred arrangements. A plan, other than a profit-sharing, stock bonus, 
pre-ERISA money purchase pension or rural cooperative plan, does not 
satisfy the requirements of section 401(a) if the plan includes a cash 
or deferred arrangement. A profit-sharing, stock bonus, pre-ERISA money 
purchase pension, or rural cooperative plan does not fail to satisfy the 
requirements of section 401(a) merely because the plan includes a cash 
or deferred arrangement. A cash or deferred arrangement is part of a 
plan for purposes of this section if any contributions to the plan, or 
accruals or other benefits under the plan, are made or provided pursuant 
to the cash or deferred arrangement.
    (2) Rules applicable to cash or deferred arrangements generally--(i) 
Definition of cash or deferred arrangement. Except as provided in 
paragraph (a)(2)(ii) of this section, a cash or deferred arrangement is 
an arrangement under which an eligible employee may make a cash or 
deferred election with respect to contributions to, or accruals or other 
benefits under, a plan that is intended to satisfy the requirements of 
section 401(a) (including a contract that is intended to satisfy the 
requirements of section 403(a)).
    (ii) Treatment of after-tax employee contributions. A cash or 
deferred arrangement does not include an arrangement under which amounts 
contributed under a plan at an employee's election are designated or 
treated at the time of contribution as after-tax employee contributions 
(e.g., by reporting the contributions as taxable income subject to 
applicable withholding requirements). See also section 414(h)(1). This 
is the case even if the employee's election to make after-tax employee 
contributions is made before the amounts subject to the election are 
currently available to the employee.
    (iii) Treatment of elective contributions as plan assets. The extent 
to which elective contributions under a cash or deferred arrangement 
constitute plan assets for purposes of the prohibited transaction 
provisions of section 4975 of the Internal Revenue Code and title I of 
the Employee Retirement Income Security Act of 1974 is determined in 
accordance with regulations and rulings issued by the Department of 
Labor.
    (3) Rules applicable to cash or deferred elections generally--(i) 
Definition of cash or deferred election. A cash or deferred

[[Page 231]]

election is any election (or modification of an earlier election) by an 
employee to have the employer either--
    (A) Provide an amount to the employee in the form of cash or some 
other taxable benefit that is not currently available, or
    (B) Contribute an amount to a trust, or provide an accrual or other 
benefit, under a plan deferring the receipt of compensation.

A cash or deferred election includes a salary reduction agreement 
between an employee and employer under which a contribution is made 
under a plan only if the employee elects to reduce cash compensation or 
to forgo an increase in cash compensation.
    (ii) Requirement that amounts not be currently available. A cash or 
deferred election can only be made with respect to an amount that is not 
currently available to the employee on the date of the election. 
Further, a cash or deferred election can only be made with respect to 
amounts that would (but for the cash or deferred election) become 
currently available after the later of the date on which the employer 
adopts the cash or deferred arrangement or the date on which the 
arrangement first becomes effective.
    (iii) Amounts currently available. Cash or another taxable amount is 
currently available to the employee if it has been paid to the employee 
or if the employee is able currently to receive the cash or other 
taxable amount at the employee's discretion. An amount is not currently 
available to an employee if there is a significant limitation or 
restriction on the employee's right to receive the amount currently. 
Similarly, an amount is not currently available as of a date if the 
employee may under no circumstances receive the amount before a 
particular time in the future. The determination of whether an amount is 
currently available to an employee does not depend on whether it has 
been constructively received by the employee for purposes of section 
451.
    (iv) Certain one-time elections not treated as cash or deferred 
elections. A cash or deferred election does not include a one-time 
irrevocable election upon an employee's commencement of employment with 
the employer or upon the employee's first becoming eligible under any 
plan of the employer, to have contributions equal to a specified amount 
or percentage of the employee's compensation (including no amount of 
compensation) made by the employer on the employee's behalf to the plan 
and to any other plan of the employer (including plans not yet 
established) for the duration of the employee's employment with the 
employer, or in the case of a defined benefit plan to receive accruals 
or other benefits (including no benefits) under such plans. Thus, for 
example, employer contributions pursuant to a one-time irrevocable 
election described in this paragraph are not treated as having been made 
pursuant to a cash or deferred election and are not includible in an 
employee's gross income by reason of Sec. 1.402(a)-1(d). In no event is 
an election made after December 23, 1994 treated as one-time irrevocable 
election under this paragraph if the election is made by an employee who 
previously became eligible under another plan (whether or not 
terminated) of the employer. See paragraph (a)(6)(ii)(C) of this section 
for an additional one-time election permitted under a cash or deferred 
arrangement in which partners may participate.
    (v) Tax treatment of employees. An amount generally is includible in 
an employee's gross income for the taxable year in which the employee 
actually or constructively receives the amount. But for section 
402(e)(3) and section 401(k), an employee is treated as having received 
an amount that is contributed to a plan pursuant to the employee's cash 
or deferred election. This is the case even if the election to defer is 
made before the year in which the amount is earned, or before the amount 
is currently available. See Sec. 1.402(a)-1(d).
    (vi) Examples. The provisions of this paragraph (a)(3) are 
illustrated by the following examples:

    Example 1. An employer maintains a profit-sharing plan under which 
each eligible employee has an election to defer an annual bonus payable 
on January 30 each year. The bonus equals 10 percent of compensation 
during the previous calendar year. Deferred amounts are not treated as 
after-tax employee contributions. The bonus is currently available on 
January 30. An election made

[[Page 232]]

prior to January 30 to defer all or part of the bonus is a cash or 
deferred election, and the bonus deferral arrangement is a cash or 
deferred arrangement.
    Example 2. An employer maintains a profit-sharing plan under which 
each eligible employee may elect to defer up to 10 percent of 
compensation for each payroll period during the plan year. An election 
to defer compensation for a payroll period is a cash or deferred 
election if the election is made prior to the date on which the 
compensation is to be paid to the employee and if the deferred amount is 
not treated as an after-tax employee contribution at the time of 
deferral.
    Example 3. (i) Employer A establishes a qualified money purchase 
pension plan in 1986. This is the first qualified plan established by 
Employer A. All salaried employees are eligible to participate under the 
plan. Hourly-paid employees are not eligible to participate under the 
plan. In 1996, Employer A establishes a profit-sharing plan under which 
all employees (both salaried and hourly) are eligible. Employer A 
permits all employees on the effective date of the profit-sharing plan 
to make a one-time irrevocable election to have Employer A contribute 
five percent of compensation on their behalf to the plan and to any 
other plan of Employer A (including plans not yet established) for the 
duration of the employee's employment with Employer A, and have their 
salaries reduced by five percent.
    (ii) The election provided under the profit-sharing plan is not a 
one-time irrevocable election within the meaning of Sec. 1.401(k)- 
1(a)(3)(iv) with respect to the salaried employees of Employer A who, at 
any time before becoming eligible to participate under the profit-
sharing plan, became eligible to participate under the money purchase 
pension plan. The election under the profit-sharing plan is a one-time 
irrevocable election within the meaning of Sec. 1.401(k)- 1(a)(3)(iv) 
with respect to the hourly employees, because they were not previously 
eligible to participate under another plan of the employer.

    (4) Rules applicable to qualified cash or deferred arrangements--(i) 
Definition of qualified cash or deferred arrangement. A qualified cash 
or deferred arrangement is a cash or deferred arrangement that satisfies 
the requirements of paragraphs (b), (c), (d), and (e) of this section 
and that is part of a plan that otherwise satisfies the requirements of 
section 401(a).
    (ii) Treatment of elective contributions as employer contributions. 
Except as provided in paragraph (f) of this section, elective 
contributions under a qualified cash or deferred arrangement are treated 
as employer contributions. Thus, for example, elective contributions are 
treated as employer contributions for purposes of sections 401(a) and 
401(k), 402, 404, 409, 411, 412, 415, 416, and 417.
    (iii) Tax treatment of employees. Except as provided in section 
402(g) and paragraph (f) of this section, elective contributions under a 
qualified cash or deferred arrangement are neither includible in an 
employee's gross income at the time the cash or other taxable amounts 
would have been includible in the employee's gross income (but for the 
cash or deferred election), nor at the time the elective contributions 
are contributed to the plan. See Sec. 1.402(a)-1(d)(2)(i).
    (iv) Application of nondiscrimination requirements to plan that 
includes a qualified cash or deferred arrangement. A plan that includes 
a qualified cash or deferred arrangement must satisfy the requirements 
of sections 401(a)(4) and 410(b). Thus, for example, the plan must 
satisfy section 401(a)(4) with respect to the amount of contributions or 
benefits and the availability of benefits, rights and features under the 
plan. See Sec. 1.401(a)(4)-1(b)(3). The right to make each level of 
elective contributions under a cash or deferred arrangement is a 
benefit, right or feature subject to this requirement, and each of these 
rights must therefore generally be available to a group of employees 
that satisfies section 410(b). See Sec. 1.401(a)(4)-4(e)(3)(i) and 
(iii)(D). Thus, for example, if all employees are eligible to make a 
stated level of elective contributions under a cash or deferred 
arrangement, but that level of contributions can only be made from 
compensation in excess of a stated amount, such as the Social Security 
taxable wage base, the arrangement will generally favor highly 
compensated employees with respect to the availability of elective 
contributions and thus will generally not satisfy the requirements of 
section 401(a)(4). For plan years beginning after December 31, 1984, the 
amount of elective contributions under a qualified cash or deferred 
arrangement satisfies the requirements of section 401(a)(4) only if the 
amount of elective contributions satisfies the special nondiscrimination 
test of section 401(k)(3) and paragraph (b)(2) of this

[[Page 233]]

section. See Sec. 1.401(a)(4)-1(b)(2)(ii)(B). See also Sec. 1.401(a)(4)- 
11(g)(3)(vii)(A), relating to corrective amendments that may be made to 
satisfy the minimum coverage requirements of section 410(b).
    (5) Rules applicable to nonqualified cash or deferred arrangements--
(i) Definition of nonqualified cash or deferred arrangement. A 
nonqualified cash or deferred arrangement is a cash or deferred 
arrangement that is not a qualified cash or deferred arrangement. Thus, 
if a cash or deferred arrangement fails to satisfy one or more of the 
requirements in paragraph (b), (c), (d) or (e) of this section, the 
arrangement is a nonqualified cash or deferred arrangement.
    (ii) Treatment of elective contributions as employer contributions. 
Except as specifically provided otherwise, elective contributions under 
a nonqualified cash or deferred arrangement are treated as nonelective 
employer contributions. Thus, for example, the elective contributions 
are treated as nonelective employer contributions for purposes of 
sections 401(a) (including section 401(a)(4)) and 401(k), 404, 409, 411, 
412, 415, 416, and 417 and are not subject to the requirements of 
section 401(m).
    (iii) Tax treatment of employees. Elective contributions under a 
nonqualified cash or deferred arrangement are includible in an 
employee's gross income at the time the cash or other taxable amount 
that the employee would have received (but for the cash or deferred 
election) would have been includible in the employee's gross income. See 
Sec. 1.402(a)-1(d)(1).
    (iv) Qualification of plan that includes a nonqualified cash or 
deferred arrangement. A profit-sharing, stock bonus, pre-ERISA money 
purchase pension, or rural cooperative plan does not fail to satisfy the 
requirements of section 401(a) merely because the plan includes a 
nonqualified cash or deferred arrangement. In determining whether the 
plan satisfies the requirements of section 401(a)(4), the special 
nondiscrimination tests of sections 401(k)(3) and 401(m)(2) may not be 
used. See Secs. 1.401(a)(4)-1(b)(2)(ii)(B) and 1.410(b)-9 (definition of 
section 401(k) plan).
    (6) Rules applicable to partnership cash or deferred arrangements--
(i) Application of general rules. A partnership may maintain a cash or 
deferred arrangement, and individual partners may make cash or deferred 
elections with respect to compensation attributable to services rendered 
to the partnership. Generally, the same rules apply to partnership cash 
or deferred arrangements as apply to other cash or deferred 
arrangements. Thus, a partnership cash or deferred arrangement is not a 
qualified cash or deferred arrangement unless the requirements of 
section 401(k) and this section are satisfied. For example, any 
contributions made on behalf of an individual partner pursuant to a 
partnership cash or deferred arrangement are elective contributions 
unless they are designated or treated as after-tax employee 
contributions. Consistent with Sec. 1.402(a)-1(d), the elective 
contributions are includible in income and are not deductible under 
section 404(a) unless the arrangement is a qualified cash or deferred 
arrangement. Also, even if the arrangement is a qualified cash or 
deferred arrangement, the elective contributions are includible in gross 
income and are not deductible under section 404(a) to the extent they 
exceed the applicable limit under section 402(g). See also 
Sec. 1.401(a)-30.
    (ii) Definition of partnership cash or deferred arrangement--(A) 
General rule. Effective for contributions made for plan years beginning 
after December 31, 1988, a cash or deferred arrangement includes any 
arrangement that directly or indirectly permits individual partners to 
vary the amount of contributions made on their behalf.
    (B) Timing of partner's cash or deferred election. For purposes of 
paragraph (a)(3)(ii) of this section, a partner's compensation is deemed 
currently available on the last day of the partnership taxable year. 
Accordingly, an individual partner may not make a cash or deferred 
election with respect to compensation for a partnership taxable year 
after the last day of that year. A partner's compensation for a 
partnership taxable year ending with or within a plan year beginning 
before January 1, 1992, is, however, deemed not to be currently 
available until the

[[Page 234]]

due date, including extensions, for filing the partnership's federal 
income tax return for its taxable year ending with or within the plan 
year. See Sec. 1.401(k)-1(b)(4)(iii) for the rules regarding when 
contributions are treated as allocated.
    (C) Transition rule for partnership cash or deferred elections. A 
one-time irrevocable election to participate or not to participate in a 
plan in which partners may participate is not a cash or deferred 
election if the election was made on or before the later of the first 
day of the first plan year beginning after December 31, 1988, or March 
31, 1989. This election may be made after the commencement of employment 
or after the employee's first becoming eligible under any plan of the 
employer. In no event, however, may the election be made after December 
23, 1994. The election may be made even if the one-time irrevocable 
election in Sec. 1.401(k)-1(a)(3)(iv) was previously made.
    (iii) Treatment of certain matching contributions as elective 
contributions. If a partnership makes matching contributions with 
respect to an individual partner's elective contributions or employee 
contributions, then the matching contributions are treated as elective 
contributions made on behalf of the partner. In the case of a plan that, 
on August 8, 1988, did not treat matching contributions as elective 
contributions, the preceding sentence applies only to plan years 
beginning after August 8, 1988. See also Secs. 1.401(m)-1(f)(12) and 
1.404(e)-1A(f).
    (7) Rules applicable to collectively bargained plans--(i) In 
general. The amount of employer contributions under a nonqualified cash 
or deferred arrangement is treated as satisfying section 401(a)(4) if 
the arrangement is part of a collectively bargained plan (including a 
plan adopted by a state or local government before May 6, 1986) that 
automatically satisfies the requirements of section 410(b). See 
Secs. 1.401(a)(4)-1(c)(5) and 1.410(b)-2(b)(7). Except as specifically 
provided otherwise, elective contributions under the arrangement are 
treated as employer contributions. See Sec. 1.401(k)-1(a)(5)(ii). 
However, elective contributions under the nonqualified cash or deferred 
arrangement are treated as employee contributions for purposes of 
section 402(a) for plan years beginning after December 31, 1992, and are 
therefore not excludable from gross income under section 402(e)(3). See 
Sec. 1.402(a)-1(d)(3)(iv).
    (ii) Example. The provisions of this paragraph (a)(7) are 
illustrated by the following example:

    Example. For the 1994 plan year, Employer A maintains a collectively 
bargained plan that includes a cash or deferred arrangement. Employer 
contributions under the cash or deferred arrangement not satisfy the 
actual deferral percentage test of section 401(k)(3) and paragraph (b) 
of this section. Therefore, the arrangement is a nonqualified cash or 
deferred arrangement. The employer contributions under the cash or 
deferred arrangement are considered to be nondiscriminatory under 
section 401(a)(4), and the elective contributions are generally treated 
as employer contributions. Under Sec. 1.402(a)-1(d)(1), however, 
elective contributions are includible in an employee's gross income.

    (b) Coverage and nondiscrimination requirements--(1) In general. A 
cash or deferred arrangement satisfies this paragraph (b) for a plan 
year only if:
    (i) The group of eligible employees under the section 401(k) plan 
and the group of employees benefiting under the plan to which the 
nonelective employer contributions are made separately satisfy the 
requirements of section 410(b) (including the average benefit percentage 
test, if applicable). For special rules governing the application of 
section 410(b) to a cash or deferred arrangement, see Secs. 1.410(b)-
7(c)(1) and 1.410(b)-8(a)(1). See also Sec. 1.401(a)(4)- 
11(g)(3)(vii)(A), relating to corrective amendments that may be made to 
satisfy the minimum coverage requirements of section 410(b).
    (ii) The cash or deferred arrangement satisfies the actual deferral 
percentage test described in paragraph (b)(2) of this section. This is 
the exclusive nondiscrimination test applicable to the amount of 
elective contributions under a qualified cash or deferred arrangement. 
See Sec. 1.401(a)(4)-1(b)(2)(ii)(B).
    (2) Actual deferral percentage test--(i) General rule. For plan 
years beginning after December 31, 1986, or such later date provided in 
paragraph (h) of this section, a cash or deferred arrangement satisfies 
this paragraph (b) for a plan year only if:

[[Page 235]]

    (A) The actual deferral percentage for the group of eligible highly 
compensated employees is not more than the actual deferral percentage 
for the group of all other eligible employees multiplied by 1.25; or
    (B) The excess of the actual deferral percentage for the group of 
eligible highly compensated employees over the actual deferral 
percentage for the group of all other eligible employees is not more 
than two percentage points, and the actual deferral percentage for the 
group of eligible highly compensated employees is not more than the 
actual deferral percentage for the group of all other eligible employees 
multiplied by two.

An arrangement does not fail to satisfy the requirements of this 
paragraph (b)(2) merely because all of the eligible employees under an 
arrangement for a year are highly compensated employees.
    (ii) Rule for plan years beginning after 1979 and before 1987. For 
plan years beginning after December 31, 1979, and before January 1, 
1987, or such later date provided in paragraph (h) of this section, a 
cash or deferred arrangement satisfies this paragraph (b) for a plan 
year only if:
    (A) The actual deferral percentage for the group of eligible highly 
compensated employees (top one-third) is not more than the actual 
deferral percentage for the group of all other eligible employees (lower 
two-thirds) multiplied by 1.5; or
    (B) The excess of the actual deferral percentage for the top one-
third over the actual deferral percentage for the lower two-thirds is 
not more than three percentage points, and the actual deferral 
percentage for the top one-third is not more than the actual deferral 
percentage for the lower two-thirds multiplied by 2.5.
    (iii) Plan provision requirement. For plan years beginning after 
December 31, 1986, or such later date provided in paragraph (h) of this 
section, a plan that includes a cash or deferred arrangement does not 
satisfy the requirements of section 401(a) unless it provides that the 
actual deferral percentage test of section 401(k)(3) will be met. For 
purposes of this paragraph (b)(2)(iii), the plan may incorporate by 
reference the provisions of section 401(k)(3), this paragraph (b), and 
if applicable, section 401(m)(9) and Sec. 1.401(m)-2.
    (3) Aggregation--(i) Aggregation of arrangements and plans. Except 
as otherwise specifically provided in this paragraph (b)(3), all cash or 
deferred arrangements included in a plan are treated as a single cash or 
deferred arrangement. Thus, for example, if two groups of employees are 
eligible for separate cash or deferred arrangements under the same plan, 
the two cash or deferred arrangements are treated as a single cash or 
deferred arrangement, even if they have significantly different 
features, such as significantly different limits on elective 
contributions. See Sec. 1.401(k)-1(g)(11) for the definition of plan 
used for purposes of this section. That definition contains the 
exclusive rules for aggregation and disaggregation of plans for purposes 
of this section. See also paragraph (g)(1)(ii) of this section for rules 
requiring the aggregation of elective contributions under two or more 
plans in computing the actual deferral ratios of certain employees.
    (ii) Restructuring and Permissive Aggregation. Effective for plan 
years beginning after December 31, 1991, restructuring under 
Sec. 1.401(a)(4)-9(c) may not be used to demonstrate compliance with the 
requirements of section 401(k). See Sec. 1.401(a)(4)-9(c)(3)(ii). For 
plan years beginning before January 1, 1992, see Sec. 1.401(k)- 
1(h)(3)(iii). An employer may, however, treat a plan benefiting 
otherwise excludable employees as two separate plans for purposes of 
sections 401(k) and 410(b) in accordance with Secs. 1.410(b)-6(b)(3) and 
1.410(b)-7(c)(3).
    (4) Elective contributions taken into account under the actual 
deferral percentage test--(i) General rule. An elective contribution is 
taken into account under paragraph (b)(2) of this section for a plan 
year only if each of the following requirements is satisfied:
    (A) The elective contribution is allocated to the employee's account 
under the plan as of a date within that plan year. For purposes of this 
rule, an elective contribution is considered allocated as of a date 
within a plan year only if--

[[Page 236]]

    (1) The allocation is not contingent upon the employee's 
participation in the plan or performance of services on any date 
subsequent to that date, and
    (2) The elective contribution is actually paid to the trust no later 
than the end of the 12-month period immediately following the plan year 
to which the contribution relates.
    (B) The elective contribution relates to compensation that either--
    (1) Would have been received by the employee in the plan year but 
for the employee's election to defer under the arrangement, or
    (2) Is attributable to services performed by the employee in the 
plan year and, but for the employee's election to defer, would have been 
received by the employee within two and one-half months after the close 
of the plan year.
    (ii) Elective contributions and qualified nonelective contributions 
used to satisfy actual contribution percentage test. Except as provided 
in Sec. 1.401(m)-1(b)(5)(iii), elective contributions treated as 
matching contributions must satisfy the actual contribution percentage 
test of section 401(m)(2) and are not taken into account under paragraph 
(b)(2) of this section. A qualified nonelective contribution that is 
treated as a matching contribution is subject to the actual contribution 
percentage test of section 401(m)(2) and is not taken into account as an 
elective contribution under paragraph (b)(2) or (5) of this section.
    (iii) Elective contributions for partners. For purposes of paragraph 
(b)(2) of this section, a partner's distributive share of partnership 
income is treated as received on the last day of the partnership taxable 
year. Thus, an elective contribution made on behalf of a partner is 
treated as allocated to the partner's account for the plan year that 
includes the last day of the partnership taxable year, provided the 
requirements of paragraph (b)(4)(i)(A) of this section are met.
    (iv) Elective contributions not taken into account. Elective 
contributions that do not satisfy the requirements of paragraph 
(b)(4)(i) of this section may not use the special nondiscrimination rule 
of section 401(k)(3) and paragraph (b)(2) of this section for the plan 
year with respect to which the contributions were made, or for any other 
plan year. Instead, the amount of the elective contributions must 
satisfy the requirements of section 401(a)(4) (without regard to the 
special nondiscrimination test in section 401(k)(3) and paragraph (b)(2) 
of this section) for the plan year in which they are allocated under the 
plan as if they were nonelective employer contributions and were the 
only nonelective employer contributions for the year. See 
Secs. 1.401(a)(4)-1(b)(2)(ii)(B); 1.410(b)-7(c)(1).
    (5) Qualified nonelective contributions and qualified matching 
contributions that may be taken into account under the actual deferral 
percentage test. Except as specifically provided otherwise, for purposes 
of paragraph (b)(2) of this section, all or part of the qualified 
nonelective contributions and qualified matching contributions made with 
respect to any or all employees who are eligible employees under the 
cash or deferred arrangement being tested may be treated as elective 
contributions under the arrangement, provided that each of the following 
requirements (to the extent applicable) is satisfied:
    (i) The amount of nonelective contributions, including those 
qualified nonelective contributions treated as elective contributions 
for purposes of the actual deferral percentage test, satisfies the 
requirements of section 401(a)(4). See Sec. 1.401(a)(4)-1(b)(2).
    (ii) The amount of nonelective contributions, excluding those 
qualified nonelective contributions treated as elective contributions 
for purposes of the actual deferral percentage test and those qualified 
nonelective contributions treated as matching contributions under 
Sec. 1.401(m)-1(b)(5) for purposes of the actual contribution percentage 
test, satisfies the requirements of section 401(a)(4). See 
Sec. 1.401(a)(4)-1(b)(2).
    (iii) For plan years beginning before January 1, 1987, or such later 
date provided in paragraph (h) of this section, the matching 
contributions, including those qualified matching contributions treated 
as elective contributions for purposes of the actual deferral percentage 
test, satisfy the requirements of section 401(a)(4).

[[Page 237]]

    (iv) For plan years beginning before January 1, 1987, or such later 
date provided in paragraph (h) of this section, the matching 
contributions, excluding those qualified matching contributions treated 
as elective contributions for purposes of the actual deferral percentage 
test, satisfy the requirements of section 401(a)(4).
    (v) The qualified nonelective contributions and qualified matching 
contributions satisfy the requirements of paragraph (b)(4)(i)(A) of this 
section for the plan year as if the contributions were elective 
contributions.
    (vi) For plan years beginning after December 31, 1988, or such later 
date provided in paragraph (h) of this section, the section 401(k) plan 
and the plan or plans to which the qualified nonelective contributions 
and qualified matching contributions are made, could be aggregated under 
Sec. 1.410(b)-7(d) after application of the mandatory disaggregation 
rules of Sec. 1.410(b)-7(c), as modified in Sec. 1.401(k)-1(g)(11). If 
the plan year of the section 401(k) plan is changed to satisfy the 
requirement under Sec. 1.410(b)-7(d)(5) that aggregated plans have the 
same plan year, the qualified nonelective contributions and qualified 
matching contributions may be taken into account in the resulting short 
plan year only if the contributions satisfy the requirements of 
paragraph (b)(4)(i) of this section with respect to the short year as if 
the contributions were elective contributions and the aggregated plans 
could otherwise be aggregated for purposes of section 410(b).
    (6) Examples. The provisions of this paragraph (b) are illustrated 
by the following examples.
    Example 1. (i) Employees A, B, and C are eligible employees who earn 
$30,000, $15,000, and $10,000, respectively, in 1989. ln addition, their 
employer, X, contributes a bonus of up to 10 percent of their regular 
compensation to a trust under a profit-sharing plan that includes a cash 
or deferred arrangement. Under the arrangement, each eligible employee 
may elect to receive none, all, or any part of the 10 percent in cash. 
The employer contributes the remainder to the trust. The cash portion of 
the bonus, if any, is paid after the end of the plan year. The 10 
percent is therefore not included in compensation until the year paid. 
Employee A is highly compensated. For the 1989 plan year, A, B, and C 
make the following elections:

------------------------------------------------------------------------
                                                             Elective   
               Employee                   Compensation     contribution 
------------------------------------------------------------------------
A.....................................          $30,000           $1,780
B.....................................           15,000              750
C.....................................           10,000              450
------------------------------------------------------------------------

    (ii) The ratios of employer contributions to the trust on behalf of 
each eligible employee to the employee's compensation for the plan year 
(calculated separately for each employee) are:

------------------------------------------------------------------------
                                                Ratio of        Actual  
                                                elective       deferral 
                 Employee                    contribution to     ratio  
                                              compensation     (percent)
------------------------------------------------------------------------
A.........................................     $1,780/30,000        5.93
B.........................................        750/15,000        5.00
C.........................................        450/10,000        4.50
------------------------------------------------------------------------

    (iii) The actual deferral percentage for the highly compensated 
group (Employee A) is 5.93 percent. The actual deferral percentage for 
the nonhighly compensated group is 4.75 percent ((5%+4.5%)/2)). Because 
5.93 percent is less than 5.94 percent (4.75% multiplied by 1.25), the 
first percentage test is satisfied.
    Example 2. (i) The facts are the same as in Example 1, except that 
elective contributions are made pursuant to a salary reduction agreement 
and no bonuses are paid. Employer X includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). See 
Sec. 1.401(k)-1(g)(2)(i). In addition, A defers $2,025. Thus, the 
compensation and elective contributions for A, B, and C are:

------------------------------------------------------------------------
                                                                Actual  
                                                  Elective     deferral 
            Employee             Compensation  contributions     ratio  
                                                               (percent)
------------------------------------------------------------------------
A..............................       $30,000        $2,025         6.75
B..............................        15,000           750         5.00
C..............................        10,000           450         4.50
------------------------------------------------------------------------

    (ii) The actual deferral percentage for the highly compensated group 
(Employee A) is 6.75 percent. The actual deferral percentage for the 
nonhighly compensated group is 4.75 percent ((5.00%+4.50%)/2). Because 
6.75 percent exceeds 5.94 percent (4.75 x 1.25), the first percentage 
test is not satisfied. However, since the actual deferral percentage 
equals the maximum percentage allowed under the second percentage test, 
(4.75+2=6.75), the second percentage test is satisfied.
    Example 3. (i) Employees D through L are eligible employees in 
Employer A's profit-sharing plan that contains a cash or deferred 
arrangement. Employer A includes elective contributions in compensation 
as permitted under Sec. 1.414(s)-1(c)(4)(i). Each eligible employee may 
elect to defer up to six percent of compensation under the cash or 
deferred arrangement. Employees D and E are highly compensated. The 
compensation, elective contributions, and actual deferral ratios of 
these employees for the 1989 plan year are shown below:

[[Page 238]]



------------------------------------------------------------------------
                                                                Actual  
                                                  Elective     deferral 
            Employee             Compensation  contributions     ratio  
                                                               (percent)
------------------------------------------------------------------------
D..............................      $100,000        $6,000            6
E..............................        80,000         4,000            5
F..............................        60,000         3,600            6
G..............................        40,000         1,600            4
H..............................        30,000         1,200            4
I..............................        20,000           600            3
J..............................        20,000           600            3
K..............................        10,000           300            3
L..............................         5,000           150            3
------------------------------------------------------------------------

    (ii) The actual deferral percentage for the highly compensated group 
is 5.5 percent. The actual deferral percentage for the nonhighly 
compensated group is 3.71 percent. Because 5.5 percent is greater than 
4.64 percent (3.71% x 1.25), the first percentage test is not satisfied. 
However, because 5.5 percent is less than 5.71 percent (the lesser of 
3.71%+2 or 3.71% x 2), the second percentage test is satisfied.
    Example 4. (i) Employer D maintains a profit-sharing plan that 
contains a cash or deferred arrangement. Employer D includes elective 
contributions in compensation as permitted under Sec. 1.414(s)-
1(c)(4)(i). The following amounts are contributed under the plan:
    (A) Six percent of each employee's compensation. These contributions 
are not qualified nonelective contributions (QNCs).
    (B) Two percent of each employee's compensation. These contributions 
are QNCs.
    (C) Three percent of each employee's compensation that the employee 
may elect to receive as cash or to defer under the plan.
    (ii) For the 1990 plan year, the compensation, elective 
contributions, and actual deferral ratios of employees M through S were:

------------------------------------------------------------------------
                                                                Actual  
                                                  Elective     deferral 
            Employee             Compensation  contributions     ratio  
                                                               (percent)
------------------------------------------------------------------------
M..............................      $100,000        $3,000            3
N..............................        80,000         1,600            2
O..............................        60,000         1,800            3
P..............................        40,000             0            0
Q..............................        30,000             0            0
R..............................        20,000             0            0
S..............................        20,000             0            0
------------------------------------------------------------------------

    (iii) Both types of nonelective contributions are made for all 
employees. Thus, both the six percent and the two percent employer 
contributions satisfy the requirements of section 401(a)(4) and 
paragraph (b)(5)(i) of this section.
    (iv) The elective contributions alone do not satisfy the special 
rules in paragraph (b)(4) of this section because the actual deferral 
percentage for the highly compensated group, consisting of employees M 
and N, is 2.5 percent and the actual deferral percentage for the 
nonhighly compensated group is 0.6 percent. However, the two percent 
QNCs may be taken into account in applying the special rules. The six 
percent nonelective contributions may not be taken into account because 
they are not QNCs.
    (v) If the two percent QNCs are taken into account, the actual 
deferral percentage for the highly compensated group is 4.5 percent, and 
the actual deferral percentage for the nonhighly compensated group is 
2.6 percent. Because 4.5 percent is not more than two percentage points 
greater than 2.6 percent, and not more than two times 2.6, the actual 
deferral percentage test of section 401(k)(3) and paragraph (b)(2) of 
this section is satisfied. Thus, the plan satisfies this paragraph (b).
    Example 5. (i) Employer N maintains a plan that contains a cash or 
deferred arrangement. The plan year and the employer's taxable year are 
the calendar year. The plan provides for employee contributions, 
elective contributions, matching contributions, and qualified 
nonelective contributions (QNCs), all of which meet the applicable 
requirements of section 401(a)(4). Matching contributions on behalf of 
nonhighly compensated employees are qualified matching contributions 
(QMACs). Matching contributions on behalf of highly compensated 
employees are not QMACs. For the 1988 plan year, elective contributions 
and matching contributions with respect to highly compensated and 
nonhighly compensated employees are shown in the following chart.

------------------------------------------------------------------------
                                    Elective                            
                                 contributions      Total               
                                   (including      matching      QMACs  
                                     QNCs)      contributions  (percent)
                                   (percent)      (percent)             
------------------------------------------------------------------------
Highly compensated.............           15              5           0 
Nonhighly compensated..........           11              5           5 
------------------------------------------------------------------------

    (ii) The plan fails to meet the requirements of section 401(k)(3)(A) 
because 15 percent is more than 125 percent of, and more than two 
percentage points greater than, 11 percent. However, the plan provides 
that QMACs may be used to meet the requirements of section 
401(k)(3)(A)(ii) to the extent needed under that section. Under this 
provision, the plan takes QMACs of one percent of compensation into 
account for each nonhighly compensated employee in applying the actual 
deferral percentage test. After this adjustment, the actual deferral and 
actual contribution percentages are as follows:

------------------------------------------------------------------------
                                                  Actual       Actual   
                                                 deferral   contribution
                                                percentage   percentage 
------------------------------------------------------------------------
Highly compensated...........................           15             5
Nonhighly compensated........................           12             4
------------------------------------------------------------------------

    (iii) The elective contributions and QMACs taken into account under 
section 401(k) meet the requirements of section 401(k)(3)(A)(ii)

[[Page 239]]

because 15 percent is 125 percent of 12 percent. The remaining matching 
contributions meet the requirements of section 401(m) because five 
percent is 125 percent of four percent.

    (c) Nonforfeitability requirement--(1) General rule. A cash or 
deferred arrangement satisfies this paragraph (c) only if the elective 
contributions meet each of the following requirements:
    (i) Each employee's right to the amount attributable to elective 
contributions is immediately nonforfeitable within the meaning of 
section 411, and would be nonforfeitable under the plan regardless of 
the age and service of the employee or whether the employee is employed 
on a specific date. A contribution that is subject to forfeitures or 
suspensions permitted by section 411(a)(3) does not satisfy the 
requirements of this paragraph (c).
    (ii) The contributions are disregarded for purposes of applying 
section 411(a) to other contributions or benefits.
    (iii) The contributions remain nonforfeitable even if the employee 
makes no additional elective contributions under a cash or deferred 
arrangement.
    (2) Example. The provisions of this paragraph (c) are illustrated by 
the following example:

    Example. (i) Employees B and C are covered by Employer Y's stock 
bonus plan, which includes a cash or deferred arrangement. Under the 
plan, Employer Y makes a nonelective contribution on behalf of each 
employee equal to four percent of compensation. All employees 
participating in the plan have a nonforfeitable right to a percentage of 
their accrued benefit derived from this contribution as shown in the 
following table:

------------------------------------------------------------------------
                                                         Nonforfeitable 
                   Years of service                        percentage   
------------------------------------------------------------------------
Less than 1..........................................                  0
1....................................................                 20
2....................................................                 40
3....................................................                 60
4....................................................                 80
5 or more............................................                100
------------------------------------------------------------------------

    (ii) B and C have three and six years of service, respectively. 
Employer Y also permits employees to elect to defer up to 6 percent of 
compensation through salary reduction agreements. Amounts deferred under 
these agreements are nonforfeitable at all times. In accordance with 
paragraph (c)(1)(i) of this section, the nonforfeitable percentage of 
Employer Y's nonelective contribution on behalf of B and C may not be 
treated as a qualified nonelective contribution under paragraph (b)(3) 
of this section, because these amounts are nonforfeitable by reason of 
the completion by B and C of a stated number of years of service, and 
not regardless of the age and service of B and C.

    (d) Distribution limitation--(1) General rule. A cash or deferred 
arrangement satisfies this paragraph (d) only if amounts attributable to 
elective contributions may not be distributed before one of the 
following events, and any distributions so permitted also satisfy the 
requirements of paragraphs (d) (2) through (6) of this section (to the 
extent applicable):
    (i) The employee's retirement, death, disability, or separation from 
service.
    (ii) In the case of a profit-sharing or stock bonus plan, the 
employee's attainment of age 59\1/2\, or the employee's hardship.
    (iii) For plan years beginning after December 31, 1984, the 
termination of the plan.
    (iv) For plan years beginning after December 31, 1984, the date of 
the sale or other disposition by a corporation of substantially all the 
assets (within the meaning of section 409(d)(2)) used by the corporation 
in a trade or business of the corporation to an unrelated corporation.
    (v) For plan years beginning after December 31, 1984, the date of 
the sale or other disposition by a corporation of its interest in a 
subsidiary (within the meaning of section 409(d)(3)) to an unrelated 
entity or individual.
    (2) Rules applicable to hardship distributions--(i) Distribution 
must be on account of hardship. A distribution is treated as made after 
an employee's hardship for purposes of paragraph (d)(1)(ii) of this 
section only if it is made on account of the hardship. For purposes of 
this rule, a distribution is made on account of hardship only if the 
distribution both is made on account of an immediate and heavy financial 
need of the employee and is necessary to satisfy the financial need. The 
determination of the existence of an immediate and heavy financial need 
and of the amount necessary to meet the need must be made in accordance 
with nondiscriminatory and objective standards set forth in the plan. 
See section 411(d)(6) and the regulations thereunder.

[[Page 240]]

    (ii) Limit on distributable amount. For plan years beginning after 
December 31, 1988, a distribution on account of hardship must be limited 
to the distributable amount. The distributable amount is equal to the 
employee's total elective contributions as of the date of distribution, 
reduced by the amount of previous distributions on account of hardship. 
If the plan so provides, the employee's total elective contributions 
used in determining the distributable amount may be increased by income 
allocable to elective contributions, by amounts treated as elective 
contributions under paragraph (b)(5) of this section, and by income 
allocable to amounts treated as elective contributions. The 
distributable amount may only include amounts that were credited to the 
employee's account as of a date specified in the plan that is no later 
than December 31, 1988, or if later, the end of the last plan year 
ending before July 1, 1989 (or such later date provided in paragraph (h) 
of this section).
    (iii) General hardship distribution standards--(A) Immediate and 
heavy financial need. Whether an employee has an immediate and heavy 
financial need is to be determined based on all relevant facts and 
circumstances. Generally, for example, the need to pay the funeral 
expenses of a family member would constitute an immediate and heavy 
financial need. A distribution made to an employee for the purchase of a 
boat or television would generally not constitute a distribution made on 
account of an immediate and heavy financial need. A financial need may 
be immediate and heavy even if it was reasonably foreseeable or 
voluntarily incurred by the employee.
    (B) Distribution necessary to satisfy financial need. A distribution 
is not treated as necessary to satisfy an immediate and heavy financial 
need of an employee to the extent the amount of the distribution is in 
excess of the amount required to relieve the financial need or to the 
extent the need may be satisfied from other resources that are 
reasonably available to the employee. This determination generally is to 
be made on the basis of all relevant facts and circumstances. For 
purposes of this paragraph, the employee's resources are deemed to 
include those assets of the employee's spouse and minor children that 
are reasonably available to the employee. Thus, for example, a vacation 
home owned by the employee and the employee's spouse, whether as 
community property, joint tenants, tenants by the entirety, or tenants 
in common, generally will be deemed a resource of the employee. However, 
property held for the employee's child under an irrevocable trust or 
under the Uniform Gifts to Minors Act is not treated as a resource of 
the employee. The amount of an immediate and heavy financial need may 
include any amounts necessary to pay any federal, state, or local income 
taxes or penalties reasonably anticipated to result from the 
distribution. A distribution generally may be treated as necessary to 
satisfy a financial need if the employer relies upon the employee's 
written representation, unless the employer has actual knowledge to the 
contrary, that the need cannot reasonably be relieved:
    (1) Through reimbursement or compensation by insurance or otherwise;
    (2) By liquidation of the employee's assets;
    (3) By cessation of elective contributions or employee contributions 
under the plan; or
    (4) By other distributions or nontaxable (at the time of the loan) 
loans from plans maintained by the employer or by any other employer, or 
by borrowing from commercial sources on reasonable commercial terms, in 
an amount sufficient to satisfy the need.

For purposes of this paragraph (d)(2)(iii)(B), a need cannot reasonably 
be relieved by one of the actions listed above if the effect would be to 
increase the amount of the need. For example, the need for funds to 
purchase a principal residence cannot reasonably be relieved by a plan 
loan if the loan would disqualify the employee from obtaining other 
necessary financing.
    (iv) Deemed hardship distribution standards--(A) Deemed immediate 
and heavy financial need. A distribution is deemed to be on account of 
an immediate and heavy financial need of the employee if the 
distribution is for:

[[Page 241]]

    (1) Expenses for medical care described in section 213(d) previously 
incurred by the employee, the employee's spouse, or any dependents of 
the employee (as defined in section 152) or necessary for these persons 
to obtain medical care described in section 213(d);
    (2) Costs directly related to the purchase of a principal residence 
for the employee (excluding mortgage payments);
    (3) Payment of tuition, related educational fees, and room and board 
expenses, for the next 12 months of post-secondary education for the 
employee, or the employee's spouse, children, or dependents (as defined 
in section 152); or
    (4) Payments necessary to prevent the eviction of the employee from 
the employee's principal residence or foreclosure on the mortgage on 
that residence.
    (B) Distribution deemed necessary to satisfy financial need. A 
distribution is deemed necessary to satisfy an immediate and heavy 
financial need of an employee if all of the following requirements are 
satisfied:
    (1) The distribution is not in excess of the amount of the immediate 
and heavy financial need of the employee. The amount of an immediate and 
heavy financial need may include any amounts necessary to pay any 
federal, state, or local income taxes or penalties reasonably 
anticipated to result from the distribution.
    (2) The employee has obtained all distributions, other than hardship 
distributions, and all nontaxable (at the time of the loan) loans 
currently available under all plans maintained by the employer.
    (3) The plan and all other plans maintained by the employer limit 
the employee's elective contributions for the next taxable year to the 
applicable limit under section 402(g) for that year minus the employee's 
elective contributions for the year of the hardship distribution.
    (4) The employee is prohibited, under the terms of the plan or an 
otherwise legally enforceable agreement, from making elective 
contributions and employee contributions to the plan and all other plans 
maintained by the employer for at least 12 months after receipt of the 
hardship distribution. For this purpose the phrase ``all other plans 
maintained by the employer'' means all qualified and nonqualified plans 
of deferred compensation maintained by the employer. The phrase includes 
a stock option, stock purchase, or similar plan, or a cash or deferred 
arrangement that is part of a cafeteria plan within the meaning of 
section 125. However, it does not include the mandatory employee 
contribution portion of a defined benefit plan. It also does not include 
a health or welfare benefit plan, including one that is part of a 
cafeteria plan within the meaning of section 125. See Sec. 1.401(k)-
1(g)(4)(i) for the continued treatment of suspended employees as 
eligible employees.
    (C) Commissioner may expand standards. The Commissioner may expand 
the list of deemed immediate and heavy financial needs and may prescribe 
additional methods for distributions to be deemed necessary to satisfy 
an immediate and heavy financial need only in revenue rulings, notices, 
and other documents of general applicability, and not on an individual 
basis.
    (3) Rules applicable to distributions upon plan termination. A 
distribution may not be made under paragraph (d)(1)(iii) of this section 
if the employer establishes or maintains a successor plan. For purposes 
of this rule, the definition of the term ``employer'' contained in 
paragraph (g)(6) of this section is applied as of the date of plan 
termination, and a successor plan is any other defined contribution plan 
maintained by the same employer. However, if at all times during the 24-
month period beginning 12 months before the termination, fewer than two 
percent of the employees who were eligible under the defined 
contribution plan that includes the cash or deferred arrangement as of 
the date of plan termination are eligible under the other defined 
contribution plan, the other plan is not a successor plan. The term 
``defined contribution plan'' means a plan that is a defined 
contribution plan as defined in section 414(i), but does not include an 
employee stock ownership plan as defined in section 4975(e) or 409(a) or 
a simplified employee pension as defined in section 408(k). A plan is a

[[Page 242]]

successor plan only if it exists at any time during the period beginning 
on the date of plan termination and ending 12 months after distribution 
of all assets from the terminated plan.
    (4) Rules applicable to distributions upon sale of assets or 
subsidiary--(i) Seller must maintain the plan. A distribution may be 
made under section 401(k)(10) and paragraph (d)(1) (iv) or (v) of this 
section only from a plan that the seller continues to maintain after the 
disposition. This requirement is satisfied if and only if the purchaser 
does not maintain the plan after the disposition. A purchaser maintains 
the plan of the seller if it adopts the plan or otherwise becomes an 
employer whose employees accrue benefits under the plan. A purchaser 
also maintains the plan if the plan is merged or consolidated with, or 
any assets or liabilities are transferred from the plan to a plan 
maintained by the purchaser in a transaction subject to section 
414(l)(1). A purchaser is not treated as maintaining the plan merely 
because a plan that it maintains accepts elective transfers described in 
Sec. 1.411(d)-4, Q&A-3(b)(1), or rollover contributions of amounts 
distributed by the plan (including distributions that the recipient 
elects, under section 401(a)(31), to have paid in a direct rollover to 
the plan of the purchaser).
    (ii) Employee must continue employment. A distribution may be made 
under paragraph (d)(1) (iv) or (v) of this section only to an employee 
who continues employment with the purchaser of assets or with the 
subsidiary, whichever is applicable.
    (iii) Distribution must be in connection with disposition of assets 
or subsidiary. Elective contributions may not be distributed under 
paragraph (d)(1) (iv) or (v) of this section except in connection with 
the disposition that results in the employee's transfer to the 
purchaser. Whether a distribution is made in connection with the 
disposition of assets or a subsidiary depends on all of the facts and 
circumstances. Except in unusual circumstances, however, a distribution 
will not be treated as having been made in connection with a disposition 
unless it was made by the end of the second calendar year after the 
calendar year in which the disposition occurred.
    (iv) Definitions--(A) Substantially all. For purposes of paragraph 
(d)(1)(iv) of this section, the sale of ``substantially all'' the assets 
used in a trade or business means the sale of at least 85 percent of the 
assets.
    (B) Unrelated employer. For purposes of paragraph (d)(1) (iv) and 
(v) of this section, an ``unrelated'' entity or individual is one that 
is not required to be aggregated with the seller under section 414 (b), 
(c), (m), or (o) after the sale or other disposition.
    (5) Lump sum requirement for certain distributions. After March 31, 
1988, a distribution may be made under paragraph (d)(1) (iii), (iv), or 
(v) of this section only if it is a lump sum distribution. The term lump 
sum distribution has the meaning provided in section 402(d)(4), without 
regard to subparagraphs (A) (i) through (iv), (B), and (F) of that 
section.
    (6) Rules applicable to all distributions--(i) Impermissible 
distributions. Amounts attributable to elective contributions may not be 
distributed on account of any event not described in this paragraph (d), 
such as completion of a stated period of plan participation or the lapse 
of a fixed number of years. For example, if excess deferrals (and 
income) for an employee's taxable year are not distributed within the 
time prescribed in Sec. 1.402(g)-1(e) (2) or (3), the amounts may be 
distributed only on account of an event described in this paragraph (d).
    (ii) Deemed distributions. The cost of life insurance (P.S. 58 
costs) is not treated as a distribution for purposes of section 
401(k)(2) and this paragraph. The making of a loan is not treated as a 
distribution, even if the loan is secured by the employee's accrued 
benefit attributable to elective contributions or is includible in the 
employee's income under section 72(p). However, the reduction, by reason 
of default on a loan, of an employee's accrued benefit derived from 
elective contributions is treated as a distribution.
    (iii) ESOP dividend distributions. A plan does not fail to satisfy 
the requirements of this paragraph (d) merely by reason of a dividend 
distribution described in section 404(k)(2).

[[Page 243]]

    (iv) Limitations apply after transfer. The limitations of this 
paraqraph (d) generally continue to apply to amounts attributable to 
elective contributions (including amounts treated as elective 
contributions) that are transferred to another qualified plan of the 
same or another employer. Thus, the transferee plan will generally fail 
to satisfy the requirements of section 401(a) and this section if 
transferred amounts may be distributed before the times specified in 
this paragraph (d). The limitations of paragraph (d) of this section 
cease to apply after the transfer, however, if the amounts could have 
been distributed at the time of the transfer (other than on account of 
hardship), and the transfer is an elective transfer described in 
Sec. 1.411(d)-4, Q&A-3(b)(1). The limitations of paragraph (d) of this 
section also do not apply to amounts distributed from another plan that 
the recipient elects under section 401(a)(31) to have paid in a direct 
rollover to the plan.
    (v) Required consent. A distribution may be made under this 
paragraph (d) only if any consent or election required under section 
411(a)(11) or 417 is obtained.
    (7) Examples. The provisions of this paragraph (d) are illustrated 
by the following examples:

    Example 1. Employer C maintains a profit-sharing plan that includes 
a cash or deferred arrangement. Elective contributions under the 
arrangement may be withdrawn for any reason after two years following 
the end of the plan year in which the contributions were made. Because 
the plan permits distributions of elective contributions before the 
occurrence of one of the events specified in section 401(k)(2)(B) and 
this paragraph (d), the plan includes a nonqualified cash or deferred 
arrangement and the elective contributions are currently includible in 
income under section 402.
    Example 2. Employer D maintains a pre-ERISA money purchase plan that 
includes a cash or deferred arrangement. Elective contributions under 
the arrangement may be distributed to an employee on account of 
hardship. Under paragraph (d)(1) of this section, hardship is a 
distribution event only in a profit-sharing or stock bonus plan. Since 
elective contributions under the arrangement may be distributed before a 
distribution event occurs, the cash or deferred arrangement does not 
satisfy this paragraph (d), and is not a qualified cash or deferred 
arrangement. Moreover, the plan is not a qualified plan because a 
pension plan may not provide for payment of benefits upon hardship. See 
Sec. 1.401-1(b)(1)(i).

    (e) Additional requirements for qualified cash or deferred 
arrangements--(1) Qualified profit-sharing, stock bonus, pre-ERISA money 
purchase or rural cooperative plan requirement. A cash or deferred 
arrangement satisfies this paragraph (e) only if the plan of which it is 
a part is a profit-sharing, stock bonus, pre-ERISA money purchase or 
rural cooperative plan that otherwise satisfies the requirements of 
section 401(a) (taking into account the cash or deferred arrangement). A 
plan that includes a cash or deferred arrangement may provide for other 
contributions, including employer contributions (other than elective 
contributions), employee contributions, or both. See paragraph (e)(7) of 
this section, however, for limitations on the extent to which elective 
contributions under a cash or deferred arrangement may be taken into 
account in determining whether the other contributions satisfy the 
requirements of section 401(a).
    (2) Cash availability requirement. A cash or deferred arrangement 
satisfies this paragraph (e) only if the arrangement provides that the 
amount that each eligible employee may defer as an elective contribution 
is available to the employee in cash. Thus, for example, if an eligible 
employee is provided the option to receive a taxable benefit (other than 
cash) or to have the employer contribute on the employee's behalf to a 
profit-sharing plan an amount equal to the value of the taxable benefit, 
the arrangement is not a qualified cash or deferred arrangement. 
Similarly, if an employee has the option to receive a specified amount 
in cash or to have the employer contribute an amount in excess of the 
specified cash amount to a profit-sharing plan on the employee's behalf, 
any contribution made by the employer on the employee's behalf in excess 
of the specified cash amount is not treated as made pursuant to a 
qualified cash or deferred arrangement. This cash availability 
requirement applies even if the cash or deferred arrangement is part of 
a cafeteria plan within the meaning of section 125.

[[Page 244]]

    (3) Separate accounting requirement--(i) General rule. A cash or 
deferred arrangement satisfies this paragraph (e) only if the portion of 
an employee's benefit subject to the requirements of paragraphs (c) and 
(d) of this section is determined by an acceptable separate accounting 
between that portion and any other benefits. Separate accounting is not 
acceptable unless gains, losses, withdrawals, and other credits or 
charges are separately allocated on a reasonable and consistent basis to 
the accounts subject to the requirements of paragraphs (c) and (d) of 
this section and to other accounts. Subject to section 401(a)(4), 
forfeitures are not required to be allocated to the accounts in which 
benefits are subject to paragraphs (c) and (d) of this section.
    (ii) Failure to satisfy separate accounting requirement. The 
requirements of paragraph (e)(3)(i) of this section are treated as 
satisfied if all amounts held under a plan that includes a cash or 
deferred arrangement or under another plan, contributions under which 
are taken into account under the arrangement for purposes of paragraph 
(b) of this section are treated as attributable to elective 
contributions subject to the requirements of paragraphs (c) and (d) of 
this section.
    (4) Limitations on cash or deferred arrangements of state and local 
governments and tax-exempt organizations--(i) A cash or deferred 
arrangement does not satisfy the requirements of this paragraph (e) if 
the arrangement is adopted:
    (A) After May 6, 1986, by a state or local government or political 
subdivision thereof, or any agency or instrumentality thereof (``a 
governmental unit''), or
    (B) After July 1, 1986, by any organization exempt from tax under 
subtitle A of the Internal Revenue Code.

For purposes of paragraph (e)(4) of this section, whether an 
organization is exempt from tax under subtitle A of the Internal Revenue 
Code is determined without regard to section 414 (b), (c), (m) or (o).
    (ii) A cash or deferred arrangement is treated as adopted after the 
dates described in paragraph (e)(4)(i) of this section with respect to 
all employees of any employer that adopts the arrangement after such 
dates. If an employer adopted an arrangement prior to such dates, all 
employees of the employer may participate in the arrangement.
    (iii) For purposes of this paragraph (e)(4), an employer that has 
made a legally binding commitment to adopt a cash or deferred 
arrangement is treated as having adopted the arrangement on that date.
    (iv) If a governmental unit adopted a cash or deferred arrangement 
before May 7, 1986, then any cash or deferred arrangement adopted by the 
unit at any time is treated as adopted before that date.
    (v) This paragraph (e)(4) does not apply to a rural cooperative 
plan.
    (vi) For purposes of this paragraph (e)(4), an employee 
representative is treated as an employee of a tax exempt employer even 
if the employee could be treated as an employee by another employer 
under Sec. 1.413-1(i)(1).
    (5) One-year eligibility requirement. For plan years beginning after 
December 31, 1988, or such later date provided in paragraph (h) of this 
section, a cash or deferred arrangement satisfies this paragraph (e) 
only if no employee is required to complete a period of service greater 
than one year (determined without regard to section 410(a)(1)(B)(i)) 
with the employer maintaining the plan to be eligible to make an 
election under the arrangement.
    (6) Other benefits not contingent upon elective contributions--(i) 
General rule. For plan years beginning after December 31, l988, or such 
later date provided in paragraph (h) of this section, a cash or deferred 
arrangement satisfies this paragraph (e) only if no other benefit is 
conditioned (directly or indirectly) upon the employee's electing to 
make or not to make elective contributions under the arrangement. The 
preceding sentence does not apply to any matching contribution (as 
defined in section 401(m)) made by reason of such an election or to any 
benefit that is provided at the employee's election under a plan 
described in section 125(d) in lieu of an elective contribution under a 
qualified cash or deferred arrangement.
    (ii) Definition of other benefits. Other benefits include, but are 
not limited to, benefits under a defined benefit plan; nonelective 
employer contributions under a defined contribution plan; the

[[Page 245]]

availability, cost, or amount of health benefits; vacations or vacation 
pay; life insurance; dental plans; legal services plans; loans 
(including plan loans); financial planning services; subsidized 
retirement benefits; stock options; property subject to section 83; and 
dependent care assistance. Also, increases in salary and bonuses (other 
than those actually subject to the cash or deferred election) are 
benefits for purposes of this paragraph (e)(6). The ability to make 
after-tax employee contributions is a benefit, but that benefit is not 
contingent upon an employee's electing to make or not make elective 
contributions under the arrangement merely because the amount of 
elective contributions reduces dollar-for-dollar the amount of after-tax 
employee contributions that may be made. Benefits under any other plan 
or arrangement (whether or not qualified) are not contingent upon an 
employee's electing to make or not to make elective contributions under 
a cash or deferred arrangement merely because the elective contributions 
are or are not taken into account as compensation under the other plan 
or arrangement for purposes of determining benefits.
    (iii) Effect of certain statutory limits. A benefit under a defined 
benefit plan that is contingent upon elective contributions solely by 
reason of the combined plan fraction of section 415(e) is not treated as 
contingent for purposes of this paragraph (e)(6). Similarly, any benefit 
under an excess benefit plan described in section 3(36) of the Employee 
Retirement Income Security Act of l974 that is dependent on the 
employee's electing to make or not to make elective contributions is not 
treated as contingent.
    (iv) Nonqualified deferred compensation. Participation in a 
nonqualified deferred compensation plan is treated as contingent for 
purposes of this paragraph (e)(6) only to the extent that an employee 
may receive additional deferred compensation under the nonqualified plan 
to the extent the employee makes or does not make elective 
contributions. Deferred compensation under a nonqualified plan of 
deferred compensation that is dependent on an employee's having made the 
maximum elective deferrals under section 402(g) or the maximum elective 
contributions permitted under the terms of the plan also is not treated 
as contingent.
    (v) Plan loans and distributions. A loan or distribution of elective 
contributions is not a benefit conditioned on an employee's electing to 
make or not make elective contributions under the arrangement merely 
because the amount of the loan or distribution is based on the amount of 
the employee's account balance.
    (vi) Examples. The provisions of this paragraph (e)(6) are 
illustrated by the following examples.

    Example 1. Employer T maintains a cash or deferred arrangement for 
all of its employees. Employer T also maintains a nonqualified deferred 
compensation plan for two highly paid executives, Employees R and C. 
Under the terms of the nonqualified deferred compensation plan, R and C 
are eligible to participate only if they do not make elective 
contributions under the cash or deferred arrangement. Participation in 
the nonqualified plan is a contingent benefit for purposes of this 
paragraph (e)(6), because R's and C's participation is conditioned on 
their electing not to make elective contributions under the cash or 
deferred arrangement.
    Example 2. Employer T maintains a cash or deferred arrangement for 
all its employees. Employer T also maintains a nonqualified deferred 
compensation plan for two highly paid executives, Employees R and C. 
Under the terms of the arrangements, Employees R and C may defer a 
maximum of 10 percent of their compensation, and may allocate their 
deferral between the cash or deferred arrangement and the nonqualified 
deferred compensation plan in any way they choose (subject to the 
overall 10 percent maximum). Because the maximum deferral available 
under the nonqualified deferred compensation plan depends on the 
elective deferrals made under the cash or deferred arrangement, the 
right to participate in the nonqualified plan is a contingent benefit 
for purposes of paragraph (e)(6).

    (7) Coordination with other plans. For plan years beginning after 
December 31, 1988, or such later date provided in paragraph (h) of this 
section, a cash or deferred arrangement satisfies this paragraph (e) 
only if no elective contributions (or qualified matching contributions 
treated as elective contributions under paragraph (b)(5) of this 
section) under the arrangement are taken into account for purposes of 
determining whether any other contributions

[[Page 246]]

under any plan (including the plan to which the elective contributions 
are made) satisfy the requirements of section 401(a). Indeed, the 
portion of a plan that consists of elective contributions is treated as 
a separate plan for purposes of sections 401(a)(4) and 410(b). See 
Sec. 1.410(b)-7(c)(1). Similarly, elective contributions under a cash or 
deferred arrangement generally may not be taken into account in 
determining whether a plan satisfies the minimum contribution or benefit 
requirements of section 416. See Sec. 1.416-1, M-20. However, qualified 
nonelective contributions that are treated as elective contributions for 
purposes of section 401(k)(3) under paragraph (b)(5) of this section may 
be used to enable a plan to satisfy the minimum contribution or benefit 
requirements under section 416. See Sec. 1.416-1, M-18. This paragraph 
(e) does not apply for purposes of determining whether a plan satisfies 
the average benefit percentage requirement of section 410(b)(2)(A)(ii). 
See also Sec. 1.401(m)-1(b)(5) for circumstances under which elective 
contributions may be used to determine whether a plan satisfies the 
requirements of section 401(m).
    (8) Recordkeeping requirements. For plan years beginning after 
December 31, 1986, or such later date provided in paragraph (h) of this 
section, a cash or deferred arrangement satisfies this paragraph (e) 
only if the employer maintains the records necessary to demonstrate 
compliance with the applicable nondiscrimination requirements of 
paragraph (b) of this section, including the extent to which qualified 
nonelective contributions and qualified matching contributions are taken 
into account.
    (9) Consistent application of separate line of business rules. If an 
employer is treated as operating qualified separate lines of business 
under section 414(r) in accordance with Sec. 1.414(r)-1(b) for purposes 
of applying section 410(b), and applies the special rule for employer-
wide plans in Sec. 1.414(r)-1(c)(2)(ii) to the portion of the plan that 
consists of contributions under the cash or deferred arrangement, then 
the requirements of section 401(k) and this section must be applied on 
an employer-wide rather than a qualified-separate-line-of-business basis 
to all of the plans or portions of plans taken into account in 
determining whether the cash or deferred arrangement is a qualified cash 
or deferred arrangement, regardless of whether those plans or portions 
of plans also satisfy the requirements necessary to apply the special 
rule in Sec. 1.414(r)-1(c)(2)(ii). Conversely, if an employer is treated 
as operating qualified separate lines of business under section 414(r) 
in accordance with Sec. 1.414(r)-1(b) for purposes of applying section 
410(b), and does not apply the special rule for employer-wide plans in 
Sec. 1.414(r)-1(c)(2)(ii) to the portion of the plan that consists of 
contributions under the cash or deferred arrangement, then the 
requirements of section 401(k) and this section must be applied on a 
qualified-separate-line-of-business rather than an employer-wide basis 
to all of the plans or portions of plans taken into account in 
determining whether the cash or deferred arrangement is a qualified cash 
or deferred arrangement, regardless of whether one or more of those 
plans or portions of plans is tested under the special rule 
Sec. 1.414(r)-1(c)(2)(ii). This requirement applies solely for purposes 
of determining whether the cash or deferred arrangement is a qualified 
cash or deferred arrangement under section 401(k) and this section. The 
rules of this paragraph are illustrated by the following example.

    Example. (i) Employer A maintains a profit-sharing plan that 
includes a cash or deferred arrangement in which all of the employees of 
Employer A are eligible to participate. Employer A is treated as 
operating qualified separate lines of business under section 414(r) in 
accordance with Sec. 1.414(r)-1(b) for purposes of applying section 
410(b). However, Employer A applies the special rule for employer-wide 
plans in Sec. 1.414(r)-1(c)(2)(ii) to the portion of its profit-sharing 
plan that consists of elective contributions under the cash or deferred 
arrangement (and to no other plans or portions of plans). Employer A 
makes qualified nonelective contributions to the profit-sharing plan for 
the 1995 plan year, and the profit-sharing plan provides that these 
qualified nonelective contributions may be used to satisfy the actual 
deferral percentage test.
    (ii) Under these facts, the requirements of sections 401(a)(4) and 
410(b) must be applied on an employer-wide rather than a qualified-

[[Page 247]]

separate-line-of-business basis in determining whether the qualified 
nonelective contributions made to the profit-sharing plan satisfy the 
requirements of Sec. 1.401(k)-1(b)(5), and thus whether they may be 
taken into account under the actual deferral percentage test. Therefore, 
in order for the nonelective contributions to be used to satisfy the 
actual deferral percentage test, both (1) the total amount of 
nonelective contributions under the profit-sharing plan, including the 
qualified nonelective contributions to be used to satisfy the actual 
deferral percentage test, and (2) the total amount of nonelective 
contributions under the profit-sharing plan, excluding the qualified 
nonelective contributions to be used to satisfy the actual deferral 
percentage test, must satisfy the requirements of section 401(a)(4) on 
an employer-wide basis. Of course, in order for the profit-sharing plan 
to satisfy section 401(a), it must still satisfy sections 410(b) and 
401(a)(4) on a qualified-separate-line-of-business basis.
    (f) Correction of excess contributions--(1) General rule--(i)  
Permissible correction methods. A cash or deferred arrangement does not 
fail to satisfy the requirements of section 401(k)(3) or paragraph 
(b)(2) of this section with respect to the amount of elective 
contributions under the arrangement if the employer, in accordance with 
the terms of the plan that includes the cash or deferred arrangement and 
paragraph (b)(5) of this section, makes qualified nonelective 
contributions or qualified matching contributions that are treated as 
elective contributions under the arrangement and that, in combination 
with the elective contributions, satisfy the requirements of paragraph 
(b)(2) of this section. In addition, a cash or deferred arrangement does 
not fail to satisfy the requirements of section 401(k)(3) or paragraph 
(b)(2) of this section for a plan year with respect to the amount of the 
elective contributions under the arrangement if, in accordance with the 
terms of the plan that includes the cash or deferred arrangement, excess 
contributions are recharacterized in accordance with paragraph (f)(3) of 
this section, or excess contributions (and income allocable thereto) are 
distributed in accordance with paragraph (f)(4) of this section.
    (ii) Combination of correction methods. A plan may use any of the 
correction methods described in paragraph (f)(1)(i) of this section, may 
limit elective contributions in a manner designed to prevent excess 
contributions from being made, or may use a combination of these 
methods, to avoid or correct excess contributions. Thus, for example, a 
portion of the excess contributions for a highly compensated employee 
may be recharacterized under paragraph (f)(3) of this section, and the 
remaining portion of the excess contributions may be distributed under 
paragraph (f)(4) of this section. A plan may require or permit a highly 
compensated employee to elect whether any excess contributions are to be 
recharacterized or distributed.
    (iii) Impermissible correction methods. Excess contributions for a 
plan year may not remain unallocated or be allocated to a suspense 
account for allocation to one or more employees in any future year. In 
addition, excess contributions may not be corrected using the 
retroactive correction rules of Sec. 1.401(a)(4)-11(g). See 
Sec. 1.401(a)(4)-11(g) (3)(vii) and (5). See paragraph (f)(6) of this 
section for the effects of a failure to correct excess contributions.
    (iv) Partial distributions. Any distribution of less than the entire 
amount of excess contributions with respect to any highly compensated 
employee is treated as a pro rata distribution of excess contributions 
and allocable income or loss.
    (2) Amount of excess contributions. The amount of excess 
contributions for a highly compensated employee for a plan year is the 
amount (if any) by which the employee's elective contributions must be 
reduced for the employee's actual deferral ratio to equal the highest 
permitted actual deferral ratio under the plan. To calculate the highest 
permitted actual deferral ratio under a plan, the actual deferral ratio 
of the highly compensated employee with the highest actual deferral 
ratio is reduced by the amount required to cause the employee's actual 
deferral ratio to equal the ratio of the highly compensated employee 
with the next highest actual deferral ratio. If a lesser reduction would 
enable the arrangement to satisfy the actual deferral percentage test, 
only this lesser reduction may be made. This process must be repeated 
until the cash or deferred arrangement satisfies the actual deferral 
percentage test. The highest actual deferral ratio remaining under the 
plan

[[Page 248]]

after leveling is the highest permitted actual deferral ratio. Thus, for 
each highly compensated employee, the amount of excess contributions for 
a plan year is equal to the employee's elective contributions, plus 
qualified nonelective contributions and qualified matching contributions 
taken into account in determining the employee's actual deferral ratio 
under paragraph (g)(1) of this section, minus the amount determined by 
multiplying the employee's actual deferral ratio (determined after 
application of this paragraph (f)(2)) by the compensation used in 
determining the ratio. In no case may the amount of excess contributions 
to be recharacterized or distributed for a plan year with respect to any 
highly compensated employee exceed the amount of elective contributions 
made on behalf of the highly compensated employee for the plan year.
    (3) Recharacterization of excess contributions--(i) General rule. 
Excess contributions are recharacterized in accordance with this 
paragraph (f)(3) only if the excess contributions are treated as 
described in paragraph (f)(3)(ii) of this section, and all of the 
conditions set forth in paragraph (f)(3)(iii) of this section are 
satisfied.
    (ii) Treatment of recharacterized excess contributions.
    (A) Excess contributions recharacterized under this paragraph (f)(3) 
are includable in the employee's gross income on the earliest dates any 
elective contribution made on behalf of the employee during the plan 
year would have been received by the employee had the employee 
originally elected to receive the amounts in cash, or on such later date 
permitted in paragraph (f)(3)(iv) of this section. The recharacterized 
excess contributions must be treated as employee contributions for 
purposes of section 72, section 401(a)(4) and 401(m), and paragraphs (b) 
and (d) of this section. This requirement is not treated as satisfied 
unless:
    (1) The payor or plan administrator reports the recharacterized 
excess contributions as employee contributions to the Internal Revenue 
Service and the employee by--
    (i) Timely providing such forms as the Commissioner may designate to 
the employer and to employees whose excess contributions are 
recharacterized under this paragraph (f)(3); and
    (ii) Timely taking such other action as the Commissioner may 
require; and
    (2) The plan administrator accounts for the amounts as contributions 
by the employee for purposes of sections 72 and 6047.
    (B) Recharacterized excess contributions continue to be treated as 
employer contributions that are elective contributions for all other 
purposes under the Internal Revenue Code, including sections 401(a) 
(other than 401(a)(4) and 401(m)), 404, 409, 411, 412, 415, 416, and 
417. Thus, for example, recharacterized excess contributions remain 
subject to the requirements of paragraph (c) of this section; must be 
deducted under section 404; and are treated as employer contributions 
described in section 415(c)(2)(A) and Sec. 1.415-6(b). In addition, 
these amounts are not treated as compensation for purposes of sections 
404 and 415, and may be treated as compensation for purposes of sections 
401(a)(4), 401(a)(5), 401(k), 401(l) and 414(s) only to the extent that 
elective contributions may be treated, and are treated under the plan, 
as compensation. See Sec. 1.414(s)-1(c)(4)(i). Recharacterized excess 
contributions that relate to plan years ending on or before October 24, 
1988, may be treated as either employer contributions or employee 
contributions for purposes of paragraph (d) of this section. The amount 
of excess contributions included in an employee's gross income is 
reduced as provided under paragraph (f)(5)(i)(B) of this section.
    (iii) Additional rules--(A) Time of recharacterization. Excess 
contributions may not be recharacterized under this paragraph (f)(3) 
after the later of October 24, 1988, or 2\1/2\ months after the close of 
the plan year to which the recharacterization relates. 
Recharacterization is deemed to have occurred on the date on which the 
last of those highly compensated employees with excess contributions to 
be recharacterized is notified in accordance with paragraph 
(f)(3)(ii)(A) of this section. The Commissioner may designate the means 
by which this notification is to be provided.

[[Page 249]]

    (B) Employee contributions must be permitted under plan. The amount 
of recharacterized excess contributions, in combination with the 
employee contributions actually made by the highly compensated employee, 
may not exceed the maximum amount of employee contributions (determined 
without regard to the actual contribution percentage test of section 
401(m)(2)) that the highly compensated employee could have made under 
the provisions of the plan in effect on the first day of the plan year 
in the absence of recharacterization. See Sec. 1.401(m)-1(a)(2) for 
requirements relating to the availability of employee contributions.
    (C) Plans under which excess contributions may be recharacterized. 
For plan years beginning after December 31, 1991, elective contributions 
may be recharacterized under this paragraph (f)(3) only under the plan 
under which they are made or under a plan with which that plan could be 
aggregated under Sec. 1.410(b)-7(d) after application of the mandatory 
disaggregation rules of Sec. 1.410(b)-7(c), as modified in 
Sec. 1.401(k)-1(g)(11). For plan years beginning before that date and 
after December 31, 1988, or such later date provided under paragraph (h) 
of this section, elective contributions may be recharacterized under 
this paragraph (f)(3) only under the plan under which they are made or 
under a plan with the same plan year as that plan.
    (iv) Transition rules. If amounts recharacterized for any plan year 
were not previously included in income, they must be treated as received 
by employees for income tax purposes on the first day of the first plan 
year ending after 1987. If notice of recharacterization was provided to 
the affected highly compensated employees by October 24, 1988, 
recharacterization is deemed to have occurred 2\1/2\ months after the 
close of the plan year and the penalty tax of section 4979 will not be 
imposed. The rules in this paragraph (f)(3)(iv) are effective only for 
plan years ending before August 9, 1988.
    (v) Example. The provisions of this paragraph (f)(3) are illustrated 
by the following example:

    Example. (i) Employer X maintains Plan Y, a calendar year profit-
sharing plan that includes a qualified cash or deferred arrangement. 
Under Plan Y, each eligible employee may elect to defer up to 10 percent 
of compensation under a salary reduction agreement. An eligible employee 
may also make employee contributions of up to 10 percent of 
compensation. X pays the amounts deferred to the trust on the last day 
of each month. Employer X includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). See 
Sec. 1.401(k)-1(g)(2)(i). Salaries are paid on the same date.
    (ii) (A) In January 1989, X determines that during 1988 the 
compensation and actual deferral ratios (ADRs) of X's six employees were 
as follows:

------------------------------------------------------------------------
                                                      Elective      ADR 
             Employee                Compensation   contribution  (%)(B/
                                          (A)            (B)        A)  
------------------------------------------------------------------------
A.................................         $70,000       $7,000    10.00
B.................................          60,000        4,500     7.50
C.................................          20,000        1,000     5.00
D.................................          15,000            0     0   
E.................................          10,000          350     3.50
F.................................          10,000          350     3.50
------------------------------------------------------------------------

     (B) The average deferral percentage (ADP) for X's highly 
compensated group, A and B, is 8.75 percent ((10.00%+7.50%)/2). The ADP 
for X's other employees is 3 percent ((5.00%+0% + 3.50% + 3.50%)/4). 
Because 8.75 percent is more than 2 times 3 percent and more than 3 
percent plus 2 percentage points, the plan fails to satisfy paragraph 
(b)(2) of this section. Neither A nor B made any employee contributions 
for the year.
    (iii) Plan Y provides that each highly compensated participant will 
have excess contributions, as defined in paragraph (g)(7) of this 
section, recharacterized. The amount to be recharacterized will be 
determined according to the method described in paragraph (f)(2) of this 
section.
    (iv) In order to satisfy paragraph (b)(2) of this section, Plan Y 
must reduce the ADP for X's highly compensated employees to not more 
than 5 percent. This will satisfy the test described in paragraph (b)(2) 
of this section, because 5 percent is not more than 2 times 3 percent 
and is not more than 2 percentage points greater than 3 percent. Plan Y 
first reduces A's ADR to 7.5 percent (the ADR of the highly compensated 
employee having the next highest ADR). Since this is not sufficient to 
satisfy the ADP test in paragraph (b)(2) of this section, the ADR of 
both A and B must be reduced to 5 percent.
    (v) The maximum dollar amount that may be deferred by each employee 
is determined by using the formula D=(ADR x S) where D is the maximum 
allowable deferral, ADR is the reduced ADR, and S is the compensation. 
Thus, A's maximum allowable deferral is $3,500 (.05 x $70,000), and B's 
maximum allowable deferral is $3,000 (.05 x $60,000). The balance of the 
original deferrals by A and B

[[Page 250]]

($3,500 and $1,500 respectively) must be included in their taxable wages 
for 2988, the year in which X would have paid cash to A and B.
    (vi) A deferred $583.33 per month, except for January, February, 
March, and April, when A deferred $583.34. Pursuant to the first-in, 
first-out rule in paragraph (f)(3)(ii) of this section, the deferrals 
made in January, February, March, April, and May, as well as $583.31 of 
the deferral made in June, are treated as employee contributions. A 
similar procedure is undertaken with respect to B. X and the plan 
administrator provide A and B with the forms and notices that the 
Commissioner requires. If A and B had already filed income tax returns 
for 1988, they must file amended returns. If Plan Y had a plan year 
ending November 30, 1987, and A and B had made elective deferrals in 
December 1987, they would also have to file amended returns for 1987. In 
addition, the plan administrator must satisfy paragraph (f)(3)(ii)(B) of 
this section. Of course, the actual contribution percentage test of 
section 401(m)(2) must be satisfied for 1988, taking the recharacterized 
amounts into account.

    (4) Corrective distribution of excess contributions (and income)--
(i) General rule. Excess contributions (and income allocable thereto) 
are distributed in accordance with this paragraph (f)(4) only if the 
excess contributions and allocable income are designated by the employer 
as a distribution of excess contributions (and income), and are 
distributed to the appropriate highly compensated employees after the 
close of the plan year in which the excess contributions arose and 
within 12 months after the close of that plan year. In the event of a 
complete termination of the plan during the plan year in which an excess 
contribution arose, the corrective distribution must be made as soon as 
administratively feasible after the date of termination of the plan, but 
in no event later than 12 months after the date of termination. If the 
entire account balance of a highly compensated employee is distributed 
during the plan year in which an excess contribution arose, the 
distribution is deemed to have been a corrective distribution of excess 
contributions (and income) to the extent that a corrective distribution 
would otherwise have been required.
    (ii) Income allocable to excess contributions--(A) General rule. The 
income allocable to excess contributions is equal to the sum of the 
allocable gain or loss for the plan year and, if the plan so provides, 
the allocable gain or loss for the period between the end of the plan 
year and the date of distribution (the ``gap period'').
    (B) Method of allocating income. A plan may use any reasonable 
method for computing the income allocable to excess contributions, 
provided that the method does not violate section 401(a)(4), is used 
consistently for all participants and for all corrective distributions 
under the plan for the plan year, and is used by the plan for allocating 
income to participants' accounts. See Sec. 1.401(a)(4)-1(c)(8).
    (C) Alternative method of allocating income. A plan may allocate 
income to excess contributions by multiplying the income for the plan 
year (and the gap period, if the plan so provides) allocable to elective 
contributions and amounts treated as elective contributions by a 
fraction. The numerator of the fraction is the excess contributions for 
the employee for the plan year. The denominator of the fraction is equal 
to the sum of:
    (1) The total account balance of the employee attributable to 
elective contributions and amounts treated as elective contributions as 
of the beginning of the plan year; plus
    (2) The employee's elective contributions and amounts treated as 
elective contributions for the plan year and for the gap period if gap 
period income is allocated.
    (D) Safe harbor method of allocating gap period income. Under the 
safe harbor method, income on excess contributions for the gap period is 
equal to 10 percent of the income allocable to excess contributions for 
the plan year (calculated under the method described in paragraph 
(f)(4)(ii)(C)) of this section, multiplied by the number of calendar 
months that have elapsed since the end of the plan year. For purposes of 
calculating the number of calendar months that have elapsed under the 
safe harbor method, a corrective distribution that is made on or before 
the fifteenth day of the month is treated as made on the last day of the 
preceding month. A distribution made after the fifteenth day of the 
month is treated as made on the first day of the next month.

[[Page 251]]

    (iii) No employee or spousal consent required. A corrective 
distribution of excess contributions (and income) may be made under the 
terms of the plan without regard to any notice or consent otherwise 
required under sections 411(a)(11) and 417.
    (iv) Treatment of corrective distributions as employer 
contributions. Excess contributions are treated as employer 
contributions for purposes of sections 404 and 415 even if distributed 
from the plan.
    (v) Tax treatment of corrective distributions--(A) General rule. 
Except as provided in paragraph (f)(4)(v) (B) or (C) of this section, a 
corrective distribution of excess contributions (and income) that is 
made within 2\1/2\ months after the end of the plan year for which the 
excess contributions were made is includible in the employee's gross 
income on the earliest dates any elective contributions by the employee 
during the plan year would have been received by the employee had the 
employee originally elected to receive the amounts in cash. A corrective 
distribution of excess contributions (and income) that is made more than 
2\1/2\ months after the end of the plan year for which the contributions 
were made is includible in the employee's gross income in the employee's 
taxable year in which distributed. Regardless of when the corrective 
distribution is made, it is not subject to the early distribution tax of 
section 72(t) and is not treated as a distribution for purposes of 
applying the excise tax under section 4980A. See paragraph (f)(5)(i)(B) 
of this section for rules relating to the taxation of excess 
contributions that reduce excess deferrals. See paragraph (f)(6)(i) of 
this section for additional rules relating to the employer excise tax on 
amounts distributed more than 2\1/2\ months after the end of the plan 
year.
    (B) Rule for de minimis distributions. If the total amount of excess 
contributions and excess aggregate contributions distributed to a 
recipient under a plan for any plan year is less than $100 (excluding 
income), a corrective distribution of excess contributions (and income) 
is includible in the gross income of the recipient in the taxable year 
of the recipient in which the corrective distribution is made.
    (C) Rule for certain 1987 and 1988 excess contributions. 
Distributions for plan years beginning in 1987 and 1988 to which the de 
minimis rule of this section would otherwise apply may be reported by 
the recipient, at the recipient's option, either in the year described 
in paragraph (f)(4)(v)(A) of this section, or in the year described in 
paragraph (f)(4)(v)(B) of this section. This special rule may be used 
only for distributions made within 2\1/2\ months after the close of the 
plan year, but in no event later than April 17, 1989.
    (vi) No reduction of required minimum distribution. A distribution 
of excess contributions (and income) is not treated as a distribution 
for purposes of determining whether the plan satisfies the minimum 
distribution requirements of section 401(a)(9).
    (5) Rules applicable to all corrections--(i) Coordination with 
distribution of excess deferrals--(A) In general. The amount of excess 
contributions to be recharacterized under paragraph (f)(3) of this 
section or distributed under paragraph (f)(4) of this section with 
respect to an employee for a plan year, is reduced by any excess 
deferrals previously distributed to the employee for the employee's 
taxable year ending with or within the plan year in accordance with 
section 402(g)(2).
    (B) Treatment of excess contributions that reduce excess deferrals. 
Under Sec. 1.402(g)-1(e), the amount of excess deferrals that may be 
distributed with respect to an employee for a taxable year is reduced by 
any excess contributions previously distributed or recharacterized with 
respect to the employee for the plan year beginning with or within the 
taxable year. The amount of excess contributions includible in the gross 
income of the employee, and the amount of excess contributions reported 
by the payor or plan administrator as includible in the gross income of 
the employee, does not include the amount of any reduction under 
Sec. 1.402(g)-1(e)(6).
    (ii) Correction of family members. The determination and correction 
of excess contributions of a highly compensated employee whose actual 
deferral ratio is determined under the family aggregation rules of 
paragraph (g)(1)(ii)(C) of

[[Page 252]]

this section is accomplished by reducing the actual deferral ratio as 
required under paragraph (f)(2) of this section and allocating the 
excess contributions for the family group among the family members in 
proportion to the elective contribution of each family member that is 
combined to determine the actual deferral ratio.
    (iii) Matching contributions forfeited because of excess deferral or 
contribution. For purposes of section 401(k)(2)(C) and paragraph (c)(1) 
of this section, a qualified matching contribution is not treated as 
forfeitable merely because under the plan it is forfeited if the 
contribution to which it relates is treated as an excess contribution, 
excess deferral, or excess aggregate contribution.
    (6) Failure to correct--(i) Failure to correct within 2\1/2\ months 
after end of plan year. If a plan does not correct excess contributions 
within 2\1/2\ months after the close of the plan year for which the 
excess contributions are made, the employer will be liable for a 10-
percent excise tax on the amount of the excess contributions. See 
section 4979 and Sec. 54.4979-1. Qualified nonelective contributions and 
qualified matching contributions properly taken into account under 
paragraph (b)(5) of this section for a plan year may enable a plan to 
avoid having excess contributions, even if the contributions are made 
after the close of the 2\1/2\ month period.
    (ii) Failure to correct within 12 months after end of plan year. If 
excess contributions are not corrected within 12 months after close of 
the plan year for which they were made, the cash or deferred arrangement 
will fail to satisfy the requirements of section 401(k)(3) for the plan 
year for which the excess contributions are made and all subsequent plan 
years during which the excess contributions remain in the trust.
    (7) Examples. The provisions of this paragraph (f) are illustrated 
by the following examples:

    Example 1. (i) The Y corporation maintains a cash or deferred 
arrangement. The plan year is the calendar year. For plan year 1989, all 
10 of Y's employees are eligible to participate in the cash or deferred 
arrangement. The Y corporation includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). See 
Sec. 1.401(k)-1(g)(2)(i). The employees' compensation, elective 
contributions, and actual deferral ratios are shown in the following 
table:

------------------------------------------------------------------------
                                                                Actual  
                                                 Elective      deferral 
           Employee             Compensation  contributions  ratio (ADR)
                                                              (percent) 
------------------------------------------------------------------------
A.............................      $160,000        $6,400           4.0
B.............................       140,000         7,000           5.0
C.............................        70,000         7,000          10.0
D.............................        65,000         6,500          10.0
E.............................        42,000         2,100           5.0
F.............................        35,000         3,500          10.0
G.............................        28,000         2,800          10.0
H.............................        21,000           700          3.33
I.............................        21,000             0             0
J.............................        21,000             0             0
------------------------------------------------------------------------

    (ii) Employees A, B, C, and D are highly compensated employees. 
Employees E, F, G, H, I, and J are nonhighly compensated employees. The 
actual deferral percentage (ADP) for the highly compensated group is 
7.25 percent. The ADP for the nonhighly compensated group is 4.72 
percent. These percentages do not meet the requirements of section 
401(k)(3)(A)(ii).
    (iii) Employees A and C have each received a distribution of excess 
deferrals of $1,000. However, the ADR for employee A remains 4.0 percent 
and the actual deferral ratio for Employee C remains 10.0 percent. The 
ADP for the group of highly compensated employees remains 7.25 percent.
    (iv) The ADP for the highly compensated group must be reduced to 
6.72 percent. This is done by reducing the ADR of the highly compensated 
employees with the highest ADR (Employees C and D) to 8.94 percent. This 
makes Employee C's maximum elective contribution $6,258. This requires a 
distribution or recharacterization of $742. But since $1,000 has already 
been distributed as an excess deferral, no additional distribution or 
recharacterization is required or permitted. Employee D's elective 
contribution must be reduced by $689 ($6,500--.0894 ($65,000)) to $5,811 
through distribution or recharacterization.
    Example 2. A, B, and C are highly compensated employees of Employer 
R. Employer R maintains a cash or deferred arrangement. Employer R 
includes elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). For the plan year 1990, A, B, and C each earns 
compensation of $100,000 and contributes $7,000 to the plan during the 
period January through June. B retires in November of 1990 and makes a 
withdrawal of B's entire account balance of $200,000. In January of 
1991, R computes the ADP test for its employees and learns that the 
highly compensated employees should have contributed only five percent 
of compensation. Since B made a contribution of $7,000 for 1990, B's 
contribution and compensation are used in determining the ADP despite 
the subsequent $200,000 withdrawal.

[[Page 253]]

A, B, and C must each receive a corrective distribution of $2,000 in 
order to meet the ADP test. Since B has already withdrawn B's total 
account balance under the plan, only A and C must receive a distribution 
of $2,000 each in order for the plan to meet the ADP test of section 
401(k)(3)(A)(ii). Pursuant to the 1990 Form 1099-R Instructions, the 
plan must issue two Forms 1099-R to B, one reporting the portion of the 
distribution that was necessary to correct the excess contribution 
(including income), and one reporting the balance of the distribution. 
If B had withdrawn less than the total account balance, B would have to 
withdraw the lesser of $2,000 or the remaining account balance.
    Example 3. Individual A has a child, B. Both participate in a cash 
or deferred arrangement maintained by Employer X. A is one of the 10 
most highly compensated employees and B is a nonhighly compensated 
employee. Employer X includes elective contributions in compensation as 
permitted under Sec. 1.414(s)-1(c)(4)(i). A has compensation of $100,000 
and defers $7,000 under the cash or deferred arrangement; B has 
compensation of $40,000 and defers $4,000 under the arrangement. The 
actual deferral ratio of the family unit is 7.86 percent, calculated by 
aggregating the contributions and compensation of A and B ($7,000 + 
$4,000)/($100,000 + $40,000). For the plan, it is determined that under 
Sec. 1.401(k)-1(f)(2), the actual deferral ratio of the aggregate family 
unit must be reduced to 7.20 percent. This reduction is applied in 
proportion to A's and B's contributions. The excess contributions are 
$920 ($11,000 total contributions minus $10,080 (7.20% x $140,000)). A's 
share of the excess contributions is $585.45 ($7,000/$11,000 x $920); 
B's share is $334.55 ($4,000/$11,000 x $920).
    Example 4. (i) Employer T maintains a profit-sharing plan containing 
a cash or deferred arrangement for all employees. Six employees are 
covered by a collective bargaining agreement, the other seven employees 
are not. The employee data for 1994 is shown in the following table:

------------------------------------------------------------------------
                                                                Actual  
                                                               deferral 
         Employee              Collective bargaining unit       ratio   
                                         status                 (ADR),  
                                                              (percent) 
------------------------------------------------------------------------
A                           Member.........................          8.0
B                           Member.........................          6.0
C                           Nonmember......................          9.0
D                           Nonmember......................          7.0
E-H                         Members........................          4.5
I-M                         Nonmembers.....................         6.0 
------------------------------------------------------------------------
Employees A, B, C, and D are highly compensated.                        

    (ii) For purposes of sections 410(b), 401(a)(4) and 401(k), the 
portion of T's plan covering collectively bargained unit members must be 
disaggregated from the portion covering other employees.

------------------------------------------------------------------------
                                                                  ADR   
                          Employee                             (percent)
------------------------------------------------------------------------
Collective Bargaining Unit Members:                                     
    A.......................................................         8.0
    B.......................................................         6.0
    E-H.....................................................     \1\ 4.5
Other Employees:                                                        
    C.......................................................         9.0
    D.......................................................         7.0
    I-M.....................................................     \1\ 6.0
------------------------------------------------------------------------
\1\ Average.                                                            

    (iii) The ADPs for the collectively bargained highly compensated 
group and nonhighly compensated group, respectively, are seven percent 
and 4.5 percent. The ADPs for the other highly compensated and nonhighly 
compensated employees, respectively, are eight percent and six percent.
    (iv) The non-collectively bargained portion of the disaggregated 
plan satisfies the ADP test for the 1994 plan year, but the collectively 
bargained portion does not. Employer T is not required to make 
corrections to the collectively bargained portion of the cash or 
deferred arrangement, because a collectively bargained plan 
automatically satisfies the nondiscrimination requirements of 401(a)(4). 
However, unless Employer T corrects the ADP test failure in the 
collectively bargained portion of the plan, either by reducing A's ADR 
to seven percent or adding QNCs for the nonhighly compensated employees, 
all elective contributions made by collectively bargained employees for 
the year will be includible in income in l994.

    (g) Definitions. The following definitions apply for purposes of 
this section, unless the context clearly indicates otherwise:
    (1) Actual deferral percentage--(i) General rule. The actual 
deferral percentage for a group of employees for a plan year is the 
average of the actual deferral ratios of employees in the group for that 
plan year. For plan years that begin after December 31, l988, or such 
later date provided in paragraph (h) of this section, actual deferral 
ratios and the actual deferral percentage for a group are calculated to 
the nearest hundredth of a percentage point.
    (ii) Actual deferral ratio--(A) General rule. An employee's actual 
deferral ratio for the plan year is the sum of the employee's elective 
contributions and amounts treated as elective contributions for the plan 
year, divided by the employee's compensation taken into account for the 
plan year. If an eligible employee makes no elective contributions, and 
no qualified matching contributions or qualified nonelective

[[Page 254]]

contributions are taken into account with respect to the employee, the 
actual deferral ratio of the employee is zero. See paragraphs (b)(4), 
(b)(5), and (g)(2) of this section for rules regarding the elective 
contributions, qualified nonelective contributions, and compensation 
taken into account in calculating this fraction.
    (B) Employee eligible under more than one arrangement--(1) Highly 
compensated employees. For plan years beginning after December 31, 1984, 
the actual deferral ratio of a highly compensated employee who is 
eligible to participate in more than one cash or deferred arrangement of 
the same employer is generally calculated by treating all the cash or 
deferred arrangements in which the employee is eligible to participate 
as one arrangement. However, plans that are not permitted to be 
aggregated under Sec. 1.410(b)-7(c), as modified in paragraph (g)(11) of 
this section, are not aggregated for this purpose. For example, if a 
highly compensated employee with compensation of $80,000 could make 
elective contributions under two separate cash or deferred arrangements, 
the actual deferral ratio for the employee under each arrangement would 
generally be calculated by dividing the total elective contributions by 
the employee under both arrangements by $80,000. If one of the cash or 
deferred arrangements were part of an ESOP, however, while the other was 
not, the actual deferral percentage of the employee under each 
arrangement would be calculated by dividing the employee's elective 
contributions under each arrangement by $80,000 because the ESOP portion 
is mandatorily disaggregated from the non-ESOP portion.
    (2) Nonhighly compensated employees. For plan years beginning after 
December 31, 1984, and before January 1, 1987 (or such later date 
provided under paragraph (h) of this section), this paragraph 
(g)(1)(ii)(B) applies to all employees, and not only to highly 
compensated employees.
    (3) Treatment of plans with different plan years. If the cash or 
deferred arrangements that are treated as a single arrangement under 
this paragraph (g)(1)(ii)(B) are parts of plans that have different plan 
years, the cash or deferred arrangements are treated as a single 
arrangement with respect to the plan years ending with or within the 
same calendar year.
    (C) Employees subject to family aggregation rules--(1) Aggregation 
of elective contributions and other amounts. For plan years beginning 
after December 31, 1986, or any later date provided in paragraph (h) of 
this section, if a highly compensated employee is subject to the family 
aggregation rules of section 414(q)(6) because that employee is either a 
five-percent owner or one of the 10 most highly compensated employees, 
the combined actual deferral ratio for the family group (which is 
treated as one highly compensated employee) must be determined by 
combining the elective contributions, compensation, and amounts treated 
as elective contributions of all family members.
    (2) Effect on actual deferral percentage of nonhighly compensated 
employees. The elective contributions, compensation, and amounts treated 
as elective contributions of all family members are disregarded for 
purposes of determining the actual deferral percentage for the group of 
nonhighly compensated employees.
    (3) Multiple family groups. If an employee is required to be 
aggregated as a member of more than one family group in a plan, all 
eligible employees who are members of those family groups that include 
that employee are aggregated as one family group.
    (2) Compensation--(i) Years beginning after December 31, 1986. For 
plan years beginning after December 31, 1986, or such later date 
provided in paragraph (h) of this section, the term compensation means 
compensation as defined in section 414(s) and Sec. 1.414(s)-1. The 
period used to determine an employee's compensation for a plan year must 
be either the plan year or the calendar year ending within the plan 
year. Whichever period is selected must be applied uniformly to 
determine the compensation of every eligible employee under the plan for 
that plan year for purposes of this section. An employer may, however, 
limit the period taken into account under either method to that portion 
of the plan year or calendar year in which the employee was an eligible 
employee, provided that

[[Page 255]]

this limit is applied uniformly to all eligible employees under the plan 
for the plan year for purposes of this section. See also section 
401(a)(17) and Sec. 1.401(a)(17)-1(c)(1).
    (ii) Years beginning before January 1, 1987--(A) General rule. An 
employee's compensation for a plan year beginning before January 1, 
1987, or such later date provided under paragraph (h) of this section, 
is the amount taken into account under the plan (or plans) in 
calculating the elective contribution that may be made on behalf of the 
employee. In a plan that is top-heavy (as defined in section 416), 
compensation may not exceed $200,000. Compensation may not exclude 
amounts less than a stated amount, such as the integration level under 
the plan. Compensation may include all compensation for the plan year, 
including compensation for the period when an employee was ineligible to 
make a cash or deferred election.
    (B) Nondiscrimination requirement--(1) If the plan's definition of 
compensation has the effect of discriminating in favor of employees who 
are highly compensated, a nondiscriminatory definition shall be 
determined by the Commissioner.
    (2) A plan's definition of compensation is treated as 
nondiscriminatory if the plan defines compensation for a plan year 
either as--
    (i) an employee's total nondeferred compensation includible in gross 
income plus elective contributions under the plan and elective 
contributions under a plan described in section 125, and/or
    (ii) an employee's W-2 or total nondeferred compensation includible 
in gross income.
    (3) Elective contributions. The term ``elective contribution'' means 
employer contributions made to a plan that were subject to a cash or 
deferred election under a cash or deferred arrangement (whether or not 
the arrangement is a qualified cash or deferred arrangement under 
paragraph (a)(4) of this section). No amount that has become currently 
available to an employee or that is designated or treated, at the time 
of deferral or contribution, as an after-tax employee contribution may 
be treated as an elective contribution. See paragraphs (a)(2) and (a)(3) 
of this section. See also paragraph (a)(6)(iii) of this section for 
rules relating to the treatment as elective contributions of certain 
matching contributions made by partnerships.
    (4) Eligible employee--(i) General rule. The term ``eligible 
employee'' means an employee who is directly or indirectly eligible to 
make a cash or deferred election under the plan for all or a portion of 
the plan year. For example, if an employee must perform purely 
ministerial or mechanical acts (e.g., formal application for 
participation or consent to payroll withholding) in order to be eligible 
to make a cash or deferred election for a plan year, the employee is an 
eligible employee for the plan year without regard to whether the 
employee performs the acts. An employee who is unable to make a cash or 
deferred election because the employee has not contributed to another 
plan is also an eligible employee. By contrast, if an employee must 
perform additional service (e.g., satisfy a minimum period of service 
requirement) in order to be eligible to make a cash or deferred election 
for a plan year, the employee is not an eligible employee for the plan 
year unless the service is actually performed. See paragraph (e)(5) of 
this section, however, for certain limits on the use of minimum service 
requirements. An employee who would be eligible to make elective 
contributions but for a suspension due to a distribution, a loan, or an 
election not to participate in the plan, is treated as an eligible 
employee for purposes of section 401(k)(3) for a plan year even though 
the employee may not make a cash or deferred election by reason of the 
suspension. Finally, an employee does not fail to be treated as an 
eligible employee merely because the employee may receive no additional 
annual additions because of section 415(c)(1) or 415(e).
    (ii) Certain one-time elections. An employee is not an eligible 
employee merely because the employee, upon commencing employment with 
the employer or upon the employee's first becoming eligible to make a 
cash or deferred election under any arrangement of the employer, is 
given the one-time opportunity to elect, and the employee

[[Page 256]]

does in fact elect, not to be eligible to make a cash or deferred 
election under the plan or any other plan maintained by the employer 
(including plans not yet established) for the duration of the employee's 
employment with the employer. This rule applies in addition to the rules 
in paragraphs (a)(3)(iv) and (a)(6)(ii)(C) of this section relating to 
the definition of a cash or deferred election. In no event is an 
election made after December 23, 1994 treated as a one-time irrevocable 
election under this paragraph if the election is made by an employee who 
previously became eligible under another plan (whether or not 
terminated) of the employer.
    (5) Employee. The term employee means an employee within the meaning 
of Sec. 1.410(b)-9.
    (6) Employer. The term employer means the employer within the 
meaning of Sec. 1.410(b)-9.
    (7) Excess contributions and excess deferrals--(i) Excess 
contributions. The term ``excess contribution'' means, with respect to a 
plan year, the excess of the elective contributions, including qualified 
nonelective contributions and qualified matching contributions that are 
treated as elective contributions under paragraph (b)(2) of this 
section, on behalf of eligible highly compensated employees for the plan 
year over the maximum amount of the contributions permitted under 
paragraph (b)(2) of this section. The amount of excess contributions for 
each highly compensated employee is determined by using the method 
described in paragraph (f)(2) of this section.
    (ii) Excess deferrals. The term ``excess deferrals'' means excess 
deferrals as defined in Sec. 1.402(g)-1(e)(3).
    (8) Highly compensated employees--(i) Plan years beginning after 
December 31, 1986. For plan years beginning after December 31, 1986, or 
such later date provided under paragraph (h) of this section, the term 
``highly compensated employee'' has the meaning provided in section 
414(q).
    (ii) Plan years beginning after December 31, 1979, and before 
January 1, 1987. For plan years beginning after December 31, 1979, and 
before January 1, 1987, or such later date provided under paragraph (h) 
of this section, for purposes of the actual deferral percentage test, 
highly compensated employees are the one-third of all eligible employees 
(rounded to the nearest integer) who receive the most compensation. When 
one or more employees of a group would be highly compensated employees 
except that each member of the group receives the same amount of 
compensation, the employer must designate which employees of the group 
are highly compensated, so that one-third of all eligible employees are 
considered highly compensated.
    (9) Matching contributions. The term ``matching contribution'' means 
matching contributions as defined in Sec. 1.401(m)-1(f)(12).
    (10) Nonelective contributions. The term ``nonelective 
contribution'' means employer contributions (other than matching 
contributions) with respect to which the employee may not elect to have 
the contributions paid to the employee in cash or other benefits instead 
of being contributed to the plan.
    (11) Plan--(i) Application of section 410(b) rules. The term plan 
means a plan within the meaning of Sec. 1.410(b)-7 (a) and (b), after 
application of the mandatory disaggregation rules of Sec. 1.410(b)-7(c) 
and the permissive aggregation rules of Sec. 1.410(b)-7(d), with the 
modifications provided in paragraph (g)(11)(ii) of this section. Thus, 
for example, two plans (within the meaning of Sec. 1.410(b)-7(b)) that 
are treated as a single plan pursuant to the permissive aggregation 
rules of Sec. 1.410(b)-7(d) are treated as a single plan for purposes of 
section 401(k). See also Sec. 1.401(k)-1(b)(3)(ii).
    (ii) Modifications to section 410(b) rules--(A) In general. For 
purposes of this paragraph (g)(11), Sec. 1.410(b)-7 (c) and (d) are 
applied without regard to Sec. 1.410(b)-7(c)(1), relating to section 
401(k) and 401(m) plans.
    (B) Plans benefiting collective bargaining unit employees. A plan 
that benefits employees who are included in a unit of employees covered 
by a collective bargaining agreement and employees who are not included 
in such a collective bargaining unit is treated as comprising separate 
plans. This paragraph (g)(11)(ii)(B) is generally applied separately 
with respect to each collective bargaining unit. At the option of the

[[Page 257]]

employer, however, two or more separate collective bargaining units can 
be treated as a single collective bargaining unit, provided that the 
combinations of units are determined on a basis that is reasonable and 
reasonably consistent from year to year. Thus, for example, if a plan 
benefits employees in three categories--employees included in collective 
bargaining unit A, employees included in collective bargaining unit B, 
and employees who are not included in any collective bargaining unit--
the plan can be treated as comprising three separate plans, each of 
which benefits only one category of employees. However, if collective 
bargaining units A and B are treated as a single collective bargaining 
unit, the plan will be treated as comprising only two separate plans, 
one benefiting all employees who are included in a collective bargaining 
unit and another benefiting all other employees. Similarly, if a plan 
benefits only employees who are included in collective bargaining unit A 
and employees who are included in collective bargaining unit B, the plan 
can be treated as comprising two separate plans. However, if collective 
bargaining units A and B are treated as a single collective bargaining 
unit, the plan will be treated as a single plan. An employee is treated 
as included in a unit of employees covered by a collective bargaining 
agreement if and only if the employee is a collectively bargained 
employee within the meaning of Sec. 1.410(b)-6(d)(2).
    (C) Multiemployer plans. Consistent with section 413(b), the portion 
of the plan that is maintained pursuant to a collective bargaining 
agreement (within the meaning of Sec. 1.413-1(a)(2)) is treated as a 
single plan maintained by a single employer that employs all the 
employees benefiting under the same benefit computation formula and 
covered pursuant to that collective bargaining agreement. The rules of 
paragraph (g)(11)(ii)(B) of this section (including the optional 
aggregation of collective bargaining units) apply to the resulting 
deemed single plan in the same manner as they would to a single employer 
plan, except that the plan administrator is substituted for the employer 
where appropriate and appropriate fiduciary obligations are taken into 
account. The noncollectively bargained portion of the plan is treated as 
maintained by one or more employers, depending on whether the 
noncollective bargaining unit employees who benefit under the plan are 
employed by one or more employers.
    (12) Pre-ERISA money purchase pension plan--(i) A pre-ERISA money 
purchase pension plan is a pension plan:
    (A) That is a defined contribution plan (as defined in section 
414(i));
    (B) That was in existence on June 27, 1974, and as in effect on that 
date, included a salary reduction agreement described in paragraph 
(a)(3)(i) of this section; and
    (C) Under which neither the employee contributions nor the employer 
contributions, including elective contributions, may exceed the levels 
(as a percentage of compensation) provided for by the contribution 
formula in effect on June 27, 1974.
    (ii) A plan was in existence on June 27, 1974, if it was a written 
plan adopted on or before that date, even if no funds had yet been paid 
to the trust associated with the plan.
    (13) Qualified matching contributions and qualified nonelective 
contributions--(i) Qualified matching contributions. The term 
``qualified matching contribution'' means matching contributions that 
satisfy the additional requirements of paragraph (g)(13)(iii) of this 
section.
    (ii) Qualified nonelective contributions. The term ``qualified 
nonelective contribution'' means employer contributions, other than 
elective contributions and matching contributions, that satisfy the 
additional requirements of paragraph (g)(13)(iii) of this section.
    (iii) Additional requirements. Except to the extent that paragraphs 
(c) and (d) of this section specifically provide otherwise, the matching 
contributions and the nonelective contributions must satisfy the 
requirements of paragraphs (c) and (d) of this section as though the 
contributions were elective contributions, without regard to whether the 
contributions are actually taken into account as elective contributions 
under paragraph (b)(2) of this section. Thus,

[[Page 258]]

the matching and nonelective contributions must satisfy the vesting 
requirements of paragraph (c) of this section and be subject to the 
distribution requirements of paragraph (d) of this section when they are 
contributed to the plan. See Sec. 1.401(k)-1(f)(5)(iii) for rules 
regarding matching contributions not treated as forfeitable under 
section 411(a)(3)(G) because of excess deferrals or contributions.
    (14) Rural cooperative plan. For purposes of this section, a rural 
cooperative plan is a plan described in section 401(k)(7).
    (15) Section 401(k) plan. The term section 401(k) plan means a 
section 401(k) plan within the meaning of Sec. 1.410(b)-9.
    (16) Section 401(m) plan. The term section 401(m) plan means a 
section 401(m) plan within the meaning of Sec. 1.401(b)-9.
    (h) Effective dates--(1) General rule. Except as otherwise provided 
in this paragraph (h) or as specifically provided elsewhere in this 
section, this section applies to plan years beginning after December 31, 
1979.
    (2) Collectively bargained plans. In the case of a plan maintained 
pursuant to one or more collective bargaining agreements between 
employee representatives and one or more employers ratified before March 
1, 1986:
    (i) The provisions of this section first effective for plan years 
beginning after December 31, 1986, do not apply to years that begin 
before the earlier of January 1, 1989, or the date on which the last of 
the collective bargaining agreements terminates (determined without 
regard to any extension thereof after February 28, 1986).
    (ii) The provisions of this section first effective for plan years 
beginning after December 31, 1988, do not apply to years beginning 
before the earlier of:
    (A) The later of January 1, 1989, or the date on which the last of 
the collective bargaining agreements terminates (determined without 
regard to any extension thereof after February 28, 1986); or
    (B) January 1, 1991.
    (3) Transition rules--(i) Cash or deferred arrangements in existence 
on June 27, 1974. See Sec. 1.402(a)-1(d)(3)(ii) for a transition rule 
applicable to cash or deferred arrangements in existence on June 27, 
1974.
    (ii) Plan years beginning after December 31, 1979, and before 
January 1, 1992. For plan years beginning after December 31, 1979 (or, 
in the case of a pre-ERISA money purchase plan, plan years beginning 
after July 18, 1984) and before January 1, 1992, a reasonable 
interpretation of the rules set forth in section 401 (k) and (m) of the 
Internal Revenue Code (as in effect during those years) may be relied 
upon to determine whether a cash or deferred arrangement was qualified 
during those years.
    (iii) Restructuring--(A) General rule. In determining whether the 
requirements of section 401(k) are satisfied for plan years beginning 
before January 1, 1992, a plan may be treated as consisting of two or 
more component plans, each consisting of all of the allocations and 
other benefits, rights, and features provided to a group of employees 
under the plan. See Sec. 1.401(a)(4)-9(c). An employee may not be 
included in more than one component plan of the same plan for a plan 
year under this method. If this method is used for a plan year, the 
requirements of section 401(k) are applied separately with respect to 
each component plan for the plan year. Thus, for example, the actual 
deferral ratio and the amount of excess contributions, if any, of each 
eligible employee under each component plan must be determined as if the 
component plan were a separate plan. This method applies solely for 
purposes of section 401(k). Thus, for example, the requirements of 
section 410(b) must still be satisfied by the entire plan.
    (B) Identification of component plans--(1) Minimum coverage 
requirement. The group of eligible employees described in Sec. 1.401(k)-
1(g)(4) under each component plan must separately satisfy the 
requirements of section 410(b) as if the component plan were a separate 
plan. Component plans may not be aggregated to satisfy this requirement.
    (2) Commonality requirement. The group of employees used to identify 
a component plan must share some common attribute or attributes, other 
than similar actual deferral ratios. Permissible common attributes 
include, for example, employment at the same work site, in the same job 
category, for the same division or subsidiary, or for a unit acquired in 
a specific merger or

[[Page 259]]

acquisition, employment for the same number of years, compensation under 
the same method, e.g., salaried or hourly, coverage under the same 
contribution formula, and attributes that could be used as the basis of 
a classification that would be treated as reasonable under 
Sec. 1.410(b)-4(b). Employees whose only common attribute is the same or 
similar actual deferral ratios, or another attribute having 
substantially the same effect as the same or similar actual deferral 
ratios, are not considered as sharing a common attribute for this 
purpose. This rule applies regardless of whether the component plan or 
the plan of which it is a part satisfies the ratio or percentage test of 
section 410(b).
    (4) State and local government plans--(i) Plans adopted before May 
6, 1986. A plan adopted by a state or local government prior to May 6, 
1986, is subject to the transitional rules of paragraph (h)(4) (ii) or 
(iii) of this section.
    (ii) Plan years beginning before January 1, 1996. (A) The plan does 
not fail to satisfy the requirements of section 401(a) merely because of 
the nonqualified cash or deferred arrangement.
    (B) Employer contributions under the nonqualified cash or deferred 
arrangement are considered to satisfy the requirements of section 
401(a)(4).
    (C) Except as provided in paragraphs (a)(7) and (f) of this section, 
elective contributions under the arrangement are treated as employer 
contributions under the Internal Revenue Code of 1986, as if the 
arrangement were a qualified cash or deferred arrangement. See 
Sec. 1.401(k)-1(a)(4)(ii). See Sec. 1.402(a)-1(d) for rules governing 
when elective contributions under the arrangement are includible in an 
employee's gross income.
    (iii) Collectively bargained plans. The transition rules in 
paragraph (h)(4)(ii) of this section apply to a plan maintained pursuant 
to one or more collective bargaining agreements between employee 
representatives and one or more employers and adopted by a state or 
local government before May 6, 1986, effective on the date the 
provisions of section 401(k) and this section would be effective under 
paragraph (h)(2) of this section.

[T.D. 8357, 56 FR 40517, Aug. 15, 1991, as amended by T.D. 8376, 56 FR 
63432, Dec. 4, 1991; T.D. 8357, 57 FR 10289, 10290, Mar. 25, 1992; 58 FR 
14151, Mar. 16, 1993; T.D. 8581, 59 FR 66169, Dec. 23, 1994; T.D. 8581, 
60 FR 12416, Mar. 7, 1995; T.D. 8581, 60 FR 15874, Mar. 28, 1995; T.D. 
8581, 60 FR 25140, May 11, 1995]



Sec. 1.401(l)-0  Table of contents.

    This section contains a listing of the headings of Secs. 1.401(l)-1 
through 1.401(l)-6.

 Sec. 1.401(l)-1  Permitted disparity with respect to employer-provided 
                       contributions or benefits.

    (a) Permitted disparity.
    (1) In general.
    (2) Overview.
    (3) Exclusive rules.
    (4) Exceptions.
    (5) Additional rules.
    (b) Relationship to other requirements.
    (c) Definitions.
    (1) Accumulation plan.
    (2) Average annual compensation.
    (3) Base benefit percentage.
    (4) Base contribution percentage.
    (5) Benefit formula.
    (6) Benefit, right, or feature.
    (7) Covered compensation.
    (i) In general.
    (ii) Special rules.
    (A) Rounded table.
    (B) Proposed regulation definition.
    (iii) Period for using covered compensation amount.
    (8) Defined benefit plan.
    (9) Defined contribution plan.
    (10) Disparity.
    (11) Employee.
    (12) Employer.
    (13) Employer contributions.
    (14) Excess benefit percentage.
    (15) Excess contribution percentage.
    (16) Excess plan.
    (i) Defined benefit excess plan.
    (ii) Defined contribution excess plan.
    (17) Final average compensation.
    (i) In general.
    (ii) Limitations.
    (iii) Determination of section 414(s) compensation.
    (18) Gross benefit percentage.
    (19) Highly compensated employee.
    (20) Integration level.
    (21) Nonexcludable employee.
    (22) Nonhighly compensated employee.
    (23) Offset level.
    (24) Offset percentage.
    (25) Offset plan.
    (26) PIA.
    (27) Plan.
    (28) Plan year compensation.

[[Page 260]]

    (29) Qualified plan.
    (30) Section 401(l) plan.
    (31) Section 414(s) compensation.
    (32) Social security retirement age.
    (33) Straight life annuity.
    (34) Taxable wage base.
    (35) Year of service.

  Sec. 1.401(l)-2  Permitted disparity for defined contribution plans.

    (a) Requirements.
    (1) In general.
    (2) Excess plan requirement.
    (3) Maximum disparity.
    (4) Uniform disparity.
    (5) Integration level.
    (b) Maximum permitted disparity.
    (1) In general.
    (2) Maximum excess allowance.
    (c) Uniform disparity.
    (1) In general.
    (2) Deemed uniformity.
    (i) In general.
    (ii) Overall permitted disparity.
    (iii) Non-FICA employees.
    (d) Integration level.
    (1) In general.
    (2) Taxable wage base.
    (3) Single dollar amount.
    (4) Intermediate amount.
    (5) Prorated integration level for short plan year.
    (e) Examples.

     Sec. 1.401(l)-3  Permitted disparity for defined benefit plans.

    (a) Requirements.
    (1) In general.
    (2) Excess or offset plan requirement.
    (3) Maximum disparity.
    (4) Uniform disparity.
    (5) Integration or offset level.
    (6) Benefits, rights, and features.
    (b) Maximum permitted disparity.
    (1) In general.
    (2) Maximum excess allowance.
    (3) Maximum offset allowance.
    (4) Rules of application.
    (i) Disparity provided for the plan year.
    (ii) Reductions in disparity rate.
    (iii) Normal and optional forms of benefit.
    (A) In general.
    (B) Level annuity forms.
    (C) Other forms.
    (D) Post-retirement cost-of-living adjustments.
    (1) In general.
    (2) Requirements.
    (E) Section 417(e) exception.
    (5) Examples.
    (c) Uniform disparity.
    (1) In general.
    (2) Deemed uniformity.
    (i) In general.
    (ii) Use of fractional accrual and disparity for 35 years.
    (iii) Use of fractional accrual and disparity for fewer than 35 
years.
    (iv) Different social security retirement ages.
    (v) Reduction for integration level.
    (vi) Overall permitted disparity.
    (A) In general.
    (B) Unit credit plans.
    (C) Fractional accrual plans.
    (vii) Non-FICA employees.
    (viii) Average annual compensation adjustment for offset plan.
    (ix) PIA offsets.
    (3) Examples.
    (d) Requirements for integration level or offset compensation.
    (1) In general.
    (2) Covered compensation.
    (3) Uniform percentage of covered compensation.
    (4) Single dollar amount.
    (5) Intermediate amount.
    (6) Intermediate amount safe harbor.
    (7) Prorated integration level for short plan year.
    (8) Demographic requirements.
    (i) In general.
    (ii) Attained age requirement.
    (iii) Nondiscrimination requirement.
    (A) Minimum percentage test.
    (B) Ratio test.
    (C) High dollar amount test.
    (D) Individual disparity reductions.
    (9) Reduction in the 0.75-percent factor if integration or offset 
level exceeds covered compensation.
    (i) In general.
    (ii) Uniform percentage of covered compensation.
    (iii) Single dollar amount.
    (A) Plan-wide reduction.
    (B) Individual reductions.
    (iv) Reductions.
    (A) Table.
    (B) Interpolation.
    (10) Examples.
    (e) Adjustments to the 0.75-percent factor for benefits commencing 
at ages other than social security retirement age.
    (1) In general.
    (2) Adjustments.
    (i) Benefits commencing on or after age 55 and before social 
security retirement age.
    (ii) Benefits commencing after social security retirement age and on 
or before age 70.
    (iii) Benefits commencing before age 55.
    (iv) Benefits commencing after age 70.
    (3) Tables.
    (4) Benefit commencement date.
    (i) In general.
    (ii) Qualified social security supplement.
    (5) Examples.
    (f) Benefits, rights, and features.
    (1) Defined benefit excess plan.
    (2) Offset plan.
    (3) Examples.

[[Page 261]]

    (g) No reductions in 0.75-percent factor for ancillary benefits.
    (h) Benefits attributable to employee contributions not taken into 
account.
    (i) Multiple integration levels. [Reserved]
    (j) Additional rules.

           Sec. 1.401(l)-4  Special rules for railroad plans.

    (a) In general.
    (b) Defined contribution plans.
    (1) In general.
    (2) Single integration level method.
    (i) In general.
    (ii) Definitions.
    (3) Two integration level method.
    (i) In general.
    (ii) Total disparity requirement.
    (iii) Intermediate disparity requirement.
    (iv) Definitions.
    (c) Defined benefit excess plans.
    (1) In general.
    (2) Single integration level method.
    (i) In general.
    (ii) Definitions.
    (3) Two integration level method.
    (i) In general.
    (ii) Employee with lower covered compensation.
    (iii) Employee with lower railroad retirement covered compensation.
    (iv) Definitions.
    (d) Offset plans.
    (1) In general.
    (2) Maximum tier 2 and supplementary annuity offset allowance.
    (e) Additional rules.
    (1) Definitions.
    (2) Adjustments to 0.75-percent factor.
    (3) Adjustments to 0.56-percent factor.
    (4) Overall permitted disparity.

          Sec. 1.401(l)-5  Overall permitted disparity limits.

    (a) Introduction.
    (1) In general.
    (2) Plan requirements.
    (3) Plans taken into account.
    (b) Annual overall permitted disparity limit.
    (1) In general.
    (2) Total annual disparity fraction.
    (3) Annual defined contribution plan disparity fraction.
    (4) Annual defined benefit excess plan disparity fraction.
    (5) Annual offset plan disparity fraction.
    (i) In general.
    (ii) PIA offset plans.
    (6) Annual imputed disparity fraction.
    (7) Annual nondisparate fraction.
    (8) Determination of fraction.
    (i) General rule
    (ii) Multiple formulas.
    (iii) Offset arrangements.
    (A) In general.
    (B) Defined benefit plans.
    (C) Defined contribution plans.
    (iv) Applicable percentages.
    (v) Fractional accrual plans.
    (9) Examples.
    (c) Cumulative permitted disparity limit.
    (1) In general.
    (i) Employees who benefit under defined benefit plans.
    (ii) Employees who do not benefit under defined benefit plans.
    (iii) Certain plan years disregarded.
    (iv) Determination of type of plan.
    (v) Applicable plan years.
    (vi) Transition rule for defined contribution plans.
    (2) Cumulative disparity fraction.
    (3) Determination of total annual disparity fractions for prior 
years.
    (4) Special rules for greater of formulas and offset arrangements.
    (i) Greater of formulas.
    (A) In general.
    (B) Separate satisfaction by formulas.
    (C) Single plan.
    (ii) Offset arrangements.
    (A) In general.
    (B) Separate satisfaction by plans.
    (C) No other plan.
    (5) Examples.
    (d) Additional rules.

         Sec. 1.401(l)-6  Effective dates and transition rules.

     (a) Statutory effective date.
     (1) In general.
     (2) Collectively bargained plans.
     (b) Regulatory effective date.
     (1) In general.
     (2) Plans of tax-exempt organizations.
     (3) Defined contribution plans.
     (4) Defined benefit plans.
     (c) Compliance during transition period.

[T.D. 8359, 56 FR 47617, Sept. 19, 1991; 57 FR 10818, Mar. 31, 1992, as 
amended by T.D. 8486, 58 FR 46830, Sept. 3, 1993]



Sec. 1.401(l)-1  Permitted disparity in employer-provided contributions or benefits.

    (a) Permitted disparity--(1) In general. Section 401(a)(4) provides 
that a plan is a qualified plan only if the amount of contributions or 
benefits provided under the plan does not discriminate in favor of 
highly compensated employees. See Sec. 1.401(a)(4)-1(b)(2). Section 
401(a)(5)(C) provides that a plan does not discriminate in favor of 
highly compensated employees merely because of disparities in employer-
provided contributions or benefits provided to, or on behalf of, 
employees under the plan that are permitted

[[Page 262]]

under section 401(l). Thus, if a plan satisfies section 401(l), 
permitted disparities in employer-provided contributions or benefits 
under a plan are disregarded, by reason of section 401(a)(5)(C), in 
determining whether the plan satisfies any of the safe harbors under 
Secs. 1.401(a)(4)-2(b)(2) and 1.401(a)(4)-3(b). However, even if 
disparities in employer-provided contributions or benefits under a plan 
are permitted under section 401(l) and thus do not cause the plan to 
fail to satisfy Sec. 1.401(a)(4)-1(b)(2), the plan may still fail to 
satisfy section 401(a)(4) for other reasons. Similarly, even if 
disparities in employer-provided contributions or benefits under a plan 
are not permitted under section 401(l) and thus may not be disregarded 
under section 401(a)(4) by reason of section 401(l), the plan may still 
be found to be nondiscriminatory under the tests of section 401(a)(4), 
including the rules for imputing permitted disparity under 
Sec. 1.401(a)(4)-7.
    (2) Overview. Rules relating to disparities in employer-provided 
contributions under a defined contribution plan are provided in 
Sec. 1.401(l)-2. For rules relating to disparities in employer-provided 
benefits under a defined benefit plan, see Sec. 401(l)-3. For rules 
relating to the application of section 401(l) to a plan maintained by a 
railroad employer, see Sec. 1.401(l)-4. For rules relating to the 
overall permitted disparity limits, see Sec. 1.401(l)-5. For rules 
relating to the effective date of section 401(l), see Sec. 1.401(l)-6.
    (3) Exclusive rules. The rules provided in Sec. Sec. 1.401(l)-1 
through 1.401(l)-6 are the exclusive means for a plan to satisfy 
sections 401(l) and 401(a)(5)(C). Accordingly, a plan that provides 
disparities in employer-provided contributions or benefits that are not 
permitted under Sec. Sec. 1.401(l)-1 through 1.401(l)-6 does not satisfy 
section 401(l) or 401(a)(5)(C).
    (4) Exceptions. Sections 401(a)(5)(C) and 401(l) are not available 
in the following arrangements--
    (i) A plan maintained by an employer, determined for purposes of the 
Federal Insurance Contributions Act or the Railroad Retirement Tax Act, 
as applicable, that does not pay any wages within the meaning of section 
3121(a) or compensation within the meaning of section 3231(e). For this 
purpose, a plan maintained for a self-employed individual within the 
meaning of section 401(c)(1), who is also subject to the tax under 
section 1401, is deemed to be a plan maintained by an employer that pays 
wages within the meaning of section 3121(a).
    (ii) A plan, or the portion of a plan, that is an employee stock 
ownership plan described in section 4975(e)(7) (an ESOP) or a tax credit 
employee stock ownership plan described in section 409(a) (a TRASOP), 
except as provided in Sec. 54.4975-11(a)(7)(ii) of this chapter, which 
contains a limited exception to this rule for certain ESOPs in existence 
on November 1, 1977.
    (iii) With respect to elective contributions as defined in 
Sec. 1.401(k)-1(g)(3) under a qualified cash or deferred arrangement as 
defined in Sec. 1.401(k)-1(a)(4)(i) or with respect to employee or 
matching contributions defined in Sec. 1.401(m)-1(f)(6) or (f)(12), 
respectively.
    (iv) With respect to contributions to a simplified employee pension 
made under a salary reduction arrangement described in section 408(k)(6) 
(a SARSEP).
    (5) Additional rules. The Commissioner may, in revenue rulings, 
notices, or other documents of general applicability, prescribe 
additional rules that may be necessary or appropriate to carry out the 
purposes of section 401(l), including rules applying section 401(l) with 
respect to an employer that pays wages within the meaning of section 
3121(a) or compensation within the meaning of section 3231(e) for some 
years and not other years.
    (b) Relationship to other requirements. Unless explicitly provided 
otherwise, section 401(l) does not provide an exception to any other 
requirement under section 401(a). Thus, for example, even if the plan 
complies with section 401(l), the plan may not provide a benefit lower 
than the minimum benefit required under section 416. Moreover, a plan 
may not adjust benefits in any manner that results in a decrease in any 
employee's accrued benefit in violation of section 411(d)(6) and section 
411(b)(1)(G). However, a plan does not fail to satisfy section 401(l) 
merely because, in order to ensure compliance with section 411, an 
employee's accrued

[[Page 263]]

benefit under the plan is defined as the greater of the employee's 
previously accrued benefit and the benefit determined under a strict 
application of the plan's benefit formula and accrual method. See 
section 401(a)(15) for additional rules relating to circumstances under 
which plan benefits may not be decreased because of increases in social 
security benefits.
    (c) Definitions. In applying Secs. 1.401(l)-1 through 1.401(l)-6, 
the definitions in this paragraph (c) govern unless otherwise provided.
    (1) Accumulation plan. Accumulation plan means an accumulation plan 
within the meaning of Sec. 1.401(a)(4)-12.
    (2) Average annual compensation. Average annual compensation means 
average annual compensation within the meaning of Sec. 1.401(a)(4)-
3(e)(2).
    (3) Base benefit percentage. Base benefit percentage means the rate 
at which employer-provided benefits are determined under a defined 
benefit excess plan with respect to an employee's average annual 
compensation at or below the integration level (expressed as a 
percentage of such average annual compensation).
    (4) Base contribution percentage. Base contribution percentage means 
the rate at which employer contributions are allocated to the account of 
an employee under a defined contribution excess plan with respect to the 
employee's plan year compensation at or below the integration level 
(expressed as a percentage of such plan year compensation).
    (5) Benefit formula. Benefit formula means benefit formula within 
the meaning of Sec. 1.401(a)(4)-12.
    (6) Benefit, right, or feature. Benefit, right, or feature means a 
benefit, right, or feature within the meaning of Sec. 1.401(a)(4)-12.
    (7) Covered compensation--(i) In general. Covered compensation for 
an employee means the average (without indexing) of the taxable wage 
bases in effect for each calendar year during the 35-year period ending 
with the last day of the calendar year in which the employee attains (or 
will attain) social security retirement age. A 35-year period is used 
for all individuals regardless of the year of birth of the individual. 
In determining an employee's covered compensation for a plan year, the 
taxable wage base for all calendar years beginning after the first day 
of the plan year is assumed to be the same as the taxable wage base in 
effect as of the beginning of the plan year. An employee's covered 
compensation for a plan year beginning after the 35-year period 
applicable under this paragraph (c)(7)(i) is the employee's covered 
compensation for the plan year during which the 35-year period ends. An 
employee's covered compensation for a plan year beginning before the 35-
year period applicable under this paragraph (c)(7)(i) is the taxable 
wage base in effect as of the beginning of the plan year.
    (ii) Special rules--(A) Rounded table. For purposes of determining 
the amount of an employee's covered compensation under paragraph 
(c)(7)(i) of this section, a plan may use tables, provided by the 
Commissioner, that are developed by rounding the actual amounts of 
covered compensation for different years of birth.
    (B) Proposed regulation definition. For plan years beginning before 
January 1, 1995, in lieu of the definition of covered compensation 
contained in paragraph (c)(7)(i) of this section, a plan may define 
covered compensation as the average (without indexing) of the taxable 
wage bases in effect for each calendar year during the 35-year period 
ending with the last day of the calendar year preceding the calendar 
year in which the employee attains (or will attain) social security 
retirement age.
    (iii) Period for using covered compensation amount. A plan must 
generally provide that an employee's covered compensation is 
automatically adjusted for each plan year. However, a plan may use an 
amount of covered compensation for employees equal to each employee's 
covered compensation (as defined in paragraph (c)(7)(i) or (c)(7)(ii) of 
this section) for a plan year earlier than the current plan year, 
provided the earlier plan year is the same for all employees and is not 
earlier than the later of--
    (A) The plan year that begins 5 years before the current plan year, 
and
    (B) The plan year beginning in 1989.
In the case of an accumulation plan, the benefit accrued for an employee 
in

[[Page 264]]

prior years is not affected by changes in the employee's covered 
compensation that occur in later years.
    (8) Defined benefit plan. Defined benefit plan means a defined 
benefit plan within the meaning of Sec. 1.410(b)-9.
    (9) Defined contribution plan. Defined contribution plan means a 
defined contribution plan within the meaning of Sec. 1.410(b)-9. In 
addition, for purposes of Secs. 1.401(l)-1 through 1.401(l)-6, a defined 
contribution plan includes a simplified employee pension as defined in 
section 408(k) (SEP), other than a SEP (or portion or a SEP) that is a 
salary reduction arrangement described in section 408(k)(6) (SARSEP).
    (10) Disparity. Disparity means--
    (i) In the case of a defined contribution excess plan, the amount by 
which the excess contribution percentage exceeds the base contribution 
percentage,
    (ii) In the case of a defined benefit excess plan, the amount by 
which the excess benefit percentage exceeds the base benefit percentage, 
and
    (iii) In the case of an offset plan, the offset percentage.
    (11) Employee. Employee means employee within the meaning of 
Sec. 1.401(a)(4)-12.
    (12) Employer. Employer means the employer within the meaning of 
Sec. 1.410(b)-9.
    (13) Employer contributions. Employer contributions means all 
amounts taken into account with respect to an employee under a plan 
under Sec. 1.401(a)(4)-2(c)(2)(ii).
    (14) Excess benefit percentage. Excess benefit percentage means the 
rate at which employer-provided benefits are determined under a defined 
benefit excess plan with respect to an employee's average annual 
compensation above the integration level (expressed as a percentage of 
such average annual compensation).
    (15) Excess contribution percentage. Excess contribution percentage 
means the rate at which employer contributions are allocated to the 
account of an employee under a defined contribution excess plan with 
respect to the employee's plan year compensation above the integration 
level (expressed as a percentage of such plan year compensation).
    (16) Excess plan--(i) Defined benefit excess plan. Defined benefit 
excess plan means a defined benefit plan under which the rate at which 
employer-provided benefits are determined with respect to average annual 
compensation above the integration level under the plan (expressed as a 
percentage of such average annual compensation) is greater than the rate 
at which employer-provided benefits are determined with respect to 
average annual compensation at or below the integration level (expressed 
as a percentage of such average annual compensation).
    (ii) Defined contribution excess plan. Defined contribution excess 
plan means a defined contribution plan under which the rate at which 
employer contributions are allocated to the account of an employee with 
respect to plan year compensation above the integration level (expressed 
as a percentage of such plan year compensation) is greater than the rate 
at which employer contributions are allocated to the account of an 
employee with respect to plan year compensation at or below the 
integration level (expressed as a percentage of such plan year 
compensation).
    (17) Final average compensation--(i) In general. Final average 
compensation for an employee means the average of the employee's annual 
section 414(s) compensation for the 3-consecutive-year period ending 
with or within the plan year or for the employee's period of employment 
if shorter. The year in which an employee terminates employment may be 
disregarded in determining final average compensation. The definition of 
final average compensation used in the plan must be applied consistently 
with respect to all employees. For example, if the plan provides that 
the year in which the employee terminates employment is disregarded in 
determining final average compensation, the year must be disregarded for 
all employees who terminate employment in that year. The plan may 
specify any 3-consecutive-year period ending in the plan year, provided 
the period is determined consistently for all employees. See 
Sec. 1.401(a)(4)-11(d)(3)(iii) and Sec. 1.414(s)-1(f) for rules 
permitting service and compensation with another employer to be

[[Page 265]]

taken into account for purposes of nondiscrimination testing, including 
satisfying section 401(l).
    (ii) Limitations. In determining an employee's final average 
compensation under this paragraph (c)(17), annual section 414(s) 
compensation for any year in excess of the taxable wage base in effect 
at the beginning of that year must not be taken into account. A plan may 
provide that each employee's final average compensation for a plan year 
is limited to the employee's average annual compensation for the plan 
year.
    (iii) Determination of section 414(s) compensation. A plan must use 
the same definition of section 414(s) compensation to determine final 
average compensation as the plan uses to determine average annual 
compensation (or plan year compensation in the case of an accumulation 
plan).
    (18) Gross benefit percentage. Gross benefit percentage means the 
rate at which employer-provided benefits are determined under an offset 
plan (before application of the offset) with respect to an employee's 
average annual compensation (expressed as a percentage of average annual 
compensation).
    (19) Highly compensated employee. Highly compensated employee means 
HCE within the meaning of Sec. 1.401(a)(4)-12.
    (20) Integration level. Integration level means the dollar amount 
specified in an excess plan at or below which the rate of employer-
provided contributions or benefits (expressed in each case as a 
percentage of an employee's plan year compensation or average annual 
compensation up to the specified dollar amount) under the plan is less 
than the rate of employer-provided contributions or benefits (expressed 
in each case as a percentage of the employee's plan year compensation or 
average annual compensation above the specified dollar amount) under the 
plan above such dollar amount.
    (21) Nonexcludable employee. Nonexcludable employee means 
nonexcludable employee within the meaning of Sec. 1.401(a)(4)-12.
    (22) Nonhighly compensated employee. Nonhighly compensated employee 
means NHCE within the meaning of Sec. 1.401(a)(4)-12.
    (23) Offset level. Offset level means the dollar limit specified in 
the plan on the amount of each employee's final average compensation 
taken into account in determining the offset under an offset plan.
    (24) Offset percentage. Offset percentage means the rate at which an 
employee's employer-provided benefit is reduced or offset under an 
offset plan (expressed as a percentage of the employee's final average 
compensation up to the offset level).
    (25) Offset plan. Offset plan means a defined benefit plan that is 
not a defined benefit excess plan and that provides that each employee's 
employer-provided benefit is reduced or offset by a specified percentage 
of the employee's final average compensation up to the offset level 
under the plan.
    (26) PIA. PIA or primary insurance amount means the old-age 
insurance benefit under section 202 of the Social Security Act (42 
U.S.C. 402) payable to each employee at a single age that is not earlier 
than age 62 and not later than age 65. PIA must be determined under the 
Social Security Act as in effect at the time the employee's offset is 
determined. Thus, it is determined without assuming any future increases 
in compensation, any future increases in the taxable wage base, any 
changes in the formulas used under the Social Security Act to determine 
PIA (for example, changes in the breakpoints), or any future increases 
in the consumer price index. However, it may be assumed that the 
employee will continue to receive compensation at the same rate as that 
received at the time the offset is being determined, until reaching the 
single age described in the first sentence of this paragraph (c)(26). 
PIA must be determined in a consistent manner for all employees and in 
accordance with revenue rulings or other guidance provided by the 
Commissioner.
    (27) Plan. Plan means a plan within the meaning of Sec. 1.401(a)(4)-
12 or a component plan treated as a plan under Sec. 1.401(a)(4)-9(c).
    (28) Plan year compensation. Plan year compensation means plan year 
compensation within the meaning of Sec. 1.401(a)(4)-12.

[[Page 266]]

    (29) Qualified plan. Qualified plan means a qualified plan within 
the meaning of Sec. 1.401(a)(4)-12.
    (30) Section 401(l) plan. Section 401(l) plan means a section 401(l) 
plan within the meaning of Sec. 1.401(a)(4)-12.
    (31) Section 414(s) compensation. Section 414(s) compensation means 
section 414(s) compensation within the meaning of Sec. 1.401(a)(4)-12.
    (32) Social security retirement age. Social security retirement age 
for an employee means the social security retirement age of the employee 
as determined under section 415(b)(8).
    (33) Straight life annuity. Straight life annuity means a straight 
life annuity within the meaning of Sec. 1.401(a)(4)-12.
    (34) Taxable wage base. Taxable wage base means the contribution and 
benefit base under section 230 of the Social Security Act (42 U.S.C. 
430).
    (35) Year of service. Year of service means a year of service as 
defined in the plan for purposes of the benefit formula and the accrual 
method under the plan, unless the context clearly indicates otherwise. 
See Sec. 1.401(a)(4)-11(d)(3) for rules on years of service that may be 
taken into account for purposes of nondiscrimination testing, including 
satisfying section 401(l).

[T.D. 8359, 56 FR 47618, Sept. 19, 1991; 57 FR 10818, 10951, Mar. 31, 
1992, as amended by T.D. 8486, 58 FR 46831, Sept. 3, 1993]



Sec. 1.401(l)-2  Permitted disparity for defined contribution plans.

    (a) Requirements--(1) In general. Disparity in the rates of employer 
contributions allocated to employees' accounts under a defined 
contribution plan is permitted under section 401(l) and this section for 
a plan year only if the plan satisfies paragraphs (a)(2) through (a)(5) 
of this section. A plan that otherwise satisfies this paragraph (a) will 
not be considered to fail section 401(l) merely because it contains one 
or more provisions described in Sec. 1.401(a)(4)-2(b)(4). See 
Sec. 1.401(a)(4)-8(b)(3)(i)(C) for special rules applicable to target 
benefit plans.
    (2) Excess plan requirement. The plan must be a defined contribution 
excess plan.
    (3) Maximum disparity. The disparity for all employees under the 
plan must not exceed the maximum permitted disparity prescribed in 
paragraph (b) of this section.
    (4) Uniform disparity. The disparity for all employees under the 
plan must be uniform within the meaning of paragraph (c) of this 
section.
    (5) Integration level. The integration level specified in the plan 
must satisfy paragraph (d) of this section.
    (b) Maximum permitted disparity--(1) In general. The disparity 
provided for the plan year must not exceed the maximum excess allowance 
as defined in paragraph (b)(2) of this section. In addition, the plan 
must satisfy the overall permitted disparity limits of Sec. 1.401(l)-5.
    (2) Maximum excess allowance. The maximum excess allowance for a 
plan year is the lesser of--
    (i) The base contribution percentage, or
    (ii) The greater of--
    (A) 5.7 percent, reduced as required under paragraph (d) of this 
section, or
    (B) The percentage rate of tax under section 3111(a), in effect as 
of the beginning of the plan year, that is attributable to the old age 
insurance portion of the Old Age, Survivors and Disability Insurance 
provisions of the Social Security Act, reduced as required under 
paragraph (d) of this section. For a year in which the percentage rate 
of tax described in this paragraph (b)(2)(ii)(B) exceeds 5.7 percent, 
the Commissioner will publish the rate of such tax and a revised table 
under paragraph (d)(4) of this section.
    (c) Uniform disparity--(1) In general. The disparity provided under 
a plan is uniform only if the plan uses the same base contribution 
percentage and the same excess contribution percentage for all employees 
in the plan.
    (2) Deemed uniformity--(i) In general. The disparity under a plan 
does not fail to be uniform for purposes of this paragraph (c) merely 
because the plan contains one or more of the provisions described in 
paragraphs (c)(2) (ii) and (iii) of this section.
    (ii) Overall permitted disparity. The plan provides that, in the 
case of each employee who has reached the cumulative permitted disparity 
limit applicable to the employee under Sec. 1.401(l)-5(c), employer 
contributions are allocated to the account of the employee

[[Page 267]]

with respect to the employee's total plan year compensation at the 
excess contribution percentage.
    (iii) Non-FICA employees. The plan provides that, in the case of 
each employee under the plan with respect to whom none of the taxes 
under section 3111(a), section 3221, or section 1401 is required to be 
paid, employer contributions are allocated to the account of the 
employee with respect to the employee's total plan year compensation at 
the excess contribution percentage.
    (d) Integration level--(1) In general. The integration level under 
the plan must satisfy paragraph (d)(2), (d)(3), or (d)(4) of this 
section, as modified by paragraph (d)(5) of this section in the case of 
a short plan year. If a reduction applies to the disparity factor under 
this paragraph (d), the reduced factor is used for all purposes in 
determining whether the permitted disparity rules for defined 
contribution plans are satisfied.
    (2) Taxable wage base. The requirement of this paragraph (d)(2) is 
satisfied only if the integration level under the plan for each employee 
is the taxable wage base in effect as of the beginning of the plan year.
    (3) Single dollar amount. The requirement of this paragraph (d)(3) 
is satisfied only if the integration level under the plan for all 
employees is a single dollar amount (either specified in the plan or 
determined under a formula specified in the plan) that does not exceed 
the greater of $10,000 or 20 percent of the taxable wage base in effect 
as of the beginning of the plan year.
    (4) Intermediate amount. The requirement of this paragraph (d)(4) is 
satisfied only if--
    (i) The integration level under the plan for all employees is a 
single dollar amount (either specified in the plan or determined under a 
formula specified in the plan) that is greater than the highest amount 
determined under paragraph (d)(3) of this section and less than the 
taxable wage base, and
    (ii) The plan adjusts the factor determined under paragraph 
(b)(2)(ii) of this section in accordance with the table below.

                                  Table                                 
------------------------------------------------------------------------
               If the integration level                  The 5.7 percent
-------------------------------------------------------   factor in the 
                                                         maximum excess 
           Is more than             But not more than     allowance is  
                                                          reduced to--  
------------------------------------------------------------------------
Greater of $10,000 or 20% of       80% of taxable wage  4.3%            
 taxable wage base.                 base.                               
80% of taxable wage base.........  Amount less than     5.4%            
                                    taxable wage base.                  
------------------------------------------------------------------------

    (5) Prorated integration level for short plan year. If a plan uses 
paragraph (2) or (4) of the definition of plan year compensation under 
Sec. 1.401(a)(4)-12 (i.e., section 414(s) compensation for the plan year 
or the period of plan participation) and has a plan year that comprises 
fewer than 12 months, the integration level under the plan for each 
employee must be an amount equal to the otherwise applicable integration 
level described in paragraph (d)(2), (d)(3), or (d)(4) of this section, 
multiplied by a fraction, the numerator of which is the number of months 
in the plan year, and the denominator of which is 12. No adjustment to 
the maximum excess allowance is required as a result of the application 
of this paragraph (d)(5), other than any adjustment already required 
under paragraph (d)(4) of this section.
    (e) Examples. The following examples illustrate this section. In 
each example, 5.7 percent exceeds the percentage rate of tax described 
in paragraph (b)(2)(ii)(B) of this section.

    Example 1. Employer X maintains a profit-sharing plan with the 
calendar year as its plan year. For the 1989 plan year, the plan 
provides that the account of each employee who has plan year 
compensation in excess of the taxable wage base in effect at the 
beginning of the plan year will receive an allocation for the plan year 
of 5.7 percent of plan year compensation in excess of the taxable wage 
base. The plan provides that no allocation will be made to the account 
of any employee for the plan year with respect to plan year compensation 
not in excess of the taxable wage base. The maximum excess allowance is 
exceeded for the 1989 plan year because the excess contribution 
percentage (5.7 percent) for the plan year exceeds the base contribution 
percentage (0 percent) for the plan year by more than the lesser of the 
base contribution percentage (0 percent) or the percentage determined 
under paragraph (b)(2)(ii) of this section (5.7 percent) for the plan 
year.

[[Page 268]]

    Example 2. Employer Y maintains a money purchase pension plan with 
the calendar year as its plan year. For the 1990 plan year, the plan 
provides that the account of each employee will receive an allocation of 
5 percent of the employee's plan year compensation up to the taxable 
wage base in effect at the beginning of the plan year plus an allocation 
of 10 percent of the employee's plan year compensation in excess of the 
taxable wage base. The maximum excess allowance is not exceeded for the 
plan year because the excess contribution percentage (10 percent) for 
the plan year does not exceed the base contribution percentage (5 
percent) for the plan year by more than the lesser of the base 
contribution percentage (5 percent) or the percentage determined under 
paragraph (b)(2)(ii) of this section (5.7 percent) for the plan year.
    Example 3. Assume the same facts as in Example 2, except that the 
plan provides that, with respect to plan year compensation in excess of 
the taxable wage base, the account of each employee will receive an 
allocation for the plan year of 12 percent of such compensation. The 
maximum excess allowance is exceeded for the plan year because the 
excess contribution percentage (12 percent) for the plan year exceeds 
the base contribution percentage (5 percent) for the plan year by more 
than the lesser of the base contribution percentage (5 percent) or the 
percentage determined under paragraph (b)(2)(ii) of this section (5.7 
percent) for the plan year.
    Example 4. Employer Z maintains a money purchase pension plan with a 
plan year beginning July 1 and ending June 30. The taxable wage base for 
the 1990 calendar year is $51,300 and the taxable wage base for the 1991 
calendar year is $53,400. For the plan year beginning July 1, 1990, and 
ending June 30, 1991, the plan provides that the account of each 
employee will receive an allocation of 4 percent of the employee's plan 
year compensation up to $53,400 plus an allocation of 6 percent of the 
employee's plan year compensation in excess of $53,400. Although the 
excess contribution percentage (6 percent) for the plan year does not 
exceed the base contribution percentage (4 percent) for the plan year by 
more than the lesser of the base contribution percentage (4 percent) or 
the percentage determined under paragraph (b)(2)(ii) of this section 
(5.7 percent), the plan does not satisfy paragraph (a)(5) of this 
section because the integration level of $53,400 exceeds the maximum 
permitted integration level of $51,300 (the taxable wage base in effect 
as of the beginning of the plan year).
    Example 5. Assume the same facts as in Example 4, except that for 
the plan year beginning July 1, 1990, and ending June 30, 1991, the plan 
provides that the account of each employee will receive an allocation of 
5 percent of the employee's plan year compensation up to $30,000 plus an 
allocation of 9 percent of the employee's plan year compensation in 
excess of $30,000. The integration level of $30,000 is 58 percent of the 
taxable wage base of $51,300 for the 1990 calendar year. The maximum 
excess allowance is not exceeded for the plan year because the excess 
contribution percentage (9 percent) for the plan year does not exceed 
the base contribution percentage (5 percent) for the plan year by more 
than the lesser of the base contribution percentage (5 percent) or the 
percentage determined under paragraphs (b)(2)(ii) and (d) of this 
section (4.3 percent) for the plan year.

[T.D. 8359, 56 FR 47621, Sept. 19, 1991; 57 FR 10818, 10951, Mar. 31, 
1992, as amended by T.D. 8486, 58 FR 46832, Sept. 3, 1993]



Sec. 1.401(l)-3  Permitted disparity for defined benefit plans.

    (a) Requirements--(1) In general. Disparity in the rates of 
employer-provided benefits under a defined benefit plan is permitted 
under section 401(l) and this section for a plan year only if the plan 
satisfies paragraphs (a)(2) through (a)(6) of this section. A plan that 
otherwise satisfies this paragraph (a) will not be considered to fail 
section 401(l) merely because it contains one or more provisions 
described in Sec. 1.401(a)(4)-3(b)(6) (such as multiple formulas). 
Section 401(a)(5)(D) and Sec. 1.401(a)(5)-1(d) provide other rules under 
which benefits provided under a defined benefit plan (including defined 
benefit excess and offset plans) may be limited. See Sec. 1.401(a)(4)-
3(b)(5)(viii) for special rules under which an insurance contract plan 
may satisfy Sec. 1.401(a)(4)-1(b)(2) and section 401(l). See 
Sec. 1.401(a)(4)-8(c)(3)(iii)(B) for special rules applicable to cash 
balance plans.
    (2) Excess or offset plan requirement. The plan must be a defined 
benefit excess plan or an offset plan.
    (3) Maximum disparity. The disparity for all employees under the 
plan must not exceed the maximum permitted disparity prescribed in 
paragraph (b) of this section.
    (4) Uniform disparity. The disparity for all employees under the 
plan must be uniform within the meaning of paragraph (c) of this 
section.
    (5) Integration or offset level. The integration or offset level 
specified in the plan must satisfy paragraph (d) of this section.
    (6) Benefits, rights, and features. The benefits, rights, and 
features provided

[[Page 269]]

under the plan must satisfy paragraph (f)(1) of this section.
    (b) Maximum permitted disparity--(1) In general. In the case of a 
defined benefit excess plan, the disparity provided for the plan year 
may not exceed the maximum excess allowance as defined in paragraph 
(b)(2) of this section. In the case of an offset plan, the disparity 
provided for the plan year may not exceed the maximum offset allowance 
as defined in paragraph (b)(3) of this section. In addition, either type 
of plan must satisfy the overall permitted disparity limits of 
Sec. 1.401(l)-5.
    (2) Maximum excess allowance. The maximum excess allowance for a 
plan year is the lesser of--
    (i) 0.75 percent, reduced as required under paragraphs (d) and (e) 
of this section, or
    (ii) The base benefit percentage for the plan year.
    (3) Maximum offset allowance. The maximum offset allowance for a 
plan year is the lesser of--
    (i) 0.75 percent, reduced as required under paragraphs (d) and (e) 
of this section, or
    (ii) One-half of the gross benefit percentage, multiplied by a 
fraction (not to exceed one), the numerator of which is the employee's 
average annual compensation, and the denominator of which is the 
employee's final average compensation up to the offset level.
    (4) Rules of application--(i) Disparity provided for the plan year. 
Disparity provided for the plan year generally means the disparity 
provided under the plan's benefit formula for the employee's year of 
service with respect to the plan year. However, if a plan determines 
each employee's accrued benefit under the fractional accrual method of 
section 411(b)(1)(C), disparity provided under the plan also means the 
disparity in the benefit accrued for the employee for the plan year. 
Thus, a plan using the fractional accrual method must satisfy this 
paragraph (b) with respect to the plan's benefit formula and with 
respect to the benefits accrued for the plan year.
    (ii) Reduction in disparity rate. Any reductions in the 0.75-percent 
factor required under paragraphs (d) and (e) of this section are 
cumulative.
    (iii) Normal and optional forms of benefit--(A) In general. A plan 
satisfies the maximum permitted disparity requirement of this paragraph 
(b) only if the plan satisfies this paragraph (b) with respect to each 
optional form of benefit (including the normal form of benefit) provided 
under the plan.
    (B) Level annuity forms. In the case of an optional form of benefit 
payable as a level annuity over a period of not less than the life of 
the employee, the optional form must satisfy the maximum permitted 
disparity requirement of this paragraph (b). Thus, for example, if the 
form of a defined benefit plan's normal retirement benefit is an annuity 
for life with a 10-year certain feature and the plan permits employees 
to elect an optional form of benefit in the form of a straight life 
annuity, the plan must satisfy the maximum disparity requirement of this 
paragraph (b) with respect to each of the optional forms of benefit. An 
annuity that decreases only after the death of the employee, or that 
decreases only after the death of either the employee or the joint 
annuitant, is considered a level annuity for purposes of this paragraph 
(b).
    (C) Other forms. In the case of an optional form of benefit that is 
not described in paragraph (b)(4)(iii)(B) of this section, the optional 
form must satisfy the maximum permitted disparity requirement of this 
paragraph (b), when the respective portions of the optional form are 
normalized under the rules of Sec. 1.401(a)(4)-12 to a straight life 
annuity commencing at the same time as the optional form of benefit, 
regardless of whether the straight life annuity form is actually 
provided under the plan. In the case of a defined benefit excess plan, 
the respective portions are the portion of the optional form 
attributable to average annual compensation up to the integration level 
(the ``base portion'') and the portion of the optional form attributable 
to average annual compensation in excess of the integration level (the 
``excess portion''). In the case of an offset plan, the respective 
portions are the optional form determined without regard to the offset 
(the ``gross amount'') and the offset applied to the gross amount to 
determine the optional form (the ``offset amount'').

[[Page 270]]

    (D) Post-retirement cost-of-living adjustments--(1) In general. A 
benefit does not fail to be a level annuity described in paragraph 
(b)(4)(iii)(B) of this section merely because it provides an automatic 
post-retirement cost-of-living adjustment that satisfies paragraph 
(b)(4)(iii)(D)(2) of this section. Thus, increases in the employee's 
annuity pursuant to such a cost-of-living adjustment do not cause the 
disparity provided under the optional form of benefit to exceed the 
maximum disparity permitted under this paragraph (b). For rules on ad 
hoc post-retirement cost-of-living adjustments, see Sec. 1.401(a)(4)-
10(b).
    (2) Requirements. A cost-of-living adjustment satisfies this 
paragaph (b)(4)(iii)(D)(2) if--
    (i) It is included in the accrued benefit of all employees, and.
    (ii) It increases, on a uniform and consistent basis, the benefits 
of all former employees who are no younger than age 62, at a rate no 
greater than adjustments to social security benefits under section 
215(i)(2)(A) of the Social Security Act that have occurred since the 
later of the employee's attainment of age 62 or commencement of 
benefits.
    (E) Section 417(e) exception. A plan will not fail to satisfy this 
paragraph (b) merely because the disparity in a benefit that is subject 
to the interest rate restrictions of sections 401(a)(11) and 417(e) 
exceeds the maximum disparity that would otherwise be allowed under this 
paragraph (b) if the increase in disparity is required to satisfy 
Sec. 1.417(e)-1(d). In applying the exception in this paragraph 
(b)(4)(iii)(E), for purposes of determining what is required under 
Sec. 1.417(e)-1(d), a plan may use the rate described in Sec. 1.417(e)-
1(d)(2)(i) for all employees, without regard to whether the present 
value of an employee's vested benefit exceeds $25,000.
    (5) Examples. The following examples illustrate this paragraph (b). 
Unless otherwise provided, the following facts apply. The plan is 
noncontributory and is the only plan ever maintained by the employer. 
The plan uses a normal retirement age of 65 and contains no provision 
that would require a reduction in the 0.75-percent factor under 
paragraph (b)(2) or (b)(3) of this section. In the case of a defined 
benefit excess plan, the plan uses each employee's covered compensation 
as the integration level; in the case of an offset plan, the plan uses 
each employee's covered compensation as the offset level and provides 
that an employee's final average compensation is limited to the 
employee's average annual compensation. Each example discusses the 
benefit formula applicable to an employee who has a social security 
retirement age of 65.

    Example 1. Plan N is a defined benefit excess plan that provides a 
normal retirement benefit of 0.5 percent of average annual compensation 
in excess of the integration level, for each year of service. The plan 
provides no benefits with respect to average annual compensation up to 
the integration level. The disparity provided under the plan exceeds the 
maximum excess allowance because the excess benefit percentage (0.5 
percent) exceeds the base benefit percentage (0 percent) by more than 
the base benefit percentage (0 percent).
    Example 2. Plan O is an offset plan that provides a normal 
retirement benefit equal to 2 percent of average annual compensation, 
minus 0.75 percent of final average compensation up to the offset level, 
for each year of service up to 35. The disparity provided under the plan 
satisfies this paragraph (b) because the offset percentage (0.75 
percent) does not exceed the maximum offset allowance equal to the 
lesser of 0.75 percent or one-half of the gross benefit percentage (1 
percent).
    Example 3. Plan P is a defined benefit excess plan that provides a 
normal retirement benefit of 0.5 percent of average annual compensation 
up to the integration level, plus 1.25 percent of average annual 
compensation in excess of the integration level, for each year of 
service up to 35. The disparity provided under the plan exceeds the 
maximum excess allowance because the excess benefit percentage (1.25 
percent) exceeds the base benefit percentage (0.5 percent) by more than 
the base benefit percentage (0.5 percent).
    Example 4. Plan Q is an offset plan that provides a normal 
retirement benefit of 1 percent of average annual compensation, minus 
0.75 percent of final average compensation up to the offset level, for 
each year of service up to 35. The disparity under the plan exceeds the 
maximum offset allowance because the offset percentage exceeds one-half 
of the gross benefit percentage (0.5 percent).
    Example 5. (a) Plan R is an offset plan that provides a normal 
retirement benefit of 1 percent of average annual compensation, minus 
0.5 percent of final average compensation up to the offset level, for 
each year of

[[Page 271]]

service up to 35. The plan determines an employee's average annual 
compensation using an averaging period comprising five consecutive 12-
month periods and taking into account the employee's compensation for 
the ten consecutive 12-month periods ending with the plan year. The plan 
does not provide that an employee's final average compensation is 
limited to the employee's average annual compensation.
    (b) Employee A has average annual compensation of $20,000, final 
average compensation of $25,000, and covered compensation of $32,000. 
The maximum offset allowance applicable to Employee A for the plan year 
under paragraph (b)(3) of this section is one-half of the gross benefit 
percentage multiplied by the ratio, not to exceed one, of Employee A's 
average annual compensation to Employee A's final average compensation 
up to the offset level. Thus, the maximum offset allowance is 0.4 
percent (\1/2\  x  1 percent x $20,000/$25,000). With respect to 
Employee A, the benefit formula provides an offset that exceeds the 
maximum offset allowance. The plan must therefore reduce Employee A's 
offset percentage to 0.4 percent. (Under paragraph (c)(2)(viii) of this 
section, Employee A's adjusted disparity rate is deemed uniform.)
    (c) Alternatively, under Sec. 1.401(l)-1(c)(17)(ii) (the definition 
of final average compensation), the plan could specify that an 
employee's final average compensation is limited to the amount of the 
employee's average annual compensation. Thus, the ratio of average 
annual compensation to final average compensation would always be equal 
to at least one, and the maximum offset allowance under the plan would 
be one-half of the gross benefit percentage.
    Example 6. Plan S is a defined benefit excess plan that provides a 
base benefit percentage of 1 percent of average annual compensation up 
to the integration level for each year of service. The plan also 
provides, for each of the first 10 years of service, an excess benefit 
percentage of 1.85 percent of average annual compensation in excess of 
the integration level. For each year of service after 10, the plan 
provides an excess benefit percentage of 1.65 percent of the employee's 
average annual compensation in excess of the integration level. The 
disparity provided under the plan exceeds the maximum excess allowance 
because the excess benefit percentage for each of the first ten years of 
service (1.85 percent) exceeds the base benefit percentage (1 percent) 
by more than 0.75 percent.
    Example 7. The facts are the same as in Example 6, except that the 
plan provides an excess benefit percentage of 1.65 percent of average 
annual compensation in excess of the integration level for each of the 
first 10 years of service and an excess benefit percentage of 1.85 
percent of average annual compensation in excess of the integration 
level for each year of service after 10. The disparity provided under 
the plan exceeds the maximum excess allowance because the excess benefit 
percentage for each year of service after 10 (1.85 percent) exceeds the 
base benefit percentage (1 percent) by more than 0.75 percent.
    Example 8. Plan T is a defined benefit excess plan that provides a 
normal retirement benefit of 1.0 percent of average annual compensation 
up to the integration level, plus 1.7 percent of average annual 
compensation in excess of the integration level, for each year of 
service up to 35, payable in the form of a joint and survivor annuity. 
The plan also allows an employee to receive the retirement benefit in 
the form of an actuarially equivalent straight life annuity. The 
actuarially equivalent straight life annuity equals 1.09 percent of 
average annual compensation up to the integration level, plus 1.85 
percent of average annual compensation in excess of the integration 
level, for each year of service up to 35. The disparity provided under 
the plan with respect to the straight life annuity form of benefit (0.76 
percent) exceeds the maximum excess allowance because the excess benefit 
percentage (1.85 percent) exceeds the base benefit percentage (1.09 
percent) by more than 0.75 percent.
    Example 9. Plan U is a defined benefit excess plan that provides a 
normal retirement benefit of 1.0 percent of average annual compensation 
up to the integration level, plus 1.7 percent of average annual 
compensation in excess of the integration level, for each year of 
service up to 35, payable in the form of a straight life annuity. Plan U 
provides a single sum optional form of benefit at normal retirement age 
equal to 100 times the monthly annuity payable at that age. Thus, if an 
employee elects the single sum optional form of benefit, the base 
portion of the single sum benefit is 8.33 percent (100 times 1.0 
percent/12) of average annual compensation up to the integration level 
per year of service, and the excess portion of the single sum benefit is 
14.17 percent (100 times 1.7 percent/12) of average annual compensation 
in excess of the integration level per year of service. Each respective 
portion of the single sum option is normalized to a straight life 
annuity commencing at normal retirement age, using 8-percent interest 
and the UP-84 mortality table. After normalization, the base portion of 
the benefit is 1.02 percent of average annual compensation up to the 
integration level, and the excess portion of the benefit is 1.73 percent 
of average annual compensation in excess of the integration level. The 
single sum optional form of benefit satisfies this paragraph (b) because 
the disparity provided in the optional form of benefit does not exceed 
the maximum excess allowance.


[[Page 272]]


    (c) Uniform disparity--(1) In general. The disparity provided under 
a defined benefit excess plan is uniform only if the plan uses the same 
base benefit percentage and the same excess benefit percentage for all 
employees with the same number of years of service. The disparity 
provided under an offset plan is uniform only if the plan uses the same 
gross benefit percentage and the same offset percentage for all 
employees with the same number of years of service. The disparity 
provided under a plan that determines each employee's accrued benefit 
under the fractional accrual method of section 411(b)(1)(C) is uniform 
only if the plan satisfies one of the deemed uniformity rules of 
paragraph (c)(2) (ii) or (iii) of this section.
    (2) Deemed uniformity--(i) In general. The disparity provided under 
a plan does not fail to be uniform for purposes of this paragraph (c) 
merely because the plan contains one or more of the provisions described 
in paragraphs (c)(2) (ii) through (ix) of this section.
    (ii) Use of fractional accrual and disparity for 35 years. The plan 
contains a benefit formula as described in paragraphs (c)(2)(ii) (A) and 
(B) of this section, and the plan determines each employee's accrued 
benefit under the method described in Sec. 1.401(a)(4)-3(b)(4)(i)(B), 
i.e., by multiplying the employee's fractional rule benefit (within the 
meaning of Sec. 1.411(b)-1(b)(3)(ii)(A)) by a fraction, the numerator of 
which is the employee's years of service determined as of the plan year, 
and the denominator of which is the employee's projected years of 
service as of normal retirement age.
    (A) For each year of service at least up to 35, the benefit plan 
formula provides the same base benefit percentage and the same excess 
benefit percentage for all employees in the case of a defined benefit 
excess plan or the same gross benefit percentage and the same offset 
percentage for all employees in the case of an offset plan.
    (B) For each additional year of service, the benefit formula 
provides a uniform percentage of all average annual compensation that is 
no greater than the excess benefit percentage or the gross benefit 
percentage under paragraph (c)(2)(ii)(A) of this section, whichever is 
applicable.
    (iii) Use of fractional accrual and disparity for fewer than 35 
years. The plan contains a benefit formula as described in paragraphs 
(c)(2)(iii) (A) through (C) of this section, and the plan determines 
each employee's accrued benefit under the method described in 
Sec. 1.401(a)(4)-3(b)(4)(i)(B).
    (A) For each year in the employee's initial period of service 
comprising fewer than 35 years, the benefit formula provides the same 
base benefit percentage and the same excess benefit percentage for all 
employees in the case of a defined benefit excess plan or the same gross 
benefit percentage and the same offset percentage for all employees in 
the case of an offset plan.
    (B) For each year of service after the initial period and at least 
up to 35, the benefit formula provides a uniform percentage of all 
average annual compensation, that is equal to the excess benefit 
percentage or the gross benefit percentage under paragraph 
(c)(2)(iii)(A) of this section.
    (C) For each year of service after the period described in paragraph 
(c)(2)(iii)(B) of this section, the benefit formula provides a uniform 
percentage of all average annual compensation that is no greater than 
the excess benefit percentage or the gross benefit percentage under 
paragraph (c)(2)(iii)(A) of this section.
    (iv) Different social security retirement ages. The benefit formula 
uses the same excess benefit percentage or the same gross benefit 
percentage for all employees with the same number of years of service 
and, for employees with social security retirement ages later than age 
65, adjusts the 0.75-percent factor in the maximum excess or offset 
allowance as required under paragraph (e)(1) of this section, by 
increasing the base benefit percentage in the case of a defined benefit 
excess plan, or reducing the offset percentage in the case of an offset 
plan.
    (v) Reduction for integration level. The plan uses an integration 
level or offset level greater than each employee's covered compensation 
and makes individual reductions in the 0.75-percent factor, as permitted 
under paragraph (d)(9)(iii)(B) of this section, by increasing the base 
benefit percentage in the case of a defined benefit excess plan or

[[Page 273]]

reducing the offset percentage in the case of an offset plan.
    (vi) Overall permitted disparity--(A) In general. The benefit 
formula provides that, with respect to each employee's years of service 
after reaching the cumulative permitted disparity limit applicable to 
the employee under Sec. 1.401(l)-5(c), employer-provided benefits are 
determined with respect to the employee's total average annual 
compensation at a rate equal to the nondisparate percentage. For 
purposes of this paragraph (c)(2)(vi), the nondisparate percentage is 
generally the excess benefit percentage or gross benefit percentage 
otherwise applicable under the benefit formula to an employee with the 
same number of years of service.
    (B) Unit credit plans. In the case of a unit credit plan described 
in Sec. 1.401(a)(4)-3(b)(3), if the 411(b)(1)(B) limit percentage is 
less than the nondisparate percentage, the 411(b)(1)(B) limit percentage 
must be substituted for the nondisparate percentage. For this purpose, 
the 411(b)(1)(B) limit percentage is 133\1/3\ percent of the smallest 
base benefit percentage, or 133\1/3\ percent of the smallest difference 
between the gross benefit percentage and the offset percentage, 
whichever is applicable, where the smallest base benefit percentage or 
difference is determined by reference to the benefit formula as applied 
to employees with no more years of service than the employee.
    (C) Fractional accrual plans. In the case of a fractional accrual 
plan described in Sec. 1.401(a)(4)-3(b)(4), the benefit formula must 
provide for the nondisparate percentage with respect to years of service 
after the employee would reach the cumulative permitted disparity limit 
applicable to the employee under Sec. 1.401(l)-5(c) as modified by this 
paragraph (c)(2)(vi)(C). Solely for purposes of this paragraph 
(c)(2)(vi)(C), the employee's annual disparity fractions (and thus the 
year in which the employee would reach the cumulative permitted 
disparity limit) are determined using the disparity provided under the 
benefit formula (rather than the special rule for fractional accrual 
plans in Sec. 1.401(l)-5(b)(8)(v)).
    (vii) Non-FICA employees. The plan provides that, in the case of 
each employee under the plan with respect to whom none of the taxes 
under section 3111(a), section 3221, or section 1401 is required to be 
paid, employer-provided benefits are determined with respect to the 
employee's total average annual compensation at the excess benefit 
percentage or gross benefit percentage applicable to an employee with 
the same number of years of service.
    (viii) Average annual compensation adjustment for offset plan. In 
the case of each employee whose final average compensation exceeds the 
employee's average annual compensation, the plan adjusts the offset 
percentage as required under paragraph (b)(3)(ii) of this section in 
order to satisfy the maximum offset allowance.
    (ix) PIA offsets. In the case of an offset plan, the plan provides 
that the offset applied to each employee's benefit is the lesser of a 
specified percentage of the employee's PIA and an offset that otherwise 
satisfies the requirements of this section (the ``section 401(l) 
overlay''). The specified percentage of PIA must be the same for all 
employees with the same number of years of service. In the case of a 
plan that determines each employee's accrued benefit under the 
fractional accrual method of section 411(b)(1)(C), the specified 
percentage of PIA is deemed to be the same for all employees with the 
same number of years of service if the plan satisfies either of the 
deemed uniformity rules in paragraph (c)(2)(ii) or (iii) of this 
section, substituting ``offset, expressed as a percentage of PIA, per 
year of service'' for the term ``offset percentage'' (in addition to 
satisfying either of those rules with respect to the section 401(l) 
overlay).
    (3)  Examples. The following examples illustrate this paragraph (c). 
Unless otherwise provided, the following facts apply. The plan is 
noncontributory and is the only plan ever maintained by the employer. 
The plan uses a normal retirement age of 65 and contains no provision 
that would require a reduction in the 0.75-percent factor under 
paragraph (b)(2) or (b)(3) of this section. In the case of a defined 
benefit excess plan, the plan uses each employee's covered compensation 
as the integration level; in the case of an offset plan, the plan uses 
each employee's covered compensation as the offset level and

[[Page 274]]

provides that an employee's final average compensation is limited to the 
employee's average annual compensation. Each example discusses the 
benefit formula applicable to an employee who has a social security 
retirement age of 65.

    Example 1. Plan M is a defined benefit excess plan that satisfies 
the 133\1/3\ percent accrual rule of section 411(b)(1)(B). The plan 
provides a normal retirement benefit of 1.0 percent of average annual 
compensation up to the integration level, plus 1.65 percent of average 
annual compensation in excess of the integration level, for each year of 
service up to 25. The plan also provides a benefit of 1.0 percent of all 
average annual compensation for each year of service in excess of 25. 
The disparity provided under the plan is uniform because the plan uses 
the same base and excess benefit percentages for all employees with the 
same number of years of service. If the plan formula were the same 
except that it used a different excess benefit percentage for some of 
the years of service between one and 25, the disparity under the plan 
would continue to be uniform.
    Example 2. Plan O is a defined benefit excess plan that provides a 
normal retirement benefit of 50 percent of average annual compensation 
up to the integration level and 68.75 percent of average annual 
compensation in excess of the integration level, multiplied by a 
fraction, the numerator of which is the employee's service, up to 25 
years, and the denominator of which is 25. The plan determines an 
employee's accrued benefit as described in Sec. 1.401(a)(4)-
3(b)(4)(i)(B). The benefit formula thus provides a base benefit 
percentage of 2 percent (50 percent x \1/25\) and an excess benefit 
percentage of 2.75 percent (68.75 percent x \1/25\) for each of an 
employee's first 25 years of service and no benefit for years of service 
after 25. The disparity provided under the plan is not uniform within 
the meaning of this paragraph (c) because the benefit formula does not 
satisfy either of the uniform disparity rules for fractional accrual 
plans under paragraphs (c)(2) (ii) and (iii) of this section.
    Example 3. Plan P is an offset plan that provides a normal 
retirement benefit of 2 percent of average annual compensation for each 
year of service up to 35, minus 0.75 percent of the final average 
compensation up to the offset level for each year of service up to 25. 
The plan determines an employee's accrued benefit under the method 
described in Sec. 1.401(a)(4)-3(b)(4)(i)(B). Because the formula under 
the plan provides the same gross benefit percentage and offset 
percentage for 25 years of service (fewer than 35) and, for years of 
service after 25 and up to 35, provides a benefit at a uniform rate 
(equal to the gross benefit percentage) of all average annual 
compensation, and the plan accrues the benefit ratably, the disparity 
under the plan is deemed to be uniform under paragraph (c)(2)(iii) of 
this section.
    Example 4. Plan Q is an offset plan that benefits employees with 
social security retirement ages of 65, 66, and 67. For each year of 
service up to 35, the plan provides a normal retirement benefit equal to 
2 percent of average annual compensation, minus an offset based on the 
employee's final average compensation up to the offset level. For 
employees with a social security retirement age of 65, the offset 
percentage is 0.75 percent; for employees with a social security 
retirement age of 66, the offset percentage is 0.70 percent; and for 
employees with a social security retirement age of 67, the offset 
percentage is 0.65 percent. The disparity under the plan is deemed to be 
uniform under paragraph (c)(2)(iv) of this section because the plan uses 
the same gross benefit percentage for all employees and reduces the 
offset percentage for employees with social security retirement ages of 
66 and 67 to comply with the adjustments in the 0.75-percent factor in 
the maximum excess or offset allowance required under paragraph (e)(1) 
of this section. (Because Plan Q effectively provides unreduced benefits 
prior to the social security retirement age for employees with social 
security retirement ages of 66 and 67, the 0.75-percent factor in the 
maximum offset allowance must be reduced to 0.70 percent and 0.65 
percent, respectively.) Alternatively, Plan Q could satisfy this 
paragraph (c) if it provided a uniform offset percentage of 0.65 percent 
for all employees because 0.65 percent is the maximum offset allowance 
under the plan for an employee with a social security retirement age of 
67.
    Example 5. Plan R is an offset plan that provides a normal 
retirement benefit of 2 percent of average annual compensation, minus an 
offset determined as a percentage of total final average compensation, 
for each year of service up to 35. For an employee whose final average 
compensation does not exceed the employee's covered compensation, the 
offset percentage is 0.75 percent. For an employee whose final average 
compensation exceeds the employee's covered compensation, the plan 
reduces the offset percentage, as required by paragraph (d) of this 
section. The reduced offset percentage is determined by comparing the 
employee's final average compensation to the employee's covered 
compensation as permitted under paragraph (d)(9)(iii)(B) of this 
section. The disparity provided under the plan is deemed uniform under 
paragraph (c)(2)(v) of this section because the plan uses the same gross 
benefit percentage for all employees and makes individual reductions in 
the 0.75-percent factor, as permitted under paragraph (d)(9)(iii)(B) of 
this section, by reducing the offset percentage in the case of an 
employee

[[Page 275]]

whose final average compensation exceeds covered compensation.

    (d) Requirements for integration or offset level--(1) In general. 
The integration level under a defined benefit excess plan or the offset 
level under an offset plan must satisfy paragraphs (d)(2), (d)(3), 
(d)(4), (d)(5) or (d)(6) of this section, as modified by paragraph 
(d)(7) of this section in the case of a short plan year. Paragraph 
(d)(8) of this section contains demographic tests that apply to certain 
defined benefit plans. Paragraph (d)(9) of this section explains certain 
reductions required in the 0.75-percent factor under paragraph (b)(2) or 
(b)(3) of this section. Paragraph (d)(10) of this section contains 
examples. If a reduction applies to the 0.75-percent factor under this 
paragraph (d), the reduced factor is used for all purposes in 
determining whether the permitted disparity rules for defined benefit 
plans are satisfied.
    (2) Covered compensation. The requirement of this paragraph (d)(2) 
is satisfied only if the integration or offset level under the plan for 
each employee is the employee's covered compensation.
    (3) Uniform percentage of covered compensation. The requirement of 
this paragraph (d)(3) is satisfied only if--
    (i) The integration or offset level under the plan for each employee 
is a uniform percentage (greater than 100 percent) of each employee's 
covered compensation,
    (ii) In the case of a defined benefit excess plan, the integration 
level does not exceed the taxable wage base in effect for the plan year, 
and, in the case of an offset plan, the offset level does not exceed the 
employee's final average compensation, and
    (iii) The plan adjusts the 0.75-percent factor in the maximum excess 
or offset allowance in accordance with paragraph (d)(9) of this section.
    (4) Single dollar amount. The requirement of this paragraph (d)(4) 
is satisfied only if the integration or offset level under the plan for 
all employees is a single dollar amount (either specified in the plan or 
determined under a formula specified in the plan) that does not exceed 
the greater of $10,000 or one-half of the covered compensation of an 
individual who attains social security retirement age in the calendar 
year in which the plan year begins. In the case of a calendar year in 
which no individual could attain social security retirement age, for 
example, the year 2003, this rule is applied using covered compensation 
of an individual attaining social security retirement age in the 
preceding calendar year.
    (5) Intermediate amount. The requirement of this paragraph (d)(5) is 
satisfied only if--
    (i) The integration or offset level under the plan for all employees 
is a single dollar amount (either specified in the plan or determined 
under a formula specified in the plan) that is greater than the highest 
amount determined under paragraph (d)(4) of this section,
    (ii) In the case of a defined benefit excess plan, the single dollar 
amount does not exceed the taxable wage base in effect for the plan 
year, and, in the case of an offset plan, the single dollar amount does 
not exceed the employee's final average compensation,
    (iii) The plan satisfies the demographic requirements of paragraph 
(d)(8) of this section, and
    (iv) The plan adjusts the 0.75-percent factor in the maximum excess 
or offset allowance in accordance with paragraph (d)(9) of this section.

For purposes of this paragraph (d)(5), an offset level of each 
employee's final average compensation is considered a single dollar 
amount determined under a formula specified in the plan.
    (6) Intermediate amount safe harbor. The requirement of this 
paragraph (d)(6) is satisfied only if--
    (i) The integration or offset level under the plan for all employees 
is a single dollar amount described in paragraph (d)(5) of this section, 
and
    (ii) The 0.75-percent factor in the maximum excess or offset 
allowance under paragraph (b)(2) or (b)(3) of this section is reduced to 
the lesser of the adjusted factor determined under paragraph (d)(9) of 
this section or 80 percent of the otherwise applicable factor under 
paragraph (b)(2) or (b)(3) of this section, determined without regard to 
paragraph (d)(9) of this section.
    (7) Prorated integration level for short plan year. If an 
accumulation plan uses paragraph (2) or (4) of the definition of

[[Page 276]]

plan year compensation under Sec. 1.401(a)(4)-12 (i.e., section 414(s) 
compensation for the plan year or the period of plan participation) and 
has a plan year that comprises fewer than 12 months, the integration or 
offset level under the plan for each employee must be an amount equal to 
the otherwise applicable integration or offset level described in 
paragraph (d)(2), (d)(3), (d)(4), (d)(5), or (d)(6) of this section, 
multiplied by a fraction, the numerator of which is the number of months 
in the plan year and the denominator of which is 12. No adjustment to 
the maximum excess or offset allowance is required as a result of the 
application of this paragraph (d)(7), other than any adjustment already 
required under paragraph (d)(6) or (d)(9) of this section.
    (8) Demographic requirements--(i) In general. A plan that satisfies 
the demographic requirements of paragraphs (d)(8)(ii) and (iii) of this 
section may use an integration level described in paragraph (d)(5) of 
this section.
    (ii) Attained age requirement. The requirement of this paragraph 
(d)(8)(ii) is satisfied only if the average attained age of the 
nonhighly compensated employees in the plan is not greater than the 
greater of--
    (A) Age 50, or
    (B) 5 plus the average attained age of the highly compensated 
employees in the plan. For purposes of this paragraph (d)(8)(ii), 
attained ages are determined as of the beginning of the plan year.
    (iii) Nondiscrimination requirement. The requirement of this 
paragraph (d)(8)(iii) is satisfied only if at least one of the following 
tests in paragraphs (d)(8)(iii) (A) through (D) of this section is 
satisfied.
    (A) Minimum percentage test. This test is satisfied only if more 
than 50 percent of the nonhighly compensated employees in the plan have 
average annual compensation at least equal to 120 percent of the 
integration or offset level.
    (B) Ratio test. This test is satisfied only if the percentage of 
nonhighly compensated nonexcludable employees, who are in the plan and 
who have average annual compensation at least equal to 120 percent of 
the integration or offset level, is at least 70 percent of the 
percentage of highly compensated nonexcludable employees who are 
employees in the plan.
    (C) High dollar amount test. This test is satisfied only if the 
integration or offset level exceeds 150 percent of the covered 
compensation of an individual who attains social security retirement age 
in the calendar year in which the plan year begins. In the case of a 
calendar year in which no individual could attain social security 
retirement age, for example, the year 2003, this rule is applied using 
covered compensation of an individual attaining social security 
retirement age in the preceding calendar year.
    (D) Individual disparity reductions. This test is satisfied only if 
the plan is an offset plan that uses an offset level of each employee's 
final average compensation and makes individual disparity reductions as 
permitted under paragraph (d)(9)(iii)(B) of this section.
    (9) Reduction in the 0.75-percent factor if integration or offset 
level exceeds covered compensation--(i) In general. If the integration 
or offset level specified under the plan is each employee's covered 
compensation as of the plan year, no reduction in the 0.75-percent 
factor in the maximum excess or offset allowance is required for the 
plan year under this paragraph (d)(9). If a plan specifies an 
integration or offset level that exceeds an employee's covered 
compensation, the 0.75-percent factor in the maximum excess or offset 
allowance must be reduced as required in paragraph (d)(9)(ii) or (iii) 
of this section. Paragraph (d)(9)(iv) of this section contains a table 
of the applicable reductions.
    (ii) Uniform percentage of covered compensation. If a plan specifies 
an integration or offset level that is a uniform percentage (in excess 
of 100 percent) of each employee's covered compensation, the 0.75-
percent factor in the maximum excess or offset allowance must be reduced 
in accordance with the table in paragraph (d)(9)(iv) of this section. 
Thus, for example, if a plan specifies an integration or offset level of 
120 percent of each employee's covered compensation, the 0.75-percent 
factor in the maximum excess or offset allowance must be reduced to 0.69 
percent in accordance with the table because the

[[Page 277]]

specified integration or offset level is more than covered compensation 
but not more than 125 percent of covered compensation.
    (iii) Single dollar amount. If a plan specifies an integration or 
offset level of a single dollar amount as permitted under paragraph 
(d)(5) of this section (for example, $30,000), the applicable reduction 
in the maximum excess or offset allowance must be determined under 
paragraph (d)(9)(iii) (A) or (B) of this section, as specified under the 
plan.
    (A) Plan-wide reduction. The applicable reduction in the maximum 
excess or offset allowance under the table in paragraph (d)(9)(iv) of 
this section may be determined by comparing the single dollar amount 
specified in the plan to the covered compensation of an individual 
attaining social security retirement age in the calendar year in which 
the plan year begins. Thus, for example, if a plan specifies a single 
integration or offset level of $30,000 that is uniformly applicable to 
all employees for a plan year and the covered compensation of an 
individual attaining social security retirement age in the calendar year 
in which the plan year begins is $20,000, the 0.75-percent factor in the 
maximum excess or offset allowance must be reduced to 0.60 percent for 
all employees in accordance with the table in paragraph (d)(9)(iv) of 
this section because the specified integration or offset level of 
$30,000 is more than 125 percent of $20,000 but not more than 150 
percent of $20,000. In the case of a calendar year in which no 
individual could attain social security retirement age (for example, 
2003), the comparison is made with covered compensation of an individual 
who attained social security retirement age in the preceding calendar 
year. If an offset plan uses an offset level of each employee's final 
average compensation, the reduction under this paragraph (d)(9)(iii)(A) 
is determined by comparing the highest possible amount of final average 
compensation to the covered compensation of an individual attaining 
social security retirement age in the calendar year in which the plan 
year begins.
    (B) Individual reductions. The applicable reduction in the maximum 
excess or offset allowance under the table in paragraph (d)(9)(iv) of 
this section may be determined by comparing the single dollar amount 
specified in the plan to the covered compensation of each employee under 
the plan. Thus, for example, if a plan specifies a single integration or 
offset level of $30,000 that is uniformly applicable to all employees 
for a plan year, the 0.75-percent factor in the maximum excess or offset 
allowance must be reduced to 0.60 percent for an employee with covered 
compensation of $20,000, but need not be reduced for an employee whose 
covered compensation is $30,000 or greater.
    (iv) Reductions--(A) Table.

                                  Table                                 
------------------------------------------------------------------------
                                          The permitted disparity factor
  If the integration or offset level is                 is              
------------------------------------------------------------------------
100 percent of covered compensation.....  0.75 percent                  
125 percent of covered compensation.....  0.69 percent                  
150 percent of covered compensation.....  0.60 percent                  
175 percent of covered compensation.....  0.53 percent                  
200 percent of covered compensation.....  0.47 percent                  
The taxable wage base or final average    0.42 percent                  
 compensation.                                                          
------------------------------------------------------------------------

    (B) Interpolation. If the integration or offset level used under a 
plan is between the percentages of covered compensation in the table, 
the permitted disparity factor applicable to the plan can be determined 
either by straight-line interpolation between the permitted disparity 
factors in the table or by rounding the integration or offset level up 
to the next highest percentage of covered compensation in the table.
    (10) Examples. The following examples illustrate this paragraph (d). 
Unless otherwise provided, the following facts apply. The plan is 
noncontributory and is the only plan ever maintained by the employer. 
The plan uses a normal retirement age of 65 and contains no provision 
that would require a reduction in the 0.75-percent factor under 
paragraph (b)(2) or (b)(3) of this section. In the case of an offset 
plan, the plan provides that an employee's final average compensation is 
limited to the employee's average annual compensation. Each example 
discusses the benefit formula applicable to an employee who has a social 
security retirement age of 65.

    Example 1. (a) Plan M is a defined benefit excess plan that uses the 
calendar year as its

[[Page 278]]

plan year. For the 1989 plan year, the plan uses an integration level of 
$20,000, which is 118 percent of the 1989 covered compensation of 
$16,968 for an individual reaching social security retirement age in 
1989. The plan may use that integration level without satisfying 
paragraph (d)(8) of this section, provided the adjustment to the 0.75-
percent factor required under paragraph (d)(6) of this section is made. 
That adjustment is the lesser of the factor determined under paragraph 
(d)(9) of this section or 80 percent of the factor otherwise applicable 
under paragraph (b)(2) or (b)(3) of this section.
    (b) The plan determines the factor under paragraph (d)(9) of this 
section by comparing the integration level to the covered compensation 
of an individual attaining social security retirement age in the 
calendar year in which the plan year begins and by rounding the 
integration level up to 125 percent of that covered compensation amount. 
The 0.75-percent factor is therefore replaced by 0.69 percent pursuant 
to the table in paragraph (d)(9) of this section. The 0.69-percent 
factor is 92 percent of the 0.75-percent factor. Because the lesser of 
80 percent and 92 percent is 80 percent, the 0.75-percent factor is 
reduced to 0.6 percent (80 percent of 0.75 percent) under paragraph 
(d)(6) of this section. The 0.6-percent factor applies to benefits 
commencing at age 65 for an employee with a social security retirement 
age of 65. In determining normal retirement benefits for employees with 
social security retirement ages of 66 or 67, the applicable factors for 
benefits commencing at age 65 are, respectively, 0.56 percent (80 
percent of 0.7 percent) and 0.52 percent (80 percent of 0.65 percent).
    (c) The plan could also determine the factor under paragraph (d)(9) 
of this section by comparing the integration level to the covered 
compensation of each employee under the plan, or by straight line 
interpolation between the disparity factors contained in the table in 
paragraph (d)(9) of this section, or both. (Of course, if the plan 
satisfied paragraph (d)(8) of this section, the plan could use the 
factor determined under paragraph (d)(9) of this section.)
    Example 2. (a) Plan N, an accumulation plan, is a defined benefit 
excess plan that, for each year of service up to 35, accrues a normal 
retirement benefit of 1 percent of plan year compensation up to the 
taxable wage base, plus 1.75 percent of plan year compensation above the 
taxable wage base, for each year of service up to 35. An employee's 
total retirement benefit is the sum of the accruals for all years. The 
plan satisfies paragraph (d)(8) of this section.
    (b) Because the plan uses the taxable wage base (an amount above 
covered compensation) as the integration level, it must reduce the 0.75-
percent factor in the maximum excess allowance as required under 
paragraphs (d)(5) and (d)(9) of this section. The reduced factor, if 
determined on a plan-wide basis under paragraph (d)(9)(iii)(A) of this 
section, is 0.42 percent. The plan must therefore reduce the disparity 
in the plan so that it does not exceed 0.42 percent.
    Example 3. (a) For the 1990 plan year, Plan O provides a normal 
retirement benefit of 2 percent of average annual compensation, minus a 
percentage of final average compensation up to $48,000, for each year of 
service up to 35. The plan satisfies paragraph (d)(8) of this section. 
As permitted under paragraph (d)(9) of this section, the plan provides 
that each employee's offset percentage is determined by comparing 
$48,000 to the employee's covered compensation and by rounding the 
result up to the next highest percentage of covered compensation.
    (b) Employee A has a social security retirement age of 66 and 
covered compensation of $40,000. Because the plan provides for 
commencement of Employee A's benefit at age 65, the 0.75-percent factor 
in the maximum offset allowance is reduced to 0.7 percent under 
paragraph (e)(1) of this section (the ``paragraph (e) factor''). In 
addition, because $48,000 is rounded up to 125 percent of Employee A's 
covered compensation, the 0.75-percent factor in the maximum offset 
allowance is reduced to 0.69 percent under paragraph (d)(9) of this 
section (the ``paragraph (d) factor''). The reductions are cumulative 
under paragraph (b)(3)(ii) of this section.
    (c) The cumulative reductions can be made by multiplying the 
paragraph (e) facdtor by the ratio of the paragraph (d) factor to 0.75 
percent or by multiplying the paragraph (d) factor by the ratio of the 
paragraph (e) factor to 0.75 percent. The disparity factor for Employee 
A is therefore 0.64 percent ((0.7 percent  x  0.69 percent/0.75 percent) 
or (0.69 percent x 0.7 percent/0.75 percent)).
    Example 4. Plan P is an offset plan that uses the calendar year as 
the plan year and uses an offset level of each employee's final average 
compensation. Assume that the taxable wage bases for 1990-1992 are the 
following:

  1990--$51,300
  1991--$53.400
  1992--$58,000

Employee B's final average compensation, determined as of the close of 
the 1992 plan year, is the average of Employee B's annual compensation 
for the period 1990-1992. Employee B's annual compensation for each year 
is the following:

  1990--$47,000

[[Page 279]]

  1991--$59,000
  1992--$65,000

For purposes of determining the offset applied to Employee B's employer-
provided benefit under the plan. Employee's B's final average 
compensation as of the close of the 1992 plan year is $52,800 ($47,000 + 
$53,400 + $58,000/3). This is because annual compensation in excess of 
the taxable wage base in effect at the beginning of the year may not be 
taken into account in determining an employee's final average 
compensation or in determining the employee's offset. If the plan 
determines the offset applied to Employee B's benefit by reference to 
compensation in excess of $52,800, the plan fails to satisfy this 
paragraph (d).


    (e) Adjustments to the 0.75-percent factor for benefits commencing 
at ages other than social security retirement age--(1) In general. The 
0.75-percent factor in the maximum excess allowance and in the maximum 
offset allowance applies to a benefit commencing at an employee's social 
security retirement age. Except as provided in paragraph (g) of this 
section, if a benefit payable to an employee under a defined benefit 
excess plan or a defined benefit offset plan commences at an age before 
the employee's social security retirement age (including a benefit 
payable at the normal retirement age under the plan), the 0.75-percent 
factor in the maximum excess allowance or in the maximum offset 
allowance, respectively, is reduced in accordance with paragraph 
(e)(2)(i) of this section. If a benefit payable to an employee under a 
defined benefit excess plan or a defined offset plan commences at an age 
after the employee's social security retirement age, the 0.75-percent 
factor in the maximum excess allowance or in the maximum offset 
allowance, respectively, may be increased in accordance with paragraph 
(e)(2)(ii) of this section. Paragraph (e)(4) of this section provides 
rules on the age at which a benefit commences. See paragraph (f) of this 
section for the requirements applicable to optional forms of benefit.
    (2) Adjustments--(i) Benefits commencing on or after age 55 and 
before social security retirement age. If benefits commence before an 
employee's social security retirement age, the 0.75-percent factor in 
the maximum excess allowance and in the maximum offset allowance must be 
reduced for such early commencement of benefits in accordance with the 
tables set forth in paragraph (e)(3) of this section.
    (ii) Benefits commencing after social security retirement age and on 
or before age 70. If benefits commence after an employee's social 
security retirement age, the 0.75-percent factor in the maximum excess 
allowance and in the maximum offset allowance may be increased for such 
delayed commencement of benefits in accordance with the tables set forth 
in paragraph (e)(3) of this section.
    (iii) Benefits commencing before age 55. If benefits commence before 
the employee attains age 55, the 0.75-percent factor in the maximum 
excess allowance and in the maximum offset allowance is further reduced 
(on a monthly basis to reflect the month in which benefits commence) to 
a factor that is the actuarial equivalent of the 0.75-percent factor, as 
adjusted under the tables in paragraph (e)(3) of this section, 
applicable to a benefit commencing in the month in which the employee 
attains age 55. In determining actuarial equivalence for this purpose, a 
reasonable interest rate must be used. In addition, a reasonable 
mortality table must be used to determine the actuarial present value, 
as defined in Sec. 1.401(a)(4)-12, of the benefits commencing at age 55 
and at the earlier commencement age, and a reasonable mortality table 
may be used to determine the actuarial present value at the earlier 
commencement age of the benefits commencing at age 55. A standard 
interest rate and a standard mortality table, as defined in 
Sec. 1.401(a)(4)-12, are considered reasonable.
    (iv) Benefits commencing after age 70. If benefits commence after 
the employee attains age 70, the 0.75-percent factor in the maximum 
excess allowance and in the maximum offset allowance may be further 
increased (on a monthly basis to reflect the month in which benefits 
commence) to a factor that is the actuarial equivalent of the 0.75-
percent factor (as adjusted in accordance with this paragraph (e)) 
applicable to a benefit commencing in the month in which the employee 
attains age 70. In determining actuarial equivalence for this purpose, a 
reasonable interest rate must be used. In addition, a reasonable

[[Page 280]]

mortality table must be used to determine the actuarial present value, 
as defined in Sec. 1.401(a)(4)-12, of the benefits commencing at age 70 
and at the later commencement age, and a reasonable mortality table may 
be used to determine the value at the later commencement age of the 
benefits commencing at age 70. A standard interest rate and a standard 
mortality table, as defined in Sec. 1.401(a)(4)-12, are considered 
reasonable.
    (3) Tables. Tables I, II, and III provide the adjustments in the 
0.75-percent factor in the maximum excess allowance and in the maximum 
offset allowance applicable to benefits commencing on or after age 55 
and on or before age 70 to an employee who has a social security 
retirement age of 65, 66 or 67. Table IV is a simplified table for a 
plan that uses a single disparity factor of 0.65 percent for all 
employees at age 65. The factors in the following tables are applicable 
to benefits that commence in the month the employee attains the 
specified age. Accordingly, if benefits commence in a month other than 
the month in which the employee attains the specified age, appropriate 
adjustments in the 0.75-percent factor in the maximum excess allowance 
and the maximum offset allowance must be made. For this purpose, 
adjustments may be based on straight-line interpolation from the factors 
in the tables or in accordance with the methods of adjustment specified 
in paragraphs (e)(2)(iii) and (iv) of this section.

                                 Table I                                
                   [Social security retirement age 67]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
70.................................                  1.002              
69.................................                  0.908              
68.................................                  0.825              
67.................................                  0.750              
66.................................                  0.700              
65.................................                  0.650              
64.................................                  0.600              
63.................................                  0.550              
62.................................                  0.500              
61.................................                  0.475              
60.................................                  0.450              
59.................................                  0.425              
58.................................                  0.400              
57.................................                  0.375              
56.................................                  0.344              
55.................................                  0.316              
------------------------------------------------------------------------


                                Table II                                
                   [Social security retirement age 66]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
70.................................                  1.101              
69.................................                  0.998              
68.................................                  0.907              
67.................................                  0.824              
66.................................                  0.750              
65.................................                  0.700              
64.................................                  0.650              
63.................................                  0.600              
62.................................                  0.550              
61.................................                  0.500              
60.................................                  0.475              
59.................................                  0.450              
58.................................                  0.425              
57.................................                  0.400              
56.................................                  0.375              
55.................................                  0.344              
------------------------------------------------------------------------


                                Table III                               
                   [Social security retirement age 65]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
70.................................                  1.209              
69.................................                  1.096              
68.................................                  0.996              
67.................................                  0.905              
66.................................                  0.824              
65.................................                  0.750              
64.................................                  0.700              
63.................................                  0.650              
62.................................                  0.600              
61.................................                  0.550              
60.................................                  0.500              
59.................................                  0.475              
58.................................                  0.450              
57.................................                  0.425              
56.................................                  0.400              
55.................................                  0.375              
------------------------------------------------------------------------


                                Table IV                                
                           [Simplified table]                           
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
70.................................                  1.048              
69.................................                  0.950              
68.................................                  0.863              
67.................................                  0.784              
66.................................                  0.714              
65.................................                  0.650              
64.................................                  0.607              
63.................................                  0.563              
62.................................                  0.520              
61.................................                  0.477              
60.................................                  0.433              
59.................................                  0.412              
58.................................                  0.390              
57.................................                  0.368              
56.................................                  0.347              
55.................................                  0.325              
------------------------------------------------------------------------


[[Page 281]]

    (4) Benefit commencement date--(i) In general. Except as provided in 
paragraph (e)(4)(ii) of this section, a benefit commences for purposes 
of this paragraph (e) on the first day of the period for which the 
benefit is paid under the plan.
    (ii) Qualified social security supplement. If a plan uses a 
qualified social security supplement, as defined in Sec. 1.401(a)(4)-12, 
to provide an aggregate benefit at retirement before social security 
retirement age that is a uniform percentage of average annual 
compensation, benefits will be considered to commence on the first day 
of the period for which the qualified social security supplement is no 
longer payable. In order for this paragraph (e)(4)(ii) to apply, the 
uniform percentage must be equal to the excess benefit percentage in the 
case of an excess plan or the gross benefit percentage in the case of an 
offset plan.
    (5) Examples. The following examples illustrate this paragraph (e). 
Unless otherwise provided, the following facts apply. The plan is 
noncontributory and is the only plan ever maintained by the employer. 
The plan uses a normal retirement age of 65 and contains no provision 
that would require a reduction in the 0.75-percent factor under 
paragraph (b)(2) or (b)(3) of this section. In the case of a defined 
benefit excess plan, the plan uses each employee's covered compensation 
as the integration level; in the case of an offset plan, the plan uses 
each employee's covered compensation as the offset level and provides 
that an employee's final average compensation is limited to the 
employee's average annual compensation. Each example discusses the 
benefit formula applicable to an employee who has a social security 
retirement age of 65.

    Example 1. Plan M is a defined benefit excess plan that, for an 
employee with a social security retirement age of 65, provides a normal 
retirement benefit of 1.25 percent of average annual compensation up to 
the integration level, plus 2.0 percent of average annual compensation 
in excess of the integration level, for each year of service up to 35. 
For an employee with at least 20 years of service, the plan provides a 
benefit commencing at age 55 that is equal to the benefit payable at age 
65. For that employee, the disparity provided under the plan at age 55 
is 0.75 percent (2 percent-1.25 percent). Because this disparity exceeds 
the 0.375 percent factor provided in the table for a benefit payable at 
age 55 to an employee with a social security retirement age of 65, the 
plan fails to satisfy paragraphs (b) and (e) of this section with 
respect to the early retirement benefit.
    Example 2. Assume the same facts as in Example 1, except that the 
base benefit percentage under the plan is 1.75 percent. Thus, the 
disparity provided under the plan at age 55 is 0.25 percent (2 percent-
1.75 percent). Because the disparity does not exceed the 0.375 percent 
factor provided in the table for a benefit payable at age 55 to an 
employee with a social security retirement age of 65, the plan does not 
fail to satisfy paragraphs (b) and (e) of this section with respect to 
the early retirement benefit.
    Example 3. Plan N is an offset plan that, for an employee with a 
social security retirement age of 65, provides a normal retirement 
benefit of 1.75 percent of average annual compensation, minus 0.75 
percent of final average compensation up to the offset level, for each 
year of service up to 35. For an employee with at least 20 years of 
service, the plan provides a benefit commencing at age 55 that is equal 
to the benefit payable at age 65. For that employee, the disparity 
provided under the plan at age 55 is 0.75 percent. Because this 
disparity exceeds the 0.375-percent factor provided in the table for an 
offset applied to a benefit payable at age 55 to an employee with a 
social security retirement age of 65, the plan fails to satisfy 
paragraphs (b) and (e) of this section with respect to the early 
retirement benefit. The plan would not fail to satisfy paragraphs (b) 
and (e) of this section with respect to the early retirement benefit if 
the applicable factor for determining the offset applied to the benefit 
were reduced to 0.375 percent.
    Example 4. Plan O is a defined benefit excess plan that, for an 
employee with a social security retirement age of 65, provides a normal 
retirement benefit of 1.25 percent of average annual compensation up to 
the integration level, plus 2.0 percent of average annual compensation 
in excess of the integration level, for each year of service up to 35. 
The plan provides benefits commencing before normal retirement age with 
the following reductions:

------------------------------------------------------------------------
                                                Percentage of normal    
                    Age                        retirement benefit (%)   
------------------------------------------------------------------------
64........................................  90                          
63........................................  85                          
62........................................  80                          
------------------------------------------------------------------------


[[Page 282]]

Under the plan, a benefit payable at age 64 is equal to 90 percent of 
the normal retirement benefit payable at age 65. Thus, the excess 
benefit percentage under the plan is 1.8 percent, the base benefit 
percentage under the plan is 1.125 percent, and the disparity provided 
under the plan at age 64 is 0.675 percent. Similarly, a benefit payable 
at age 63 is equal to 85 percent of the normal retirement benefit 
payable at age 65. Thus, the excess benefit percentage under the plan is 
1.7 percent, the base benefit percentage under the plan is 1.0625 
percent, and the disparity provided under the plan at age 63 is 0.6375 
percent. Finally, a benefit payable at age 62 is equal to 80 percent of 
the normal retirement benefit payable at age 65. Thus, the excess 
benefit percentage under the plan is 1.6 percent, the base benefit 
percentage under the plan is 1.0 percent, and the disparity provided 
under the plan at age 62 is 0.6 percent. Because the disparities 
provided under the plan at each early commencement age do not exceed the 
factors provided in the applicable table in paragraph (e)(3) of this 
section, the plan does not fail to satisfy paragraphs (b) and (e) of 
this section with respect to the early retirement benefits.
    Example 5. Plan P is a defined benefit excess plan that provides a 
normal retirement benefit of 0.75 percent of average annual compensation 
up to the integration level, plus 1.5 percent of average annual 
compensation in excess of the integration level, for each year of 
service up to 35. The plan does not provide any benefits, other than 
normal retirement benefits, commencing before an employee's social 
security retirement age. Employee A, born in 1947, has a social security 
retirement age of 66. Because the plan provides for the distribution of 
normal retirement benefits before Employee A's social security 
retirement age, the 0.75-percent factor in the maximum excess allowance 
applicable to Employee A must be reduced to 0.70 percent in accordance 
with this paragraph (e). Accordingly, the disparity provided to A under 
the plan exceeds the maximum excess allowance because the excess benefit 
percentage (1.5 percent) exceeds the base benefit percentage (0.75 
percent) by more than the maximum excess allowance of 0.70 percent, as 
reduced in accordance with this paragraph (e).
    Example 6. Assume the same facts as in Example 5, except that the 
plan also provides an early retirement benefit, commencing at age 62, to 
an employee who satisfies the conditions for early retirement specified 
in the plan. The early retirement benefit is based upon the employee's 
accrued benefit at early retirement age and equals the amount that would 
have been paid commencing at the employee's normal retirement age based 
upon the employee's average annual compensation, covered compensation 
and years of service at the date of the employee's early retirement. 
Employee B, who has a social security retirement age of 65, meets the 
conditions for early retirement under the plan and retires at age 62 
with 30 years of service. At the time of early retirement, Employee B 
has average annual compensation of $20,000 and covered compensation of 
$16,000. Under the plan's benefit formula, Employee B has accrued a 
normal retirement benefit, commencing at age 65, of $5,400 ((22.5 
percent  x  $16,000) + (45 percent  x  $4,000)) based on Employee B's 
average annual compensation, covered compensation and years of service 
at early retirement. Accordingly, under the plan's early retirement 
provisions, Employee B is entitled to receive, commencing at early 
retirement, a benefit of $5,400. Because the early retirement benefit is 
a benefit commencing at age 62 (before Employee B's social security 
retirement age), the 0.75-percent factor in the maximum excess allowance 
must be reduced to 0.60 percent in accordance with this paragraph (e). 
Accordingly, the disparity provided to Employee B under the plan at 
early retirement exceeds the maximum excess allowance.
    Example 7. (a) Plan Q is a defined benefit excess plan that provides 
a normal retirement benefit of 1.35 percent of average annual 
compensation up to the integration level, plus 2 percent of average 
annual compensation in excess of the integration level, for each year of 
service up to 35. The plan provides that an employee with 10 years of 
service at age 55 may receive an unreduced retirement benefit. The plan 
also provides that employee with a supplemental benefit of 0.65 percent 
of average annual compensation up to the integration level for each year 
of service up to 35, payable from early retirement until age 65. The 
supplemental benefit is a qualified social security supplement under 
Sec. 1.401(a)(4)-12. The effect of the supplement is to provide an 
employee with a uniform benefit of 2 percent of average annual 
compensation from early retirement until age 65, when the supplement is 
no longer payable. Therefore, for purposes of this paragraph (e), the 
employee's benefit will be considered to commence at age 65.
    (b) Assume that Plan Q is instead an offset plan that provides a 
normal retirement benefit of 2 percent of average annual compensation, 
minus 0.65 percent of final average compensation up to the offset level, 
for each year of service up to 35. The plan provides the same early 
retirement benefit on the same conditions, except that the supplement is 
0.65 percent of an employee's final average compensation up to the 
offset level. An employee at age 55 thus receives a uniform benefit of 2 
percent of average annual compensation until age 65, when the supplement 
is no longer payable. Therefore, for purposes of this paragraph (e), the 
employee's benefit will be considered to commence at age 65.


[[Page 283]]


    (f) Benefits, rights, and features--(1) Defined benefit excess plan. 
In the case of a defined benefit excess plan, each benefit, right, or 
feature provided under the plan with respect to employer-provided 
benefits attributable to average annual compensation above the 
integration level (an ``excess benefit, right, or feature'') must also 
be provided on the same terms with respect to employer-provided benefits 
attributable to average annual compensation up to the integration level 
(a ``base benefit, right, or feature''). Alternatively, an excess 
benefit, right, or feature may be provided on different terms than the 
base benefit, right, or feature, if the terms used to determine the base 
benefit, right, or feature produce a benefit, right, or feature of 
inherently equal or greater value than the benefit, right, or feature 
that would be produced under the terms used to determine the excess 
benefit, right, or feature.
    (2) Offset plan. In the case of an offset plan, each benefit, right, 
or feature provided under the plan with respect to employer-provided 
benefits before application of the offset (a ``gross benefit, right, or 
feature'') must be provided on the same terms as those used to determine 
the offset applied to the gross benefit, right, or feature. 
Alternatively, a gross benefit, right, or feature may be provided on 
different terms from those used to determine the offset applied to the 
gross benefit, right, or feature, if the terms used to determine the 
gross benefit, right, or feature produce a benefit, right, or feature of 
inherently equal or greater value than the benefit, right, or feature 
that would be produced under the terms used to determine the offset 
applied to the gross benefit, right, or feature. In addition, if 
benefits commence before an employee's normal retirement age, the gross 
benefit percentage under the plan must be reduced by a number of 
percentage points that is not less than the number of percentage points 
by which the offset percentage must be reduced, from normal retirement 
age to the age at which benefits commence, under the rules of paragraph 
(e) of this section.
    (3) Examples. The following examples illustrate this paragraph (f). 
Unless otherwise provided, the following facts apply. The plan is 
noncontributory and is the only plan ever maintained by the employer. 
The plan uses a normal retirement age of 65 and contains no provision 
that would require a reduction in the 0.75-percent factor under 
paragraph (b)(2) or (b)(3) of this section. In the case of a defined 
benefit excess plan, the plan uses each employee's covered compensation 
as the integration level; in the case of an offset plan, the plan uses 
each employee's covered compensation as the offset level and provides 
that an employee's final average compensation is limited to the 
employee's average annual compensation. Each example discusses the 
benefit formula applicable to an employee who has a social security 
retirement age of 65. All optional forms of benefit under each plan are 
provided on the same terms.

    Example 1. Plan M is a defined benefit excess plan that provides a 
normal retirement benefit of 1 percent of average annual compensation up 
to the integration level, plus 1.65 percent of average annual 
compensation above the integration level, for each year of service up to 
35. The plan provides an early retirement benefit for any employee who 
terminates employment at or after age 55 with 10 or more years of 
service. In determining an employee's early retirement, the 1.65 percent 
excess benefit percentage is reduced in accordance with the table in 
paragraph (e)(3) of this section for a plan that uses a single disparity 
factor of 0.65 percent for all employees at age 65. However, a larger 
reduction factor is applied to determine the base benefit percentage at 
early retirement. The plan violates this paragraph (f) because the 
excess early retirement benefit is not provided on the same terms as the 
base early retirement benefit, nor do the terms used to determine the 
base early retirement benefit produce an early retirement benefit of 
inherently equal or greater value than the early retirement benefit that 
would be produced under the terms used to determine the excess benefit, 
right, or feature.
    Example 2. The facts are the same as in Example 1 except that the 
plan determines the early retirement benefit by applying the same 
reduction factors under paragraph (e)(3) of this section to the base and 
excess benefit percentages. Furthermore, if an employee terminates 
employment at or after age 55 with 30 or more years of service, the plan 
provides that the base benefit percentage of 1 percent is not reduced. 
Although the excess early retirement benefit is provided

[[Page 284]]

on different terms than the base early retirement benefit, the plan 
satisfies this paragraph (f) because the terms used to determine the 
base early retirement benefit produce an early retirement of inherently 
equal or greater value than the early retirement benefit that would be 
produced under the terms used to determine the excess benefit, right, or 
feature.
    Example 3. Plan N is an offset plan that provides a normal 
retirement benefit of 2 percent of average annual compensation, minus 
0.65 percent of final average compensation up to the offset level, for 
each year of service up to 35. In determining the qualified joint and 
survivor (``QJSA'') form of the normal retirement benefit, the plan 
applies a factor of 80 percent to the gross benefit percentage and a 
factor of 100 percent to the offset percentage. Thus, the QJSA form is 
1.6 percent of average annual compensation, minus 0.65 percent of final 
average compensation up to the offset level, for each year of service up 
to 35. The plan violates this paragraph (f) because the gross QJSA form 
is not provided on the same terms as the terms used to determine the 
offset applied to the QJSA, nor does it produce a QJSA benefit that is 
of inherently equal or greater value than the QJSA benefit that would be 
produced under the terms used to determine the offset under the plan.
    Example 4. Plan O is a defined benefit excess plan that provides a 
normal retirement benefit of 1 percent of average annual compensation up 
to the integration level, plus 1.65 percent of average annual 
compensation above the integration level, for each year of service up to 
35. The plan also provides a single sum optional form of benefit 
determined by applying a single interest rate and mortality assumption 
to the entire normal retirement benefit. The plan satisfies this 
paragraph (f) because the excess optional form is provided on the same 
terms as the base optional form. The plan would also satisfy this 
paragraph (f) if it used a lower interest rate to determine the base 
optional form than used to determine the excess optional form because 
the lower interest rate would produce an optional form of inherently 
equal or greater value than the optional form produced by using the same 
interest rate.
    Example 5. Plan R is a defined benefit excess plan that provides a 
normal retirement benefit of 1 percent of average annual compensation up 
to the integration level, plus 1.65 percent of average annual 
compensation above the integration level, for each year of service up to 
35. If an employee continues to work after normal retirement age, the 
plan provides that the employee receives credit for additional years of 
service up to the service limit of 35. The plan also provides that the 
disparity provided under the plan will increase as permitted under 
paragraph (e) of this section for benefits commencing after social 
security retirement age. However, the plan does not provide an increase 
in the base benefit percentage to reflect the fact that the employee has 
delayed commencement of benefits past normal retirement age. Thus, for 
example, for an employee at age 68, the plan provides a benefit of 1 
percent of average annual compensation up to the integration level, plus 
1.86 percent of average annual compensation above the integration level, 
for each year of service up to 35. The plan violates this paragraph (f) 
because the excess benefit provided for an employee after normal 
retirement age is not provided on the same terms as the base benefit, 
nor do the terms used to determine the base benefit produce a benefit of 
inherently equal or greater value than the benefit that would be 
produced under the terms used to determine the excess benefit.
    Example 6. Plan Q is an offset plan that provides a normal 
retirement benefit of 2 percent of average annual compensation, minus 
0.65 percent of final average compensation up to the offset level, for 
each year of service up to 35. In accordance with paragraph (e) of this 
section, the plan reduces the offset percentage under the plan for early 
retirement and provides a benefit at age 55 of 2 percent of average 
annual compensation, minus 0.325 percent of final average compensation 
up to the offset level, for each year of service up to 35. However, the 
early retirement benefit does not meet this paragraph (f) because an 
employee's gross benefit percentage is not reduced for early retirement.
    Example 7. The facts are the same as in Example 6 except that the 
plan reduces the gross benefit percentage for early retirement at age 55 
to 1.675 percent. Because the gross benefit percentage is reduced by 
0.325 percent (from 2.0 percent to 1.675 percent), the same percentage 
point reduction made in the offset percentage (from 0.65 percent to 
0.325 percent), the early retirement benefit meets this paragraph (f).

    (g) No reductions in 0.75-percent factor for ancillary benefits. For 
purposes of applying the maximum excess allowance or the maximum offset 
allowance under paragraph (b)(2) or (3) of this section, no reduction is 
made to the 0.75-percent factor merely because the plan provides 
disparity in qualified disability benefits (within the meaning of 
section 411(a)(9)) or preretirement death benefits and the relevant 
benefits are payable before an employee's social security retirement 
age.
    (h) Benefits attributable to employee contributions not taken into 
account. Benefits attributable to employee contributions to a defined 
benefit plan are

[[Page 285]]

not taken into account in determining whether the disparity provided 
under a defined benefit excess plan or an offset plan exceeds the 
maximum permitted disparity described in paragraph (b) of this section. 
See Sec. 1.401(a)(4)-6(b) for methods of determining the employer-
provided benefit under a plan that includes employee contributions not 
allocated to separate accounts (i.e., a contributory DB plan), including 
Sec. 1.401(a)(4)-6(b)(2)(iii)(B) for adjustments to the base and excess 
benefit percentages or the gross benefit percentage under a section 
401(l) plan. If, after adjustment, the employee's base benefit 
percentage or gross benefit percentage (whichever is applicable) is less 
than zero, such percentage is deemed to be zero for purposes of the 
maximum excess allowance or maximum offset allowance under paragraph 
(b)(2) or (3) of this section.
    (i) Multiple integration levels [Reserved]
    (j) Additional rules. The Commissioner may, in revenue rulings, 
notices or other documents of general applicability, prescribe 
additional rules as may be necessary or appropriate to carry out the 
purposes of this section, including updated tables under paragraphs (d) 
and (e) of this section providing for reductions in the 0.75-percent 
factor in the maximum excess allowance and in the maximum offset 
allowance and rules in paragraph (h) of this section for determining the 
portion of an employee's benefit attributable to employee contributions.

[T.D. 8359, 56 FR 47622, Sept. 19, 1991; 57 FR 10818, 10819, 10951, 
10952, Mar. 31, 1992, as amended by T.D. 8486, 58 FR 46832, Sept. 3, 
1993]



Sec. 1.401(l)-4  Special rules for railroad plans.

    (a) In general. Section 401(l)(6) provides that, in the case of a 
plan maintained by a railroad employer that covers employees who are 
entitled to benefits under the Railroad Retirement Act of 1974, in 
determining whether such a plan satisfies section 401(l), rules similar 
to the rules under section 401(l) apply and such rules take into account 
the employer-derived portion of tier 2 and supplemental annuity benefits 
provided under the railroad retirement system. In general, for purposes 
of determining whether a defined contribution plan or a defined benefit 
plan maintained by a railroad employer and covering employees described 
in te preceding sentence, satisfies section 401(l), the employer-derived 
portion of an employee's tier 2 benefits and supplementary annuity 
benefits under the Railroad Retirement Act of 1974 are treated as though 
such benefits were provided by the railroad employer under a qualified 
plan. Paragraph (b) of this section contains rules for defined 
contribution plans. Paragraph (c) of this section contains rules for 
defined benefit excess plans. Paragraph (d) of this section contains 
rules for offset plans. Paragraph (e) of this section contains 
definitions and additional rules of application.
    (b) Defined contribution plans--(1) In general. A defined 
contribution plan maintained by a railroad employer satisfies section 
401(l) and Sec. 1.401(l)-2 for a plan year only if the plan satisfies 
paragraph (b)(2) or (b)(3) of this section for the plan year.
    (2) Single integration level method--(i) In general. A plan 
satisfies this paragraph (b)(2) if--
    (A) The plan specifies a single integration level for all employees 
that does not exceed the railroad retirement taxable wage base in effect 
as of the beginning of the plan year,
    (B) The plan uses the same base contribution percentage and the same 
excess contribution percentage for all employees, and
    (C) The excess contribution percentage does not exceed the sum of 
11.4 percentage points and the base contribution percentage.
    (ii) Definitions. The following definitions govern for purposes of 
this paragraph (b)(2).
    (A) Base contribution percentage means the rate at which employer 
contributions are allocated to the account of an employee under the plan 
with respect to the employee's plan year compensation at or below the 
railroad retirement taxable wage base (expressed as a percentage of such 
plan year compensation).
    (B) Excess contribution percentage means the rate at which employer 
contributions are allocated to the account

[[Page 286]]

of an employee under the plan with respect to the employee's plan year 
compensation above the railroad retirement taxable wage base (expressed 
as a percentage of such plan year compensation).
    (3) Two integration level method--(i) In general. A plan satisfies 
this paragraph (b)(3) if--
    (A) The plan specifies two integration levels for all employees, 
equal to the railroad retirement taxable wage base in effect as of the 
beginning of the plan year and the taxable wage base in effect as of the 
beginning of the plan year, and
    (B) The plan satisfies paragraphs (b)(3) (ii) and (iii) of this 
section.
    (ii) Total disparity requirement. A plan satisfies this paragraph 
(b)(3)(ii) if--
    (A) The plan uses the same base contribution percentage and the same 
excess contribution percentage for all employees, and
    (B) The excess contribution percentage does not exceed the sum of 
11.4 percentage points and the base contribution percentage.
    (iii) Intermediate disparity requirement. A plan satisfies this 
paragraph (b)(3)(iii) if--
    (A) The plan uses the same base contribution percentage and the same 
intermediate contribution percentage for all employees, and
    (B) The intermediate contribution percentage does not exceed the sum 
of 5.7 percentage points and the base contribution percentage.
    (iv) Definitions. The following definitions govern for purposes of 
this paragraph (b)(3).
    (A) Base contribution percentage means the rate at which employer 
contributions are allocated to the account of an employee under the plan 
with respect to the employee's plan year compensation at or below the 
railroad retirement taxable wage base (expressed as a percentage of such 
plan year compensation).
    (B) Intermediate contribution percentage means the rate at which 
employer contributions are allocated to the account of an employee under 
the plan with respect to the employee's plan year compensation between 
the railroad retirement taxable wage base and the taxable wage base 
(expressed as a percentage of such plan year compensation).
    (C) Excess contribution percentage means the rate at which employer 
contributions are allocated to the account of an employee under the plan 
with respect to the employee's plan year compensation above the taxable 
wage base (expressed as a percentage of such plan year compensation).
    (c) Defined benefit excess plans--(1) In general. A defined benefit 
excess plan maintained by a railroad employer satisfies section 401(l) 
and Sec. 1.401(l)-3 for a plan year only if the plan satisfies paragraph 
(c)(2) or (c)(3) of this section for the plan year.
    (2) Single integration level method--(i) In general. A plan 
satisfies this paragraph (c)(2) if--
    (A) The plan specifies a single integration level for all employees 
that does not exceed railroad retirement covered compensation,
    (B) The plan uses the same base benefit percentage and the same 
excess benefit percentage for all employees, and
    (C) The excess benefit percentage does not exceed the lesser of--
    (1) Two times the sum of 0.56 percent and the base benefit 
percentage, or
    (2) 0.56 percent plus the base benefit percentage plus 0.75 percent.
    (ii) Definitions. The following definitions govern for purposes of 
this paragraph (c)(2).
    (A) Base benefit percentage means the rate at which employer-
provided benefits are determined under the plan with respect to an 
employee's average annual compensation at or below the employee's 
railroad retirement covered compensation (expressed as a percentage of 
such average annual compensation).
    (B) Excess benefit percentage means the rate at which employer-
provided benefits are determined under the plan with respect to an 
employee's average annual compensation above the employee's railroad 
retirement covered compensation (expressed as a percentage of such 
average annual compensation).
    (3) Two integration level method--(i) In general. A plan satisfies 
this paragraph (c)(3) for a plan year if--
    (A) The plan specifies two integration levels for all employees, 
equal to

[[Page 287]]

each employee's railroad retirement covered compensation and each 
employee's covered compensation, and
    (B) The plan satisfies paragraph (c)(3) (ii) and (iii) of this 
section.
    (ii) Employee with lower covered compensation. A plan satisfies this 
paragraph (c)(3)(ii) if, with respect to each employee whose lower 
integration level is the employee's covered compensation--
    (A) The plan uses the same base benefit percentage and the same 
intermediate benefit percentage for all employees,
    (B) The intermediate benefit percentage does not exceed the base 
benefit percentage by more than the lesser of 0.75 percent or the base 
benefit percentage,
    (C) The plan uses the same intermediate benefit percentage and the 
same excess benefit percentage for all employees, and
    (D) The excess benefit percentage does not exceed the intermediate 
benefit percentage by more than 0.56 percent.
    (iii) Employee with lower railroad retirement covered compensation. 
A plan satisfies this paragraph (c)(3)(iii) if, with respect to each 
employee whose lower integration level is the employee's railroad 
retirement covered compensation--
    (A) The plan uses the same base benefit percentage and the same 
excess benefit percentage for all employees,
    (B) The excess benefit percentage does not exceed the lesser of--
    (1) Two times the sum of 0.56 percent and the base benefit 
percentage, or
    (2) The sum of 0.56 percent plus the base benefit percentage plus 
0.75 percent,
    (C) The plan uses the same the base benefit percentage and the same 
intermediate benefit percentage for all employees, and
    (D) The intermediate benefit percentage does not exceed the sum of 
0.56 percent plus the base benefit percentage.
    (iv) Definitions. The following definitions govern for purposes of 
this paragraph (c)(3).
    (A) Base benefit percentage means the rate at which employer-
provided benefits are determined under the plan with respect to an 
employee's average annual compensation at or below the lower integration 
level specified in the plan (expressed as a percentage of such average 
annual compensation).
    (B) Intermediate benefit percentage means the rate at which 
employer-provided benefits are determined under the plan with respect to 
an employee's average annual compensation between the lower and higher 
integration levels specified in the plan (expressed as a percentage of 
such average annual compensation).
    (C) Excess benefit percentage means the rate at which employer-
provided benefits are determined under the plan with respect to an 
employee's average annual compensation above the higher integration 
level specified in the plan (expressed as a percentage of such average 
annual compensation).
    (d) Offset plans--(1) In general. An offset plan maintained by a 
railroad employer satisfies section 401(l) and Sec. 1.401(l)-3 for a 
plan year only if--
    (i) The plan satisfies Sec. 1.401(l)-3 for the plan year without 
regard to the offset for the employer-derived portion of tier 2 and 
supplementary annuity benefits provided under the railroad retirement 
system, and
    (ii) The offset for the employer-derived portion of tier 2 and 
supplementary annuity benefits provided under the railroad retirement 
system does not exceed the maximum tier 2 and supplementary annuity 
offset allowance.
    (2) Maximum tier 2 and supplementary annuity offset allowance. For 
purposes of paragraph (d)(1) of this section, the maximum tier 2 and 
supplementary annuity offset allowance for a plan year is equal to 0.56 
percent of the employee's railroad retirement covered compensation for 
the plan year.
    (e) Additional rules--(1) Definitions. The following definitions 
govern for purposes of this section.
    (i) Railroad retirement taxable wage base means the applicable base, 
as determined under section 3231(e)(2)B)(ii), for purposes of the tax 
under section 3221(b) (the tier 2 tax).
    (ii) Railroad retirement covered compensation for an employee means 
12 multiplied by the average of the 60 highest monthly railroad 
retirement

[[Page 288]]

taxable wage bases in effect for the employee's period of employment. 
The monthly railroad retirement taxable wage base is determined by 
dividing the railroad retirement taxable wage base for the calendar year 
in which the month occurs by 12. An employee's railroad retirement 
covered compensation for the plan year is determined as of the beginning 
of the plan year. A plan must provide that an employee's railroad 
retirement covered compensation is automatically adjusted for each plan 
year. See Sec. 1.401(l)-1(b) for rules relating to prohibited decreases 
in an employee's accrued benefit within the meaning of section 411(d)(6) 
or section 411(b)(1)(G).
    (2) Adjustments to 0.75-percent factor. The 0.75-percent factor in 
the maximum excess allowance and in the maximum offset allowance is 
subject to the reductions prescribed in Sec. 1.401(l)-3 (d) and (e), 
except that in the case of an employee with at least 30 years of service 
with a railroad employer, the following tables are substituted for 
Tables I through III contained in Sec. 1.401(l)-3(e)(3).

                                 Table I                                
                   [Social security retirement age 67]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
66.................................                  0.750              
65.................................                  0.750              
64.................................                  0.750              
63.................................                  0.750              
62.................................                  0.750              
61.................................                  0.525              
60.................................                  0.525              
59.................................                  0.508              
58.................................                  0.490              
57.................................                  0.472              
56.................................                  0.433              
55.................................                  0.398              
------------------------------------------------------------------------


                                Table II                                
                   [Social security retirement age 66]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
65.................................                  0.750              
64.................................                  0.750              
63.................................                  0.750              
62.................................                  0.750              
61.................................                  0.563              
60.................................                  0.563              
59.................................                  0.544              
58.................................                  0.525              
57.................................                  0.506              
56.................................                  0.488              
55.................................                  0.447              
------------------------------------------------------------------------


                                Table III                               
                   [Social security retirement age 65]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
64.................................                  0.750              
63.................................                  0.750              
62.................................                  0.750              
61.................................                  0.600              
60.................................                  0.600              
59.................................                  0.580              
58.................................                  0.560              
57.................................                  0.540              
56.................................                  0.520              
55.................................                  0.500              
------------------------------------------------------------------------

    (3) Adjustments to 0.56-percent factor. The 0.56-percent factor for 
defined benefit excess plans and offset plans under paragraphs (c) and 
(d) of this section respectively is subject to the reductions prescribed 
in Sec. 1.401(l)-3 (d) and (e), except that, for purposes of applying 
this paragraph (e)(3)--
    (i) ``Railroad retirement covered compensation'' is substituted for 
``covered compensation'' in Sec. 1.401(l)-3(d),
    (ii) The reductions under Sec. 1.401(l)-3(d) are made by multiplying 
the 0.56-percent factor by the ratio of the applicable factor from the 
table in Sec. 1.401(l)-(3)(d)(9)(iv)(A) to 0.75, and
    (iii) The following tables are substituted for Tables I through III 
set forth in Sec. 1.401(l)-3(e)(3).
    (A) Tables applicable to 0.56% factor for employees covered by tier 
2 of railroad retirement with 30 or more years of railroad service.

                                 Table I                                
                   [Social security retirement age 67]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
66.................................                  0.560              
65.................................                  0.560              
64.................................                  0.560              
63.................................                  0.560              
62.................................                  0.560              
61.................................                  0.560              

[[Page 289]]

                                                                        
60.................................                  0.560              
59.................................                  0.541              
58.................................                  0.523              
57.................................                  0.504              
56.................................                  0.462              
55.................................                  0.425              
------------------------------------------------------------------------


                                Table II                                
                   [Social security retirement age 66]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
65.................................                  0.560              
64.................................                  0.560              
63.................................                  0.560              
62.................................                  0.560              
61.................................                  0.560              
60.................................                  0.560              
59.................................                  0.541              
58.................................                  0.523              
57.................................                  0.504              
56.................................                  0.485              
55.................................                  0.445              
------------------------------------------------------------------------


                                Table III                               
                   [Social security retirement age 65]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
64.................................                  0.560              
63.................................                  0.560              
62.................................                  0.560              
61.................................                  0.560              
60.................................                  0.560              
59.................................                  0.541              
58.................................                  0.523              
57.................................                  0.504              
56.................................                  0.485              
55.................................                  0.467              
------------------------------------------------------------------------

    (B) Tables applicable to 0.56% factor for employees covered by tier 
2 of railroad retirement with less than 30 years of railroad service.

                                 Table I                                
                   [Social security retirement age 67]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
66.................................                  0.523              
65.................................                  0.485              
64.................................                  0.448              
63.................................                  0.420              
62.................................                  0.392              
61.................................                  0.379              
60.................................                  0.366              
59.................................                  0.353              
58.................................                  0.340              
57.................................                  0.327              
56.................................                  0.300              
55.................................                  0.275              
------------------------------------------------------------------------


                                Table II                                
                   [Social security retirement age 66]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
65.................................                  0.523              
64.................................                  0.485              
63.................................                  0.448              
62.................................                  0.420              
61.................................                  0.392              
60.................................                  0.378              
59.................................                  0.364              
58.................................                  0.350              
57.................................                  0.336              
56.................................                  0.322              
55.................................                  0.295              
------------------------------------------------------------------------


                                Table III                               
                   [Social security retirement age 65]                  
------------------------------------------------------------------------
                                       Annual factor in maximum excess  
   Age at which benefits commence        allowance and maximum offset   
                                             allowance (percent)        
------------------------------------------------------------------------
64.................................                  0.523              
63.................................                  0.485              
62.................................                  0.448              
61.................................                  0.418              
60.................................                  0.388              
59.................................                  0.373              
58.................................                  0.358              
57.................................                  0.343              
56.................................                  0.329              
55.................................                  0.314              
------------------------------------------------------------------------

    (4) Overall permitted disparity. The overall permitted disparity 
rules of Sec. 1.401(l)-5 apply to employees who benefit under a plan 
maintained by a railroad employer.

[T.D. 8359, 56 FR 47632, Sept. 19, 1991; 57 FR 10819, 10952, Mar. 31, 
1992]



Sec. 1.401(l)-5  Overall permitted disparity limits.

    (a) Introduction--(1) In general. The maximum excess allowance and 
maximum offset allowance limit the disparity that can be provided under 
a plan for a plan year. The overall permitted

[[Page 290]]

disparity rules apply to limit the disparity provided for a plan year if 
an employee benefits under more than one plan maintained by the employer 
(the ``annual overall permitted disparity limit'') and to limit the 
disparity provided for an employee's total years of service, either in a 
single plan or in more than one plan of the employer (the ``cumulative 
overall permitted disparity limit''). The overall permitted disparity 
rules take into account the disparity provided under a section 401(l) 
plan and the permitted disparity imputed under a plan that satisfies 
section 401(a)(4) by relying on Sec. 1.401(a)(4)-7. A plan that is not a 
section 401(l) plan is generally deemed to impute permitted disparity 
under Sec. 1.401(a)(4)-7 unless established otherwise. Paragraph (b) of 
this section provides rules on the annual overall permitted disparity 
limit. Paragraph (c) of this section provides rules on the cumulative 
overall permitted disparity limit.
    (2) Plan requirements. In order to satisfy section 401(l), a plan 
must provide that the overall permitted disparity limits may not be 
exceeded and must specify how employer-provided contributions or 
benefits under the plan are adjusted, if necessary, to satisfy the 
overall permitted disparity limits. Any adjustments made to satisfy the 
overall permitted disparity limits must be made in a uniform manner for 
all employees.
    (3) Plans taken into account. For purposes of this section, all 
plans of the employer are taken into account. In addition, all plans of 
any other employer are taken into account for all periods of service 
with the other employer for which the employee receives credit for 
purposes of benefit accrual under any plan of the current employer.
    (b) Annual overall permitted disparity limit--(1) In general. If, in 
the plan year, an employee benefits under more than one plan, the annual 
overall permitted disparity limit is satisfied only if the employee's 
total annual disparity fraction, as defined in paragraph (b)(2) of this 
section, does not exceed one. Paragraphs (b)(3) through (b)(8) of this 
section explain the determination of an employee's annual disparity 
fractions. Paragraph (b)(9) of this section provides examples.
    (2) Total annual disparity fraction. An employee's total annual 
disparity fraction is the sum of the employee's annual disparity 
fractions, as defined in paragraphs (b)(3) through (b)(7) of this 
section. An employee's total annual disparity fraction is determined as 
of the end of the current plan year, based on the employee's annual 
disparity fractions under all plans with plan years ending in the 
current plan year.
    (3) Annual defined contribution plan disparity fraction. For a plan 
year, the annual defined contribution plan disparity fraction for an 
employee benefiting under a defined contribution plan that is a section 
401(l) plan is a fraction--
    (i) The numerator of which is the disparity provided under the plan 
for the plan year, and
    (ii) The denominator of which is the maximum excess allowance under 
Sec. 1.401(l)-2(b)(2) for the plan year.
    (4) Annual defined benefit excess plan disparity fraction. For a 
plan year, the annual defined benefit excess plan disparity fraction for 
an employee benefiting under a defined benefit excess plan that is a 
section 401(l) plan is a fraction--
    (i) The numerator of which is the disparity provided under the plan 
for the plan year, and
    (ii) The denominator of which is the maximum excess allowance under 
Sec. 1.401(l)-3(b)(2) for the plan year.
    (5) Annual offset plan disparity fraction--(i) In general. For a 
plan year, the annual offset plan disparity fraction for an employee 
benefiting under an offset plan that is a section 401(l) plan is a 
fraction--
    (A) The numerator of which is the disparity provided under the plan 
for the plan year; and
    (B) The denominator of which is the maximum offset allowance under 
Sec. 1.401(l)-3(b)(3) for the plan year.
    (ii) PIA offset plans. In the case of an offset plan that applies an 
offset of a specified percentage of the employee's PIA, as permitted 
under Sec. 1.401(l)-3(c)(2)(ix), the numerator of the annual offset plan 
disparity fraction is the offset percentage used in the section 401(l) 
overlay under the plan.

[[Page 291]]

    (6) Annual imputed disparity fraction. For a plan year, the annual 
imputed disparity fraction for an employee benefiting under a plan that 
imputes permitted disparity with respect to the employee under 
Sec. 1.401(a)(4)-7 is one.
    (7) Annual nondisparate fraction. For a plan year, the annual 
nondisparate fraction for an employee benefiting under a plan that 
neither is a section 401(l) plan nor imputes permitted disparity under 
Sec. 1.401(a)(4)-7 is zero.
    (8) Determination of fraction--(i) General rule. A separate annual 
disparity fraction is generally determined for each plan under which the 
employee benefits. Thus, for example, if two plans are aggregated and 
treated as a single plan for purposes of section 401(a)(4), a single 
annual disparity fraction applies to the aggregated plan.
    (ii) Multiple formulas. If a plan provides an allocation or benefit 
equal to the sum of two or more formulas, each formula is considered a 
separate plan for purposes of this section. If a plan provides an 
allocation or benefit equal to the greater of two or more formulas, an 
annual disparity fraction is calculated for the employee under each 
formula and the largest of the fractions is the employee's annual 
disparity fraction under the plan.
    (iii) Offset arrangements--(A) In general. If an employee benefits 
under two plans taken into account under paragraph (a)(3) of this 
section as described in paragraph (b)(8)(iii)(B) or (C) of this section, 
the employee's annual disparity fraction under both plans is the larger 
of the annual disparity fractions calculated separately under each plan.
    (B) Defined benefit plans. The employee's employer-provided accrued 
benefit under a defined benefit plan is offset by the employee's total 
employer-provided accrued benefit under another defined benefit plan or 
by the actuarial equivalent (as defined in Sec. 1.401(a)(4)-12) of the 
employee's total account balance under a defined contribution plan that 
is attributable to employer contributions.
    (C) Defined contribution plans. The amount allocated to the 
employee's account under a defined contribution plan is offset by the 
total amount allocated to the employee's account under another defined 
contribution plan.
    (iv) Applicable percentages. The disparity provided under a plan is 
determined on the base and excess percentages under an excess plan and 
the offset percentage under an offset plan, regardless of whether the 
employee's plan year or average annual compensation exceeds the 
integration or offset level under the plan.
    (v) Fractional accrual plans. If a section 401(l) plan determines 
each employee's accrued benefit under the fractional accrual method of 
section 411(b)(1)(C), the numerator of an employee's annual disparity 
fraction is based on the disparity provided in the benefit accrued for 
the employee for the plan year.
    (9) Examples. The following examples illustrate this paragraph (b). 
Except as otherwise provided, each plan is a section 401(l) plan.

    Example 1. (a) Employee A benefits for the plan year under a defined 
contribution excess plan, Plan X, and a defined benefit excess plan, 
Plan Y, of the employer. Plans X and Y have the same plan year. Employee 
A benefits under no other plan of the employer for the plan year of any 
other plan ending in the plan year of Plans X and Y. Plan X provides a 
base contribution percentage of 5 percent and an excess contribution 
percentage of 7 percent, thus providing Employee A with disparity of 2 
percent for the plan year. The maximum excess allowance for the plan 
year under Plan X is 5 percent. Plan Y provides a base benefit 
percentage of 1 percent and an excess benefit percentage of 1.35 
percent, thus providing Employee A with disparity of 0.35 percent for 
the plan year. The maximum excess allowance for the plan year under Plan 
Y is 0.75 percent.
    (b) Employee A's annual defined contribution plan disparity fraction 
under Plan X for the plan year is 0.4 (2 percent divided by 5 percent). 
Employee A's annual defined benefit excess plan disparity fraction under 
Plan Y for the plan year is 0.47 (0.35 percent divided by 0.75 percent). 
Employee A's total annual disparity fraction is the sum of 0.4 and 0.47 
or 0.87. Because Employee A's total annual disparity fraction does not 
exceed one, the plans satisfy the annual overall permitted disparity 
limit with respect to Employee A for the plan year.
    Example 2. (a) The facts are the same as in Example 1, except that 
Plan Y is a defined contribution plan, rather than a defined benefit 
plan. Plan X and Plan Y cover the same employees and are identical in 
their terms except for the base and excess contribution percentages 
provided under the plans. Plan Y provides a base contribution percentage 
of 3

[[Page 292]]

percent and an excess contribution percentage of 6 percent, thus 
providing Employee A with disparity of 3 percent for the plan year. The 
maximum excess allowance for the plan year under Plan Y is 3 percent.
    (b) Employee A's annual defined contribution plan disparity fraction 
under Plan X for the plan year is 0.4 (2 percent divided by 5 percent). 
Employee A's annual defined contribution plan disparity fraction under 
Plan Y for the plan year is 1 (3 percent divided by 3 percent). Because 
Employee A's total annual disparity fraction (the sum of 0.4 and 1 or 
1.4) exceeds one, the plans do not satisfy the annual overall permitted 
disparity requirements with respect to Employee A for the plan year.
    (c) Plan X and Plan Y are aggregated for purposes of section 
401(a)(4) and form a single section 401(l) plan. Under the plan, the 
base contribution percentage is 8 percent (5 percent plus 3 percent), 
and the excess contribution percentage is 13 percent (7 percent plus 6 
percent). A single annual defined contribution plan disparity fraction 
is determined for Employee A for the plan year, the numerator of which 
is the disparity of 5 percent provided under the plan (13 percent minus 
8 percent), and the denominator of which is 5.7 percent, the maximum 
excess allowance that applies to the plan. Because Employee A's only 
annual disparity fraction of 0.88 (5 percent divided by 5.7 percent) 
does not exceed one, Employee A's total annual disparity fraction also 
does not exceed one. The plan thus satisfies the annual overall 
permitted disparity limit with respect to Employee A for the plan year.
    Example 3. Assume the same facts as in Example 2, except that Plan X 
and Plan Y use different integration levels. Therefore, when Plan X and 
Plan Y are aggregated to form a single plan for purposes of section 
401(a)(4), the single plan does not satisfy section 401(l). In applying 
the general test of Sec. 1.401(a)(4)-2(c), the plan imputes disparity 
under Sec. 1.401(a)(4)-7. Employee A's only annual disparity fraction is 
the annual imputed disparity fraction of one. Employee A's total annual 
disparity fraction is also one, and the plan satisfies the annual 
overall permitted disparity limit with respect to Employee A for the 
plan year.
    Example 4. (a) Employee B participates in two plans: Plan M, which 
is a section 401(l) plan, and Plan N, which is subject to the general 
test under Sec. 1.401(a)(4)-3(c). Plan M provides that the disparity 
provided an employee for the plan year will be reduced to the extent 
necessary to satisfy the annual overall permitted disparity limits. The 
employer wishes to impute permitted disparity under Sec. 1.401(a)(4)-7 
in order for Plan N to satisfy section 401(a)(4). Employee B's imputed 
disparity fraction under Plan N is therefore one, and Plan M provides no 
disparity for Employee B for the plan year. As a result, Plan M provides 
disparity that is neither uniform nor deemed uniform under 
Sec. 1.401(l)-3(c); Plan M therefore does not satisfy section 401(l).
    (b) Assume instead that Plan M provides that the annual overall 
permitted disparity limits must be satisfied without reducing the 
disparity provided for an employee under Plan M, thus requiring a 
reduction in the employee's annual disparity fraction under another 
plan. In that case, the disparity provided under Plan M would be uniform 
for the plan year and Plan M would continue to satisfy section 401(l). 
However, imputation of permitted disparity with respect to Employee B 
would not be allowed under Plan N.

    (c) Cumulative permitted disparity limit--(1) In general--(i) 
Employees who benefit under defined benefit plans. In the case of an 
employee who has benefited under one or more defined benefit plans for a 
plan year described in paragraph (c)(1)(v) of this section, the 
cumulative permitted disparity limit is satisfied if the employee's 
cumulative disparity fraction, as defined in paragraph (c)(2) of this 
section, does not exceed 35.
    (ii) Employees who do not benefit under defined benefit plans. In 
the case of an employee who has not benefited under a defined benefit 
plan for any plan year described in paragraph (c)(1)(v) of this section, 
the cumulative permitted disparity limit is satisfied.
    (iii) Certain plan years disregarded. For purposes of this paragraph 
(c), an employee is not treated as benefiting under a defined benefit 
plan for a plan year described in paragraph (c)(1)(v) of this section if 
the employer can establish that for that plan year the defined benefit 
plan was not a section 401(l) plan and did not impute permitted 
disparity under Sec. 1.401(a)(4)-7.
    (iv) Determination of type of plan. For purposes of this paragraph 
(c), a target benefit plan that relies on the special rule of 
Sec. 1.401(a)(4)-8(b)(3) to satisfy section 401(a)(4) and a DB/DC plan 
within the meaning of Sec. 1.401(a)(4)-9(a) are treated as defined 
benefit plans. Similarly, a cash balance plan that relies on the special 
rule of Sec. 1.401(a)(4)-8(c)(3) to satisfy section 401(a)(4) is treated 
as a defined contribution plan.
    (v) Applicable plan years. In applying paragraphs (c)(1) (i), (ii), 
and (iii) of this section, for purposes of determining whether an 
employee benefits

[[Page 293]]

under a defined benefit plan, the applicable plan years are all plan 
years that begin on or after the regulatory effective date, as set forth 
in Sec. 1.401(l)-6(b), or, in the case of governmental plans, as set 
forth in Sec. 1.401(a)(4)-13(b).
    (vi) Transition rule for defined contribution plans. A defined 
contribution plan is deemed to satisfy the cumulative permitted 
disparity limit for the first plan year to which these regulations 
apply, as set forth in Sec. 1.401(l)-6(b), or, in the case of 
governmental plans, as set forth in Sec. 1.401(a)(4)-13(b).
    (2) Cumulative disparity fraction. An employee's cumulative 
disparity fraction is the sum of the employee's total annual disparity 
fractions, as defined in paragraph (b)(2) of this section, attributable 
to the employee's total years of service under all plans.
    (3) Determination of total annual disparity fractions for prior 
years. For each of the employee's years of service credited as of the 
end of the last plan year beginning before January 1, 1989, not to 
exceed 35, under all plans as of that time that are taken into account 
under paragraph (a)(3) of this section (whether or not terminated), the 
employee's total annual disparity fraction is one. Therefore, if, before 
the first plan year beginning on or after January 1, 1989, an employee 
never participated in or benefited under any plan taken into account 
under paragraph (a)(3) of this section, the employee's total annual 
disparity fractions are determined without regard to this paragraph 
(c)(3). An employer may apply the rule in this paragraph (c)(3) with 
respect to all employees, using a year (including the current year) that 
is chosen by the employer and is later than 1989. Thus, for example, in 
lieu of calculating annual disparity fractions for all plan years, the 
employer may assume that the full disparity limit has been used in each 
prior plan year for which an employee has been credited with a year of 
service.
    (4) Special rules for greater of formulas and offset arrangements--
(i) Greater of formulas--(A) In general. A defined benefit plan that is 
a section 401(l) plan and that provides a benefit equal to the greater 
of the benefits determined under two or more formulas is deemed to 
satisfy the cumulative permitted disparity limit with respect to an 
employee if each of the requirements in paragraphs (c)(4)(i) (B) and (C) 
of this section is satisfied. For this purpose, a plan that uses a 
fresh-start formula that determines the accrued benefit as the greater 
of two amounts under Sec. 1.401(a)(4)-13(c)(4) (ii) or (iii) provides a 
benefit equal to the greater of the benefits determined under two or 
more formulas.
    (B) Separate satisfaction by formulas. Each formula under the plan 
would satisfy the cumulative permitted disparity limit if it were the 
only formula under the plan. In the case of a current formula that 
applies to the employee's total years of service (as, for example, under 
Sec. 1.401(a)(4)-13(c)(4) (ii)(B) or (iii)(B)), for purposes of 
determining whether that formula would satisfy the cumulative permitted 
disparity limit if it were the only formula under the plan, the special 
rule for prior years under paragraph (c)(3) of this section may be 
disregarded.
    (C) Single plan. The employee has never benefited under another plan 
taken into account under paragraph (a)(3) of this section that is a 
section 401(l) plan or that satisfies section 401(a)(4) by relying on 
Sec. 1.401(a)(4)-7. For this purpose, if the benefit under the plan is 
offset in an offset arrangement described in paragraph (b)(8)(iii)(B) of 
this section, the other plan is disregarded. In addition, a plan does 
not fail the requirements of this paragraph (c)(4)(i)(C) merely because 
the employee benefits under another defined benefit plan, provided 
that--
    (1) With respect to each benefit formula under the plan, no years of 
service taken into account under that benefit formula are taken into 
account under a benefit formula of the other plan; and
    (2) Paragraph (c)(4)(i)(B) of this section would be satisfied if the 
plans were treated as a single plan that provided a benefit equal to the 
greater of the benefits provided under two or more formulas. For this 
purpose, a formula consists of the sum of a formula for the years of 
service taken into account under one plan and a formula for the years of 
service taken into account under the other plan. Thus, each possible 
combination of the formulas

[[Page 294]]

under the plans must satisfy paragraph (c)(4)(i)(B) of this section.
    (ii) Offset arrangements--(A) In general. If a defined benefit plan 
is a section 401(l) plan and the benefit under the plan (the gross 
benefit plan) is offset by the benefit under another plan (the 
offsetting plan) in an offset arrangement described in paragraph 
(b)(8)(iii)(B) of this section, the gross benefit plan is deemed to 
satisfy the cumulative permitted disparity limit with respect to an 
employee if each of the requirements in paragraphs (c)(4)(ii) (B) and 
(C) of this section is satisfied.
    (B) Separate satisfaction by plans. This requirement is satisfied if 
the gross benefit plan would satisfy the cumulative disparity limit if 
no offset applied, and the offsetting plan satisfies the cumulative 
permitted disparity limit, not taking into account the gross benefit 
plan.
    (C) No other plan. Except for the plans in the offset arrangement, 
the employee has never benefited under another plan taken into account 
under paragraph (a)(3) of this section that is a section 401(l) plan or 
that satisfies section 401(a)(4) by relying on Sec. 1.401(a)(4)-7. An 
offset arrangement does not fail the requirements of this paragraph 
(c)(4)(ii)(C) merely because the employee benefits under another defined 
benefit plan, provided no years of service taken into account under a 
benefit formula of any plan in the offset arrangement are also taken 
into account under a benefit formula of the other plan.
    (5) Examples. The following examples illustrate this paragraph (c). 
In each example the plan is noncontributory and, unless provided 
otherwise, is the only plan ever maintained by the employer. Each plan 
uses a normal retirement age of 65 and contains no provision that would 
require a reduction in the 0.75-percent factor under Sec. 1.401(l)-
3(b)(2) or (3). Each example discusses the benefit formula applicable to 
an employee who has a social security retirement age of 65.

    Example 1. Plan M is a defined benefit excess plan that provides a 
normal retirement benefit of 1 percent of average annual compensation up 
to covered compensation, plus 1.75 percent of average annual 
compensation above covered compensation, for each year of service 
without limit. The disparity provided under the plan for the plan year 
is 0.75 percent, the excess benefit percentage of 1.75 percent minus the 
base benefit percentage of 1 percent. The maximum excess allowance for 
the plan year is 0.75 percent. Thus, each employee's annual defined 
benefit excess plan disparity fraction under the plan for each plan year 
is one. Because the plan contains no limit on the years of service taken 
into account under the plan, the sum of the total annual disparity 
fractions for a potential employee with more than 35 years of service 
will exceed 35. In addition, the plan does not provide that the overall 
permitted disparity limits may not be exceeded as required by paragraph 
(a)(2) of this section. The plan therefore does not satisfy the 
cumulative permitted disparity limit of this paragraph (c).
    Example 2. Plan N is an offset plan that provides a normal 
retirement benefit of 2 percent of average annual compensation, minus 
0.75 percent of final average compensation up to the lesser of covered 
compensation and average annual compensation, for each year of service 
up to 35. The disparity provided under the plan for the plan year is 
0.75 percent, the offset percentage. The maximum offset allowance for 
the plan year is 0.75 percent. Thus, each employee's annual offset plan 
disparity fraction under the plan for each plan year is one. Because the 
plan limits the years of service taken into account under the plan to 
35, the sum of the total annual disparity fractions for an employee 
cannot exceed 35. The plan therefore satisfies the cumulative permitted 
disparity limit of this paragraph (c).
    Example 3. Plan O is a defined benefit excess plan that provides a 
normal retirement benefit of 0.75 percent of average annual compensation 
up to covered compensation, plus 1.25 percent of average annual 
compensation above covered compensation, for each year of service up to 
45. The disparity provided under the plan for the plan year is 0.5 
percent, the excess benefit percentage of 1.25 percent minus the base 
benefit percentage of 0.75 percent. The maximum excess allowance for the 
plan year is 0.75 percent. Thus, each employee's annual defined benefit 
excess plan disparity fraction under the plan for each plan year is 0.67 
(0.5 percent divided by 0.75 percent). Because the plan limits the years 
of service taken into account under the plan to 45, the sum of the total 
annual disparity fractions for an employee cannot exceed 30 (0.67 x 45). 
The plan therefore satisfies the cumulative permitted disparity limit of 
this paragraph (c).
    Example 4. (a) Plan P is a defined contribution excess plan. Plan P 
provides a base contribution percentage of 6 percent and an excess 
contribution percentage of 11.7 percent, thus providing disparity of 5.7 
percent for

[[Page 295]]

the plan year. Because the maximum excess allowance for each plan year 
under Plan P is 5.7 percent, each employee's annual defined contribution 
plan disparity fraction under Plan P for each plan year is one. Plan Q 
is a defined benefit excess plan maintained by the same employer. Plan Q 
provides a base benefit percentage of 1 percent and an excess benefit 
percentage of 1.75 percent for each year of service up to 35, thus 
providing disparity of 0.75 percent for the plan year. Because the 
maximum excess allowance for each plan year under Plan Q is 0.75 
percent, each employee's annual defined benefit excess plan disparity 
fraction under Plan Q for each plan year is one.
    (b) Employee A benefits under Plan P for the 1980 through the 1994 
plan years. The sum of Employee A's total annual disparity fractions 
under Plan P is 15. (Under paragraph (c)(3)(i) of this section, Employee 
A's annual disparity fraction for each year of service as of the end of 
the 1988 plan year is one.) As of the 1995 plan year, Employee A no 
longer benefits under Plan P and begins to benefit under Plan Q for the 
first time. In order to satisfy the cumulative permitted disparity limit 
of this paragraph (c), Plan Q must provide that no disparity will be 
provided if the sum of an employee's total annual disparity fractions 
reaches 35, taking into account the employee's annual defined 
contribution plan disparity fractions under Plan P as well as the 
employee's annual defined benefit excess plan disparity fractions under 
Plan Q. Thus, after Employee A has benefited under Plan Q for 20 years, 
Plan Q may not provide any disparity in additional benefits accrued for 
Employee A.
    Example 5. (a) Plan O is a noncontributory defined benefit excess 
plan. Plan O provides an employee whose social security retirement age 
is 65 with the greater of the benefits determined under two formulas. 
The first formula provides a benefit of 1 percent of average annual 
compensation up to covered compensation, plus 1.75 percent of average 
annual compensation above covered compensation, for each year of service 
up to 35. The second formula provides a benefit of 1 percent of average 
annual compensation up to covered compensation, plus 1.6 percent of 
average annual compensation above covered compensation, for each year of 
service up to 40.
    (b) Under paragraph (b)(4) of this section, an employee's annual 
defined benefit excess plan fraction for each of the 35 years under the 
first formula is 0.75/0.75 or one, and an employee's annual defined 
benefit excess plan fraction for each of the 40 years under the second 
formula is 0.6/0.75 or 0.8. Under paragraph (b)(8)(ii) of this section, 
an employee's annual defined benefit excess plan fraction (and total 
annual disparity fraction because the employee benefits only under Plan 
O) for the plan year is the larger fraction under the two formulas or 
one. Therefore, after 35 years, the employee has a cumulative disparity 
fraction of 35. The disparity provided under the second formula for 
years of service after 35 thus exceeds the cumulative permitted 
disparity limit unless the plan qualifies for the special rule in 
paragraph (c)(4)(i) of this section.
    (c) Assume the condition in paragraph (c)(4)(i)(C) of this section 
is satisfied because no employee has benefited under another plan taken 
into account under paragraph (a)(3) of this section. In addition, the 
largest cumulative disparity fraction possible under the first formula 
is 35 times one or 35, and the largest cumulative disparity fraction 
possible under the second formula is 40 times 0.8 or 32. Thus, the 
requirement of paragraph (c)(4)(i)(B) of this section is also satisfied 
because each formula would satisfy the cumulative permitted disparity 
limit if it were the only formula under the plan. Under paragraph 
(c)(4)(i) of this section, the plan is deemed to satisfy the cumulative 
permitted disparity limit with respect to an employee whose social 
security retirement age is 65.

    (d) Additional rules. The Commissioner may prescribe additional 
rules under this section as the Commissioner considers appropriate. 
Additional rules may include (without being limited to) rules for 
computing the fractions described in this section with respect to 
terminated plans, rules for applying the overall permitted disparity 
limits to employees who benefit under plans maintained by railroad 
employers, and rules for determining which plans do not satisfy section 
401(l) if the overall permitted disparity limits are exceeded.

[T.D. 8359, 56 FR 47634, Sept. 19, 1991; 57 FR 10819, 10952, Mar. 31, 
1992, as amended by T.D. 8486, 58 FR 46833, Sept. 3, 1993]



Sec. 1.401(l)-6  Effective dates and transition rules.

    (a) Statutory effective date--(1) In general. Except as otherwise 
provided in paragraph (a)(2) of this section, section 401(a)(5)(C) is 
effective for plan years beginning on or after January 1, 1989, and 
section 401(l) is effective with respect to plan years, and benefits 
attributable to plan years, beginning on or after January 1, 1989. The 
preceding sentence is applicable to a plan without regard to whether the 
plan was in existence as of a particular date.
    (2) Collectively bargained plans. (i) In the case of a plan 
maintained pursuant

[[Page 296]]

to 1 or more collective bargaining agreements between employee 
representatives and 1 or more employers ratified before March 1, 1986, 
sections 401(a)(5) and 401(l) are applicable for plan years beginning on 
or after the later of--
    (A) January 1, 1989; or
    (B) The date on which the last of such collective bargaining 
agreements terminates (determined without regard to any extension of any 
such agreement occurring on or after March 1, 1986). However, 
notwithstanding the preceding sentence, sections 401(a)(5) and 401(l) 
apply to plans described in this paragraph (a)(2) no later than the 
first plan year beginning after January 1, 1991.
    (ii) For purposes of paragraph (a)(2)(i)(B) of this section, a 
change made after October 22, 1986, in the terms or conditions of a 
collectively bargained plan, pursuant to a collective bargaining 
agreement ratified before March 1, 1986, is not treated as a change in 
the terms and conditions of the plan.
    (iii) In the case of a collectively bargained plan described in 
paragraph (a)(2)(i) of this section, if the date in paragraph 
(a)(2)(i)(B) of this section precedes November 15, 1988, then the date 
in this paragraph (a)(2) is replaced with the date on which the last of 
any collective bargaining agreements in effect on November 15, 1988, 
terminates, provided that the plan complies during this period with a 
reasonable good faith interpretation of section 401(l).
    (iv) Whether a plan is maintained pursuant to a collective 
bargaining agreement is determined under the principles applied under 
section 1017(c) of the Employee Retirement Income Security Act of 1974. 
See H.R. Rep. No. 1280, 93d Cong., 2d Sess. 266 (1974). In addition, a 
plan is not treated as maintained under a collective bargaining 
agreement unless the employee representatives satisfy section 
7701(a)(46) of the Internal Revenue Code after March 31, 1984. See 
Sec. 301.7701-17T of this chapter for other requirements for a plan to 
be considered to be collectively bargained.
    (b) Regulatory effective date--(1) In general. Except as otherwise 
provided in paragraph (b)(2) of this section, Secs. 1.401(l)-1 through 
1.401(l)-6 apply to plan years beginning on or after January 1, 1994.
    (2) Plans of tax-exempt organizations. In the case of plans 
maintained by an organization exempt from income taxation under section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans), Secs. 1.401(l)-1 through 1.401(l)-6 apply to plan years 
beginning on or after January 1, 1996.
    (3) Defined contribution plans. A defined contribution plan 
satisfies section 401(l) with respect to a plan year beginning on or 
after the effective date of these regulations, as set forth in 
paragraphs (b)(1) and (b)(2) of this section, if it satisfies the 
applicable requirements of Secs. 1.401(l)-1 through 1.401(l)-5 for the 
plan year.
    (4) Defined benefit plans. A defined benefit excess plan or offset 
plan satisfies section 401(l) with respect to all plan years, and 
benefits attributable to all plan years, beginning on or after the 
effective date of these regulations, as set forth in paragraphs (b)(1) 
and (b)(2) of this section, by satisfying the applicable requirements of 
Secs. 1.401(l)-1 through 1.401(l)-5 and the requirements of 
Sec. 1.401(a)(4)-13(c) (and Sec. 1.401(a)(4)-13(d), if applicable), 
using a fresh-start date that is on or after December 31, 1988, and 
before the effective date of these regulations. A defined benefit excess 
plan or offset plan that does not satisfy section 401(l) with respect to 
all plan years beginning on or after the effective date of these 
regulations may, under the rules of Sec. 1.401(a)(4)-13(c) (and 
Sec. 1.401(a)(4)-13(d), if applicable), satisfy section 401(l) for plan 
years beginning after a fresh-start date by satisfying the applicable 
requirements of Secs. 1.401(l)-1 through 1.401(l)-5 after the fresh-
start date.
    (c) Compliance during transition period. For plan years beginning on 
or after January 1, 1989, and before the effective date of these 
regulations, as set forth in paragraph (b) of this section, a plan must 
be operated in accordance with a reasonable, good faith interpretation 
of section 401(l). Whether a plan is operated in accordance with a 
reasonable, good faith interpretation of section 401(l) will generally 
be determined based on all of the relevant facts and circumstances, 
including the extent to

[[Page 297]]

which an employer has resolved unclear issues in its favor. A plan will 
be deemed to be operated in accordance with a reasonable, good faith 
interpretation of section 401(l) if it is operated in accordance with 
the terms of Secs. 1.401(l)-1 through 1.401(l)-5.

[T.D. 8486, 58 FR 46835, Sept. 3, 1993]



Sec. 1.401(m)-0  Employee and matching contributions, table of contents.

    This section contains the captions that appear in Secs. 1.401(m)-1 
and 1.401(m)-2.

          Sec. 1.401(m)-1  Employee and matching contributions.

(a) General rules.
    (1) Nondiscriminatory amount of contributions.
    (2) Other nondiscrimination rules.
    (3) Rules applicable to collectively bargained plans.
(b) Actual contribution percentage test.
    (1) General rule.
    (2) Plan provision requirement.
    (3) Aggregation of plans.
    (i) General rule.
    (ii) Restructuring and Permissive Disaggregation.
    (4) Employee and matching contributions taken into account under the 
actual contribution percentage test.
    (i) Employee contributions.
    (A) General rule.
    (B) Recharacterized elective contributions.
    (ii) Matching contributions.
    (A) General rule.
    (B) Matching contributions and qualified nonelective contributions 
used to satisfy actual deferral percentage test.
    (C) Treatment of forfeited matching contributions.
    (5) Qualified nonelective contributions and elective contributions 
that may be taken into account under the actual contribution percentage 
test.
(c) Additional requirements.
    (1) Coordination with other plans.
    (2) Recordkeeping requirement.
    (3) Consistent application of separate line of business rules.
(d) Examples.
(e) Correction of excess aggregate contributions.
    (1) General rule.
    (i) Permissible correction methods.
    (ii) Combination of correction methods.
    (iii) Impermissible correction methods.
    (iv) Partial correction.
    (2) Amount of excess aggregate contributions.
    (i) General rule.
    (ii) Coordination with correction of excess contributions.
    (iii) Correction of family members.
    (3) Corrective distribution of excess aggregate contributions (and 
income).
    (i) General rule.
    (ii) Income allocable to excess aggregate contributions.
    (A) General rule.
    (B) Method of allocating income.
    (C) Alternative method of allocating income.
    (D) Safe harbor method of allocating gap period income.
    (E) Allocable income for recharacterized elective contributions.
    (iii) No employee or spousal consent required.
    (iv) Treatment of corrective distributions and forfeited 
contributions as employer contributions.
    (v) Tax treatment of corrective distributions.
    (A) General rule.
    (B) Rule for de minimis distributions.
    (C) Rule for certain 1987 and 1988 excess aggregate contributions.
    (vi) No reduction of required minimum distribution.
    (vii) No corrective distribution of matching contributions other 
than excess aggregate contributions.
    (4) Coordination with section 401(a)(4).
    (5) Failure to correct.
    (i) Failure to correct within 2\1/2\ months after end of plan year.
    (ii) Failure to correct within 12 months after end of plan year.
    (6) Examples.
(f) Definitions.
    (1) Actual contribution percentage.
    (i) General rule.
    (ii) Actual contribution ratio.
    (A) General rule.
    (B) Highly compensated employee eligible under more than one plan.
    (C) Employees subject to family aggregation rules.
    (1) Aggregation of employee contributions and other amounts.
    (2) Effect on actual contribution percentage of nonhighly 
compensated employees.
    (3) Multiple family groups.
    (2) Compensation.
    (3) Elective contributions.
    (4) Eligible employee.
    (i) General.
    (ii) Certain one-time elections.
    (5) Employee.
    (6) Employee contributions.
    (7) Employer.
    (8) Excess aggregate contributions.
    (9) Excess contributions.
    (10) Excess deferrals.
    (11) Highly compensated employee.
    (12) Matching contributions.
    (i) In general.

[[Page 298]]

    (ii) Employer contributions made on account of employee or elective 
contributions.
    (iii) Contributions used to meet the requirements of section 416.
    (13) Nonelective contributions.
    (14) Plan.
    (15) Qualified nonelective contributions.
    (16) Section 401(k) plan.
    (17) Section 401(m) plan.
(g) Effective dates.
    (1) General rule.
    (2) Collectively bargained plans.
    (3) Certain annuity contracts.
    (4) State and local government plans.
    (5) Transition rule for plan years beginning before 1992.
    (i) General rule.
    (ii) Restructuring.
    (A) General rule.
    (B) Identification of component plans.
    (1) Minimum coverage requirement.
    (2) Commonality requirement.

        Sec. 1.401(m)-2  Multiple Use of alternative limitation.

(a) In general.
(b) General rule for determination of multiple use.
    (1) In general.
    (2) Alternative limitation.
    (3) Aggregate limit.
    (i) In general.
    (ii) Relevant actual deferral percentage and relevant actual 
contribution percentage defined.
    (iii) Examples.
(c) Correction of multiple use.
    (1) In general.
    (2) Treatment of required reduction.
    (3) Required reduction.
    (4) Examples.
(d) Effective date.
    (1) General rule.
    (2) Transition rule.

[T.D. 8357, 56 FR 40534, Aug. 15, 1991, as amended by T.D. 8376, 56 FR 
63432, Dec. 4, 1991; T.D. 8581, 59 FR 66175, Dec. 23, 1994]



Sec. 1.401(m)-1  Employee and matching contributions.

    (a) General Rules--(1) Nondiscriminatory amount of contributions. A 
defined contribution plan does not satisfy section 401(a)(4) for a plan 
year unless the amount of employee and matching contributions to the 
plan for the plan year satisfies section 401(a)(4). See 
Sec. 1.401(a)(4)-1(b)(2)(ii). Except as specifically provided otherwise, 
for plan years beginning after December 31, 1986 (or such later date 
provided in paragraph (g) of this section) the amount of employee and 
matching contributions under a plan satisfies the requirements of 
section 401(a)(4) only if the employee and matching contributions under 
the plan satisfy the actual contribution percentage test of section 
401(m)(2) and paragraph (b) of this section. See Sec. 1.401(a)(4)-
1(b)(2)(ii)(B). Also, except as specifically provided otherwise, for 
plan years beginning after December 31, 1988 (or such later date 
provided in Sec. 1.401(m)-2(d)), the amount of employee and matching 
contributions under a plan satisfies the requirements of sections 401(m) 
and 401(a)(4) only if any multiple use of the alternative methods of 
compliance with sections 401 (k) and (m) (contained in sections 
401(k)(3)(A)(ii)(II) and 401(m)(2)(A)(ii), respectively) is corrected 
under Sec. 1.401(m)- 2(c). See section 401(m)(9) and Sec. 1.401(m)-2. 
For these purposes, the employee and matching contributions are combined 
with the elective and qualified nonelective contributions, if any, that 
are treated as matching contributions, and the recharacterized elective 
contributions, if any, that are treated as employee contributions for 
purposes of section 401(m).
    (2) Other nondiscrimination rules. Nondiscrimination requirements in 
addition to those described in paragraph (a)(1) of this section apply to 
employee and matching contributions under sections 401(a)(4) and 410(b). 
For example, under section 401(a)(4) a plan may not discriminate with 
respect to the availability of benefits, rights, and features under the 
plan. See Sec. 1.401(a)(4)-1(b)(3). The right to make each level of 
employee contributions, and the right to each level of matching 
contributions, are benefits, rights, or features subject to this 
requirement, and each level must therefore generally be available to a 
group of employees that satisfies section 410(b). See Sec. 1.401(a)(4)-
4(e)(3) (i) and (iii) (F) through (G). Thus, for example, a plan does 
not satisfy section 401(a)(4) if it provides a higher rate of matching 
contributions for highly compensated employees than for nonhighly 
compensated employees. See paragraph (e)(4) of this section for rules 
relating to the application of section 401(a)(4) to the correction of 
excess aggregate contributions. See Sec. 1.401(a)(4)-11(g)(3)(vii) for 
special rules relating to

[[Page 299]]

correction of violations of the minimum coverage requirements or 
discriminatory rates of match in a section 401(m) plan. For special 
rules governing the application of section 410(b) to employee and 
matching contributions, see Secs. 1.410(b)-7(c)(1) and 1.410(b)-8(a)(1).
    (3) Rules applicable to collectively bargained plans. The 
requirements of this section are treated as satisfied by employee and 
matching contributions under a collectively bargained plan (or the 
portion of a plan) that automatically satisfies section 410(b). See 
Secs. 1.401(a)(4)-1(c)(5) and 1.410(b)-2(b)(7). There are no excess 
aggregate contributions under a plan (or a portion of a plan) that is 
treated under this paragraph (a)(3) as satisfying the requirements of 
this section. Thus, the provisions of section 4979 and Sec. 54.4979-1 of 
this chapter do not apply to contributions described in the first 
sentence of this paragraph (a)(3).
    (b) Actual contribution percentage test--(1) General rule. (i) For 
plan years beginning after December 31, 1986, or such later date 
provided in paragraph (g) of this section, the actual contribution 
percentage test is satisfied if--
    (A) The actual contribution percentage for the group of eligible 
highly compensated employees is not more than the actual contribution 
percentage for the group of all other eligible employees multiplied by 
1.25; or
    (B) The excess of the actual contribution percentage for the group 
of eligible highly compensated employees over the actual contribution 
percentage for the group of all other eligible employees is not more 
than two percentage points, and the actual contribution percentage for 
the group of eligible highly compensated employees is not more than the 
actual contribution percentage for the group of all other eligible 
employees multiplied by two.
    (ii) A plan does not fail to satisfy the requirements of this 
paragraph (b)(1) merely because all of the eligible employees under the 
plan for a year are highly compensated employees.
    (2) Plan provision requirement. For plan years beginning after 
December 31, 1986, or such later date provided in paragraph (g) of this 
section, a plan that permits employee or matching contributions does not 
satisfy the requirements of section 401(a) unless it provides that the 
actual contribution percentage test of section 401(m)(2) will be met. 
For purposes of this paragraph (b)(2), the plan may incorporate the 
provisions of section 401(m)(2), this paragraph (b), and, if applicable, 
section 401(m)(9) and Sec. 1.401(m)-2.
    (3) Aggregation of plans--(i) General rule. See Sec. 1.401(m)-
1(f)(14) for the definition of a plan used for purposes of this section 
and Sec. 1.401(m)-2. That definition contains the exclusive rules for 
aggregation and disaggregation of plans for purposes of this section and 
Sec. 1.401(m)-2.
    (ii) Restructuring and Permissive Disaggregation. Effective for plan 
years beginning after December 31, 1991, restructuring under 
Sec. 1.401(a)(4)-9(c) may not be used to demonstrate compliance with the 
requirements of section 401(m). See Sec. 1.401(a)(4)- 9(c)(3)(ii). For 
plan years beginning before January 1, 1992, see Sec. 1.401(m)-
1(g)(5)(ii). An employer may, however, treat a plan benefiting otherwise 
excludable employees as two separate plans for purposes of sections 
401(m) and 410(b) in accordance with Secs. 1.410(b)-6(b)(3) and 
1.410(b)-7(c)(3).
    (4) Employee and matching contributions taken into account under the 
actual contribution percentage test--(i) Employee contributions--(A) 
General rule. An employee contribution is taken into account under 
paragraph (b)(1) of this section for the plan year in which the 
contribution is made to the trust. For this purpose, a payment by the 
employee to an agent of the plan is treated as a contribution to the 
trust at the time of payment to the agent if the funds paid are 
transmitted to the trust within a reasonable period after the payment to 
the agent.
    (B) Recharacterized elective contributions. An excess contribution 
that is recharacterized under Sec. 1.401(k)-1(f)(3) is taken into 
account as an employee contribution for the plan year that includes the 
time at which the excess contribution is includible in the gross income 
of the employee under Sec. 1.401(k)-1(f)(3)(ii).
    (ii) Matching contributions--(A) General rule. A matching 
contribution is taken into account under paragraph (b)(1) of this 
section for a plan year

[[Page 300]]

only if the contribution is allocated to the employee's account under 
the terms of the plan as of any date within the plan year, is actually 
paid to the trust no later than 12 months after the close of the plan 
year, and is made on behalf of an employee on account of the employee's 
elective contributions or employee contributions for the plan year. 
Matching contributions that do not satisfy these requirements are not 
taken into account under paragraph (b)(1) of this section for any plan 
year. Instead, the amount of these matching contributions must satisfy 
the requirements of section 401(a)(4) (without regard to the special 
nondiscrimination rule in paragraph (b)(1) of this section) for the plan 
year for which they are allocated under the plan, as if they were 
nonelective contributions and were the only nonelective employer 
contributions for that year. See Secs. 1.401(a)(4)-1(b)(2)(ii)(B); 
1.410(b)-7(c)(1).
    (B) Matching contributions and qualified nonelective contributions 
used to satisfy actual deferral percentage test. A matching contribution 
that is treated as an elective contribution is subject to the actual 
deferral percentage test of section 401(k)(3) and is not taken into 
account under paragraph (b)(1) of this section. See Sec. 1.401(k)-
1(b)(5)(iii) for the rule relating to years before January 1, 1987. A 
qualified nonelective contribution that is treated as an elective 
contribution is subject to the actual deferral percentage test of 
section 401(k)(3) and is not taken into account as a matching 
contribution under paragraph (b)(1) or (5) of this section.
    (C) Treatment of forfeited matching contributions. A matching 
contribution that is forfeited to correct excess aggregate 
contributions, or because the contribution to which it relates is 
treated as an excess contribution, excess deferral, or excess aggregate 
contribution, is not taken into account under paragraph (b)(1) of this 
section.
    (5) Qualified nonelective contributions and elective contributions 
that may be taken into account under the actual contribution percentage 
test. Except as specifically provided otherwise, for purposes of 
paragraph (b)(1) of this section, all or part of the qualified 
nonelective contributions and elective contributions made with respect 
to any or all employees who are eligible employees under the plan of the 
employer being tested may be treated as matching contributions provided 
that each of the following requirements (to the extent applicable) is 
satisfied:
    (i) The amount of nonelective contributions, including those 
qualified nonelective contributions treated as matching contributions 
for purposes of the actual contribution percentage test, satisfies the 
requirements of section 401(a)(4). See Sec. 1.401(a)(4)-1(b)(2).
    (ii) The amount of nonelective contributions, excluding those 
qualified nonelective contributions treated as matching contributions 
for purposes of the actual contribution percentage test and those 
qualified nonelective contributions treated as elective contributions 
under Sec. 1.401(k)-1(b)(5) for purposes of the actual deferral 
percentage test, satisfies the requirements of section 401(a)(4). See 
Sec. 1.401(a)(4)-1(b)(2).
    (iii) The elective contributions, including those treated as 
matching contributions for purposes of the actual contribution 
percentage test, satisfy the requirements of section 401(k)(3).
    (iv) The qualified nonelective contributions are allocated to the 
employee under the plan as of a date within the plan year (within the 
meaning of Sec. 1.401(k)-1(b)(4)(i)(A)), and the elective contributions 
satisfy Sec. 1.401(k)-1(b)(4)(i) for the plan year.
    (v) For plan years beginning after December 31, 1988, or such later 
date provided in paragraph (g) of this section, the plan that takes 
qualified nonelective contributions and elective contributions into 
account in determining whether employee and matching contributions 
satisfy the requirements of section 401(m)(2)(A), and the plans to which 
the qualified nonelective contributions and elective contributions are 
made, could be aggregated under Sec. 1.410(b)-7(d) after application of 
the mandatory disaggregation rules of Sec. 1.410(b)-7(c), as modified in 
Sec. 1.401(k)-1(g)(11). If the plan year of the section 401(m) plan is 
changed to satisfy the requirement under Sec. 1.410(b)-7(d)(5) that the 
aggregated plans have the same plan year, the elective contributions may 
be taken into account in the resulting short plan year only if these 
contributions satisfy the requirements

[[Page 301]]

of Sec. 1.401(k)-1(b)(4) with respect to the short year, and the 
qualified nonelective contributions may be taken into account in the 
resulting short plan year only if these contributions satisfy the 
requirements of Sec. 1.401(k)-1(b)(4)(i)(A) with respect to the short 
year as if they were elective contributions.
    (c) Additional requirements--(1) Coordination with other plans. 
Except as expressly permitted under section 401(k) or 401(m), for plan 
years beginning after December 31, 1988, or such later date provided in 
paragraph (g) of this section, employee or matching contributions (or 
elective contributions treated as matching contributions under paragraph 
(b)(5) of this section) may not be taken into account for purposes of 
determining whether any other contributions under any plan (including 
the plan to which the employee or matching contributions are made) 
satisfy the requirements of section 401(a). Indeed, the portion of a 
plan that consists of employee and matching contributions is treated as 
a separate plan for purposes of sections 401(a)(4) and 410(b). See 
Sec. 1.410(b)-7(c)(1). Similarly, although matching contributions and 
qualified nonelective contributions may be used to enable a plan to 
satisfy the minimum contribution or benefit requirements under section 
416, matching contributions that are used in this way are not treated as 
matching contributions, and must therefore satisfy the nondiscrimination 
requirements of section 401(a)(4) without regard to section 401(k) or 
401(m). See Sec. 1.416-1, M-18 & M-19 and paragraph (f)(12)(iii) of this 
section. See also Sec. 1.401(k)-1(b)(5) for circumstances under which 
matching contributions may be used to determine whether a plan satisfies 
the requirements of section 401(k). This paragraph does not apply for 
purposes of determining whether a plan satisfies the average benefit 
percentage test of section 410(b)(2)(A)(ii).
    (2) Recordkeeping requirement. A plan satisfies this section only if 
the employer maintains the records necessary to demonstrate compliance 
with the applicable nondiscrimination requirements of paragraph (b) of 
this section, including records showing the extent to which qualified 
nonelective contributions and elective contributions are taken into 
account.
    (3) Consistent application of separate line of business rules. If an 
employer is treated as operating qualified separate lines of business 
under section 414(r) in accordance with Sec. 1.414(r)-1(b) for purposes 
of applying section 410(b), and applies the special rule for employer-
wide plans in Sec. 1.414(r)-1(c)(2)(ii) to the portion of the plan that 
consists of matching contributions or to the portion of the plan that 
consists of employee contributions (the ``matching and employee 
contribution portions''), then the requirements of this section, section 
401(m), and Sec. 1.401(m)-2 must be applied on an employer-wide rather 
than a qualified-separate-line-of-business basis to all of the plans or 
portions of plans taken into account in determining whether those 
requirements are satisfied by the matching and employee contribution 
portions of the plan (regardless of whether the other plans or portions 
of plans also satisfy the requirements necessary to apply the special 
rule in Sec. 1.414(r)-1(c)(2)(ii)). Conversely, if an employer is 
treated as operating qualified separate lines of business under section 
414(r) in accordance with Sec. 1.414(r)-1(b) for purposes of applying 
section 410(b), and does not apply the special rule for employer-wide 
plans in Sec. 1.414(r)1-(c)(2)(ii) to either the matching or employee 
contribution portions of the plan, then the requirements of this 
section, section 401(m) and Sec. 1.401(m)-2 must be applied on a 
qualified-separate-line-of-business rather than an employer-wide basis 
to all of the plans or portions of plans taken into account in 
determining whether those requirements are satisfied by the matching and 
employee contribution portions of the plan (regardless of whether one or 
more of the other plans or portions of plans is tested under the special 
rule Sec. 1.414(r)-1(c)(2)(ii)). This requirement applies solely for 
purposes of determining whether the requirements of this section, 
section 401(m), and Sec. 1.401(m)-2 are satisfied by the matching and 
employee contribution portions of the plan. The rules of this paragraph 
are illustrated by the following example.


[[Page 302]]


    Example. (i) Employer A maintains a profit-sharing plan that 
includes a cash or deferred arrangement in which all of the employees of 
Employer A are eligible to participate. Under the profit-sharing plan, 
each $1.00 of elective contributions under the cash or deferred 
arrangement is matched by $0.50 of employer contributions. Employer A is 
treated as operating qualified separate lines of business under section 
414(r) in accordance with Sec. 1.414(r)-1(b) for purposes of applying 
section 410(b). However, Employer A applies the special rule for 
employer-wide plans in Sec. 1.414(r)-1(c)(2)(ii) to the portion of its 
profitsharing plan that consists of matching contributions. Employer A 
makes qualified nonelective contributions to the profit-sharing plan for 
the 1995 plan year.
    (ii) Under these facts, the requirements of sections 401(a)(4) and 
410(b) must be applied on an employer-wide rather than a qualified-
separate-line-of-business basis in determining whether these qualified 
nonelective contributions (and any elective contributions under the cash 
or deferred arrangement) satisfy the requirements of Sec. 1.401(m)-
1(b)(5), and thus whether they may be taken into account under the 
actual contribution percentage test. Thus, in order for the nonelective 
contributions to be used to satisfy the actual contribution percentage 
test, both (1) the total amount of nonelective contributions under the 
profit-sharing plan, including the qualified nonelective contributions 
to be used to satisfy the actual contribution percentage test, and (2) 
the total amount of nonelective contributions under the profit-sharing 
plan, excluding the qualified nonelective contributions to be used to 
satisfy the actual contribution percentage test, must satisfy the 
requirements of section 401(a)(4) on an employer-wide basis. Further, in 
order for any elective contributions under the cash or deferred 
arrangement to be used to satisfy the actual contribution percentage 
test, the total amount of elective contributions, including any treated 
as matching contributions under the actual contribution percentage test, 
must satisfy the requirements of section 401(k)(3) on an employer-wide 
basis. Of course, in order for the profit-sharing plan to satisfy 
section 401(a), it must still satisfy sections 410(b) and 401(a)(4) on a 
qualified-separate-line-of-business basis.
    (d) Examples. The provisions of paragraphs (a) through (c) of this 
section are illustrated by the following examples. Assume in each case 
that the employer is a corporation, and that the employer's taxable year 
and plan year are the calendar year. Also assume that the employee 
contributions, elective contributions, matching contributions and 
qualified nonelective contributions meet the applicable requirements of 
sections 401(a)(4) and 410. For methods to be used to correct excess 
aggregate contributions, see paragraph (e) of this section.

    Example 1. (i) Employer L maintains a profit-sharing plan providing 
for voluntary employee contributions. L does not maintain a plan that 
includes a cash or deferred arrangement. For the 1988 plan year, the 
actual contribution percentages (ACPs) for the highly compensated 
employees and nonhighly compensated employees are shown in the following 
chart:

------------------------------------------------------------------------
                                                              Actual    
                                                           contribution 
                                                            percentage  
------------------------------------------------------------------------
Highly compensated.....................................               10
Nonhighly compensated..................................                5
------------------------------------------------------------------------

    (ii) This plan fails to qualify under either of the tests of section 
401(m)(2)(A) because the ACP for highly compensated employees is more 
than 125 percent of the ACP for nonhighly compensated employees, and 
exceeds the ACP for the nonhighly compensated employees by more than two 
percentage points. L must either reduce the ACP for the highly 
compensated employees to seven percent (to satisfy the 200 percent/two 
percentage point test) or increase the ACP of the nonhighly compensated 
employees to eight percent (to satisfy the 125 percent test).
    Example 2. (i) Employer M maintains a plan under which each dollar 
of employee contributions is matched with $.50 of employer 
contributions. M maintains no other plan. For the 1988 plan year, the 
average percentage of compensation contributed to the plan for the 
employees is shown in the following chart:

------------------------------------------------------------------------
                                 Employee       Matching       Actual   
                              contributions  contributions  contribution
                                (percent)      (percent)     percentage 
------------------------------------------------------------------------
Highly compensated..........         10              5             15   
Nonhighly compensated.......          5              2.5            7.5 
------------------------------------------------------------------------

    (ii) This plan fails to satisfy either of the tests of section 
401(m)(2)(A). Employer M must either reduce the actual contribution 
percentage of the highly compensated employees to 9.5 percent (to 
satisfy the 200 percent/two percentage point test) or increase the 
actual contribution percentage of the nonhighly compensated employees to 
12 percent (to satisfy the 125 percent test).
    Example 3. (i) Employer N maintains a plan that contains a cash or 
deferred arrangement and permits employee contributions. Employer N 
includes elective contributions in compensation as permitted under 
Sec. 1.414(s)-1(c)(4)(i). See Sec. 1.401(k)-1(g)(2)(i). For the 1988 
plan year, the average percentages of compensation contributed to the 
plan by the

[[Page 303]]

highly compensated and nonhighly compensated employees as elective 
contributions and employee contributions are shown in the chart below. 
Elective contributions meet the requirements of paragraph (b)(5) of this 
section.

------------------------------------------------------------------------
                                             Elective        Employee   
                                           Contributions   Contributions
                                             (percent)       (percent)  
------------------------------------------------------------------------
Highly compensated......................              10              10
Nonhighly compensated...................              10               6
------------------------------------------------------------------------

    (ii) The plan fails to meet the requirements of section 401(m) 
because the actual contribution percentage (ACP) of highly compensated 
employees is more than 125 percent of the ACP of the other employees, 
and exceeds the ACP of the other employees by more than two percentage 
points.
    (iii) The plan provides that elective contributions made by 
nonhighly compensated employees may be used to meet the requirements of 
section 401(m) to the extent needed under that section. Under this 
provision, the plan uses elective contributions equal to two percent of 
the compensation of the nonhighly compensated employees in the ACP test. 
After this adjustment, the actual deferral percentages (ADPs) and ACPs 
are as follows:

------------------------------------------------------------------------
                                           ADP (percent)   ACP (percent)
------------------------------------------------------------------------
Highly compensated......................              10              10
Nonhighly compensated...................               8               8
------------------------------------------------------------------------

    (iv) The ACP of the highly compensated employees meets the 
requirements of section 401(m)(2)(A)(i) because it is 125 percent of 
that for nonhighly compensated employees. The ADP of the highly 
compensated employees similarly satisfies the 125 percent test. The plan 
would also meet the requirements of section 401(m) if all elective 
contributions were used in the ACP test. This is because the ACP for the 
highly compensated employees (20 percent) would be 125 percent of the 
ACP for the nonhighly compensated employees (16 percent).
    Example 4. (i) Employer P maintains a plan that includes a cash or 
deferred arrangement. Elective contributions, qualified nonelective 
contributions (QNCs), employee contributions, and matching contributions 
are made to the plan. Employer P includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). The elective 
contributions and QNCs meet the requirements of paragraph (b)(5) of this 
section. For the 1989 plan year, the QNCs, elective contributions, and 
employee and matching contributions, expressed as a percentage of 
compensation, are shown in the following table:

------------------------------------------------------------------------
                                                             Employee/  
                                    QNCs       Elective       Matching  
                                 (percent)  Contributions  Contributions
                                              (percent)      (percent)  
------------------------------------------------------------------------
Highly compensated.............          3            5              6  
Nonhighly compensated..........          3            4              2  
------------------------------------------------------------------------

    (ii) The elective contributions meet the test of section 
401(k)(3)(A)(ii). The employee and matching contributions, however, do 
not meet the actual contribution percentage (ACP) test. P may not use 
any QNCs of the nonhighly compensated employees to meet the ACP test 
because the remaining QNCs would discriminate in favor of the highly 
compensated employees. However, P could make additional QNCs or matching 
contributions of two percent of compensation on behalf of the nonhighly 
compensated employees. Alternatively, P could treat all QNCs for all 
employees and elective contributions equal to one percent of 
compensation for nonhighly compensated employees as matching 
contributions and make additional QNCs of 1.2 percent of compensation on 
behalf of nonhighly compensated employees. The ACPs for highly and 
nonhighly compensated employees would then be nine percent and 7.2 
percent, respectively, thus satisfying the 125 percent test. The actual 
deferral percentages would be five and three percent, respectively, 
which would satisfy the 200 percent/two percentage point test.
    Example 5. (i) Employer P maintains a cash or deferred arrangement. 
Elective contributions, qualified nonelective contributions (QNCs), 
employee contributions, and matching contributions are made to the plan. 
The elective contributions and the QNCs meet the requirements of 
paragraph (b)(5) of this section. For the 1989 plan year, the 
contributions are shown in the following table:

------------------------------------------------------------------------
                                                             Employee/  
                                    QNCs       Elective       matching  
                                 (percent)  contributions  contributions
                                              (percent)      (percent)  
------------------------------------------------------------------------
Highly compensated.............          0            6              6  
Nonhighly compensated..........          3            3              3  
------------------------------------------------------------------------

    (ii) The QNCs may be used in the actual deferral percentage (ADP) 
test, the actual contribution percentage (ACP) test, or a combination of 
the two. If P treats one-third of the QNCs as elective contributions and 
two-thirds as matching contributions, the ADPs for the highly 
compensated and nonhighly compensated employees are six and four 
percent, respectively, and satisfy the 200 percent/two percentage point 
test. Similarly, the ACPs for the two groups are six and five percent, 
respectively, and satisfy the 125 percent test.


[[Page 304]]


    (e) Correction of excess aggregate contributions--(1) General rule--
(i) Permissible correction methods. A plan satisfies the requirements of 
section 401(m)(2) and paragraph (b)(1) of this section with respect to 
the amount of employee and matching contributions under the plan if the 
employer, in accordance with the terms of the plan and paragraph (b)(5) 
of this section, makes qualified nonelective contributions or elective 
contributions that, in combination with employee and matching 
contributions, satisfy the actual contribution percentage test. In 
addition, a plan subject to the requirements of section 401(m) satisfies 
section 401(m)(2) and paragraph (b)(1) of this section if, in accordance 
with the terms of the plan, excess aggregate contributions on behalf of 
highly compensated employees (and the income allocable to these 
contributions) are distributed in accordance with paragraph (e)(3) of 
this section. Matching contributions (and the income allocable to 
matching contributions) that are not vested (determined without regard 
to any increase in vesting that may occur after the date of the 
forfeiture) may also be forfeited to correct excess aggregate 
contributions. Finally, a plan may limit employee or matching 
contributions in a manner that prevents excess aggregate contributions 
from being made.
    (ii) Combination of correction methods. The plan may permit a 
combination of the methods listed in paragraph (e)(1)(i) of this section 
to avoid or correct excess aggregate contributions.
    (iii) Impermissible correction methods. Excess aggregate 
contributions may not be corrected by forfeiting vested matching 
contributions, recharacterizing matching contributions, or not making 
matching contributions required under the terms of the plan. Excess 
aggregate contributions for a plan year may not remain unallocated or be 
allocated to a suspense account for allocation to one or more employees 
in any future year. In addition, excess aggregate contributions may not 
be corrected using the retroactive correction rules of Sec. 1.401(a)(4)-
11(g). See Sec. 1.401(a)(4)-11(g)(3)(vii) and (5). See paragraph (e)(5) 
of this section for the effects of a failure to correct excess aggregate 
contributions. See Sec. 1.411(a)-4(b)(7) regarding permissible 
forfeitures of matching contributions.
    (iv) Partial correction. Any distribution of less than the entire 
amount of excess aggregate contributions (and income) is treated as a 
pro rata distribution of excess aggregate contributions and income.
    (2) Amount of excess aggregate contributions--(i) General rule. The 
amount of excess aggregate contributions for a highly compensated 
employee for a plan year is the amount (if any) by which the employee's 
employee and matching contributions must be reduced for the employee's 
actual contribution ratio to equal the highest permitted actual 
contribution ratio under the plan. To calculate the highest permitted 
actual contribution ratio under a plan, the actual contribution ratio of 
the highly compensated employee with the highest actual contribution 
ratio is reduced by the amount required to cause the employee's actual 
contribution ratio to equal the ratio of the highly compensated employee 
with the next highest actual contribution ratio. If a lesser reduction 
would enable the arrangement to satisfy the actual contribution 
percentage test, only this lesser reduction may be made. This process 
must be repeated until the plan satisfies the actual contribution 
percentage test. The highest actual contribution ratio remaining under 
the plan after leveling is the highest permitted actual contribution 
ratio. For each highly compensated employee, the amount of excess 
aggregate contributions for a plan year is equal to the total employee 
and matching contributions, plus qualified nonelective contributions and 
elective contributions taken into account in determining the employee's 
actual contribution ratio under paragraph (f)(1) of this section, minus 
the amount determined by multiplying the employee's actual contribution 
ratio (determined after application of this paragraph (e)(2)) by the 
compensation used in determining the ratio. In no case may the amount of 
excess aggregate contributions with respect to any highly compensated 
employee exceed the amount of employee and matching contributions made 
on

[[Page 305]]

behalf of the highly compensated employee for the plan year.
    (ii) Coordination with correction of excess contributions. The 
amount of excess aggregate contributions with respect to an employee for 
a plan year is calculated after determining the excess contributions to 
be recharacterized as employee contributions for the plan year.
    (iii) Correction of family members. The determination and correction 
of excess aggregate contributions of a highly compensated employee whose 
actual contribution ratio is determined under the family aggregation 
rules of paragraph (f)(1)(ii)(C) of this section, is accomplished by 
reducing the actual contribution ratio as required under this paragraph 
(e)(2) and allocating the excess aggregate contributions for the family 
group among the family members in proportion to the employee and 
matching contributions of each family member that are combined to 
determine the actual contribution ratio.
    (3) Corrective distribution of excess aggregate contributions (and 
income)--(i) Genera1 rule. Excess aggregate contributions (and income 
allocable thereto) are distributed in accordance with this paragraph 
(e)(3) only if the excess aggregate contributions and allocable income 
are designated by the employer as a distribution of excess aggregate 
contributions (and income), and are distributed to the appropriate 
highly compensated employees after the close of the plan year in which 
the excess aggregate contributions arose and within 12 months after the 
close of that plan year. In the event of a complete termination of the 
plan during the plan year in which an excess aggregate contribution 
arose, the corrective distribution must be made as soon as 
administratively feasible after the date of termination of the plan, but 
in no event later than 12 months after the date of termination. If the 
entire account balance of a highly compensated employee is distributed 
during the plan year in which the excess aggregate contribution arose, 
the distribution is deemed to have been a corrective distribution of 
excess aggregate contributions (and income) to the extent that a 
corrective distribution would otherwise have been required.
    (ii) Income allocable to excess aggregate contributions--(A) General 
rule. The income allocable to excess aggregate contributions is equal to 
the sum of the allocable gain or loss for the plan year and, if the plan 
so provides, the allocable gain or loss for the period between the end 
of the plan year and the date of distribution (the ``gap period'').
    (B) Method of allocating income. A plan may use any reasonable 
method for computing the income allocable to excess aggregate 
contributions, provided that the method does not violate section 
401(a)(4), is used consistently for all participants and for all 
corrective distributions under the plan for the plan year, and is used 
by the plan for allocating income to participants' accounts. See 
Sec. 1.401(a)(4)-1(c)(8).
    (C) Alternative method of allocating income. A plan may allocate 
income to excess aggregate contributions by multiplying the income for 
the plan year (and the gap period, if the plan so provides) allocable to 
employee contributions, matching contributions, and amounts treated as 
matching contributions by a fraction. The numerator of the fraction is 
the excess aggregate contributions for the employee for the plan year. 
The denominator of the fraction is equal to the sum of:
    (1) The total account balance of the employee attributable to 
employee and matching contributions, and amounts treated as matching 
contributions as of the beginning of the plan year; plus
    (2) The employee and matching contributions, and amounts treated as 
matching contributions for the plan year and for the gap period if gap 
period income is allocated.
    (D) Safe harbor method of allocating gap period income. Under the 
safe harbor method, income on excess aggregate contributions for the gap 
period is equal to 10 percent of the income allocable to excess 
aggregate contributions for the plan year (calculated under the method 
described in paragraph (e)(3)(ii)(C) of this section), multiplied by the 
number of calendar months that have elapsed since the end of the plan 
year. For purposes of calculating the number of calendar months that 
have elapsed under the safe harbor method, a corrective distribution 
that is made on or before the fifteenth day of the

[[Page 306]]

month is treated as made on the last day of the preceding month. A 
distribution made after the fifteenth day of the month is treated as 
made on the first day of the next month.
    (E) Allocable income for recharacterized elective contributions. If 
recharacterized elective contributions are distributed as excess 
aggregate contributions, the income allocable to the excess aggregate 
contributions is determined as if recharacterized elective contributions 
had been distributed as excess contributions. Thus, income must be 
allocated to the recharacterized amounts distributed using the methods 
in Sec. 1.401(k)-1(f)(4)(ii).
    (iii) No employee or spousal consent required. A distribution of 
excess aggregate contributions (and income) may be made under the terms 
of the plan without regard to any notice or consent otherwise required 
under sections 411(a)(11) and 417.
    (iv) Treatment of corrective distributions and forfeited 
contributions as employer contributions. Excess aggregate contributions, 
including forfeited matching contributions, are treated as employer 
contributions for purposes of sections 404 and 415 even if distributed 
from the plan. Forfeited matching contributions that are reallocated to 
the accounts of other participants for the plan year in which the 
forfeiture occurs are treated under section 415 as annual additions for 
the participants to whose accounts they are reallocated and for the 
participants from whose accounts they are forfeited.
    (v) Tax treatment of corrective distributions--(A) Genera1 rule. 
Except as otherwise provided in this paragraph (e)(3)(v), a corrective 
distribution of excess aggregate contributions (and income) that is made 
within 2\1/2\ months after the end of the plan year for which the excess 
aggregate contributions were made is includible in the employee's gross 
income for the taxable year of the employee ending with or within the 
plan year for which the excess aggregate contributions were made. A 
corrective distribution of excess aggregate contributions (and income) 
that is made more than 2\1/2\ months after the plan year for which the 
excess aggregate contributions were made is includible in the employee's 
gross income in the taxable year of the employee in which distributed. 
The portion of the distribution that is treated as an investment in the 
contract under section 72 is determined without regard to any plan 
contributions other than those distributed as excess aggregate 
contributions. Regardless of when the corrective distribution is made, 
it is not subject to the early distribution tax of section 72(t) and is 
not treated as a distribution for purposes of applying the excise tax 
under section 4980A. See paragraph (e)(5) of this section for additional 
rules relating to the employer excise tax on amounts distributed more 
than 2\1/2\ months after the end of the plan year.
    (B) Rule for de minimis distributions. If the total excess 
contributions and excess aggregate contributions distributed to a 
recipient under a plan for any plan year are less than $100 (excluding 
income), a corrective distribution of excess aggregate contributions 
(and income) is includible in gross income in the recipient's taxable 
year in which the corrective distribution is made.
    (C) Rule for certain 1987 and 1988 excess aggregate contributions. 
Distributions for plan years beginning in 1987 and 1988 to which the de 
minimis rule of this paragraph (e)(3)(v) of this section would otherwise 
apply may be reported by the recipient, at the recipient's option, 
either in the year described in paragraph (e)(3)(v)(A) of this section, 
or in the year described in paragraph (e)(3)(v)(B) of this section. This 
special rule may be used only for distributions made within 2\1/2\ 
months after the close of the plan year, but not later than April 17, 
1989.
    (vi) No reduction of required minimum distribution. A distribution 
of excess aggregate contributions (and income) is not treated as a 
distribution for purposes of determining whether the plan satisfies the 
minimum distribution requirements of section 401(a)(9).
    (vii) No corrective distribution of matching contributions other 
than excess aggregate contributions. A matching contribution that is an 
excess aggregate contribution may be distributed as provided in section 
401(m)(6) and

[[Page 307]]

Sec. 1.401(m)-1(e)(3). A matching contribution may not be distributed 
merely because the contribution to which it relates is treated as an 
excess contribution, excess deferral, or excess aggregate contribution. 
See Secs. 1.401(k)-1(f)(5)(iii) and 1.411(a)-4(b)(7) regarding 
permissible forfeitures of matching contributions that relate to excess 
contributions, excess deferrals, or excess aggregate contributions.
    (4) Coordination with section 401(a)(4). A matching contribution is 
taken into account under section 401(a)(4) even if it is distributed, 
unless the distributed contribution is an excess aggregate contribution. 
However, the method of distributing excess aggregate contributions 
provided in the plan must satisfy the requirements of section 401(a)(4). 
This requires that after correction each level of matching contributions 
be currently and effectively available to a group of employees that 
satisfies section 410(b). See Sec. 1.401(a)(4)-4(e)(3)(iii)(G). Thus, a 
plan that provides the same rate of matching contributions to all 
employees will not meet the requirements of section 401(a)(4) if 
employee contributions are distributed under this paragraph (e) to 
highly compensated employees to the extent needed to meet the 
requirements of section 401(m)(2), while matching contributions 
attributable to employee contributions remain allocated to the highly 
compensated employees' accounts. See Sec. 1.411(a)-4(b)(7) for a rule 
that allows forfeiture of these matching contributions to avoid a 
violation of section 401(a)(4). See also Sec. 1.401(a)(4)-
11(g)(3)(vii)(B) regarding the use of additional allocations to the 
accounts of nonhighly compensated employees for the purpose of 
correcting a discriminatory rate of matching contributions. A method of 
distributing excess aggregate contributions will not be considered 
discriminatory solely because, in accordance with the terms of the plan, 
unmatched employee contributions that exceed the highest rate at which 
employee contributions are matched are distributed before matched 
employee contributions, or matching contributions are distributed (or 
forfeited) prior to employee contributions. See Example 6 in paragraph 
(e)(6) of this section.
    (5) Failure to correct--(i) Failure to correct within 2\1/2\ months 
after end of plan year. If a plan does not correct excess aggregate 
contributions within 2\1/2\ months after the close of the plan year for 
which the excess aggregate contributions are made, the employer will be 
liable for a 10 percent excise tax on the amount of the excess aggregate 
contributions. See section 4979 and Sec. 54.4979-1. Qualified 
nonelective contributions properly taken into account under paragraph 
(b)(5) of this section for a plan year may enable a plan to avoid having 
excess aggregate contributions, even if the contributions are made after 
the close of the 2\1/2\ month period.
    (ii) Failure to correct within 12 months after end of plan year. If 
excess aggregate contributions are not corrected within 12 months after 
the close of the plan year for which they were made, the plan will fail 
to meet the requirements of section 401(a)(4) for the plan year for 
which the excess aggregate contributions were made and all subsequent 
plan years in which the excess aggregate contributions remain in the 
plan.
    (6) Examples. The principles of this paragraph (e) are illustrated 
by the following examples. Assume in each example that no income or loss 
is allocable to elective, employee, or matching contributions.

    Example 1. (i) Employer A maintains a thrift plan that does not 
include a cash or deferred arrangement. In 1990, the actual contribution 
percentage (ACP) for nonhighly compensated employees is four percent. 
Thus, the ACP for the group of highly compensated employees may not 
exceed six percent. The three highly compensated employees who 
participate have the following compensation, contributions, and actual 
contribution ratios (ACRs):

----------------------------------------------------------------------------------------------------------------
                                                                                 Employee and        Actual     
                          Employee                              Compensation       matching       contribution  
                                                                                contributions    ratio (percent)
----------------------------------------------------------------------------------------------------------------
A...........................................................          100,000           10,000             10   
B...........................................................           90,000            6,300              7   

[[Page 308]]

                                                                                                                
C...........................................................           75,000            3,750              5   
                                                                                               -----------------
    Average.................................................  ...............  ...............              7.33
----------------------------------------------------------------------------------------------------------------

    (ii) The maximum amount of employee and matching contributions 
permitted on behalf of A, B, and C is determined by reducing 
contributions in order of their ACRs, beginning with the highest ACR. 
Thus, A's contribution is first reduced to $7,000 or 7.0 percent. Since 
the resulting ACP of 6.33 percent still exceeds the permitted highly 
compensated ACP of six percent, the contributions allocated to A and B 
must be further reduced to 6.5 percent. This results in an ACP of six 
percent, which meets the 200 percent/two percentage point test. The 
excess aggregate contributions for A and B are $3,500 and $450, 
respectively.
    Example 2. (i) Employee A is the sole highly compensated participant 
in a cash or deferred arrangement maintained by Employer X. The plan 
that includes the arrangement, Plan X, provides a fully vested matching 
contribution equal to 50 percent of elective contributions. Plan X is a 
calendar year plan. Employer X includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). See 
Sec. 1.401(k)-1(g)(2)(i). Plan X corrects excess contributions by 
recharacterization. For the 1988 plan year, A's compensation is $58,333, 
and A's elective contributions are $7,000. The actual deferral 
percentages and actual contribution percentages of A and other employees 
under Plan X are shown below:

------------------------------------------------------------------------
                                                  Actual       Actual   
                                                 deferral   contribution
                                                percentage   percentage 
------------------------------------------------------------------------
Employee A....................................         12            6  
Nonhighly compensated.........................          8            4  
------------------------------------------------------------------------

    (ii) In February 1989, Employer X determines that A's actual 
deferral ratio must be reduced to 10 percent, or $5,833, which requires 
a recharacterization of $1,167 as an employee contribution. This 
increases A's actual contribution ratio to eight percent ($3,500 in 
matching contributions plus $1,167 recharacterized as employee 
contributions, divided by $58,333 in compensation). Since A's actual 
contribution ratio must be limited to six percent for Plan X to satisfy 
the actual contribution percentage test, Plan X must distribute $1,167 
of A's employee and matching contributions. If $1,167 in matching 
contributions is distributed, this will correct the excess aggregate 
contributions and will not result in a discriminatory rate of matching 
contributions. See Example 8.
    Example 3. Same as Example 2, except that in 1988 A also had 
elective contributions of $1,313 under Plan Y, maintained by an employer 
unrelated to X. In January 1989, A requests and receives a distribution 
of $1,000 in excess deferrals from Plan X. Pursuant to the terms of Plan 
X, A forfeits the $500 match on the excess deferrals to correct a 
discriminatory rate of match (see Example 8). The $1,167 that would 
otherwise have been recharacterized for Plan X to satisfy the actual 
deferral percentage test is reduced by the $1,000 already distributed as 
an excess deferral, leaving $167 to be recharacterized. See 
Sec. 1.401(k)-1(f)(5)(i). Pursuant to the terms of Plan X, A forfeits 
the $83.50 match on the recharacterized $167 to correct a discriminatory 
rate of match. A's actual contribution ratio is now 5.29 percent 
($2,916.50 ($3,500-$500-$83.50)) in matching contributions plus $167 in 
employee contributions, divided by $58,333 in compensation. Since Plan X 
satisfies the actual contribution percentage test, no further 
distribution is required or permitted.
    Example 4. Same as Example 3, except that A does not request a 
distribution of excess deferrals until March 1989. Employer X has 
already recharacterized $1,167 as employee contributions. Under 
Sec. 1.402(g)-1(e)(6), the amount of excess deferrals is reduced by the 
amount of excess contributions that are recharacterized. Because the 
amount recharacterized is greater than the excess deferrals, Plan X is 
neither required nor permitted to make a distribution of excess 
deferrals, and the recharacterization has corrected the excess 
deferrals.
    Example 5. For the 1987 plan year, Employee B defers $7,000 under 
Plan C and $1,000 under plan D. Plans C and D are maintained by 
unrelated Employers C and D; both Plans C and D have calendar plan 
years. Plan C provides a fully vested, 100 percent matching contribution 
and does not take elective contributions into account under section 
401(m) or take matching contributions into account under section 401(k). 
Employer C determines that B has excess contributions of $600 and excess 
aggregate contributions of $1,600. B timely requests and receives a 
distribution of the $1,000 excess deferral from Plan C, and pursuant to 
the terms of Plan C, forfeits the corresponding $1,000 matching 
contribution to correct a discriminatory rate of match (see Example 8). 
Plan C provides that excess

[[Page 309]]

contributions and excess aggregate contributions are corrected by 
distribution. No distribution is required or permitted to correct the 
excess contributions because $1,000 has been distributed from this plan 
as excess deferrals. The distribution required to correct the excess 
aggregate contributions (after forfeiting the matching contribution) is 
$600 ($1,600 in excess aggregate contributions minus $1,000 in forfeited 
matching contributions). If B had corrected the excess deferrals of 
$1,000 by withdrawing $1,000 from Plan D, Plan C would have had to 
correct the $600 excess contributions in Plan C by distributing $600. 
Since B then would have forfeited $600 (instead of $1,000) in matching 
contributions, B would have had $1,000 ($1,600 in excess aggregate 
contributions minus $600 in forfeited matching contributions) remaining 
of excess aggregate contributions in Plan C. These would have been 
corrected by distributing an additional $1,000 from Plan C.
    Example 6. Employee B is the sole highly compensated employee in a 
thrift plan under which the employer matches 100 percent of employee 
contributions up to two percent of compensation, and 50 percent of 
employee contributions up to the next four percent of compensation. For 
the 1988 plan year, B has compensation of $100,000. B makes an employee 
contribution of $7,000, or seven percent, and receives a four percent 
matching contribution of $4,000. Thus, B's actual contribution ratio 
(ACR) is 11 percent. The actual contribution percentage for the 
nonhighly compensated employees is five percent, and the employer 
determines that B's ACR must be reduced to seven percent to comply with 
the rules of section 401(m). In this case, the plan satisfies the 
requirements of this paragraph if it distributes the unmatched employee 
contributions of $1,000, and $2,000 of matched employee contributions 
with their related matches of $1,000. This would leave B with four 
percent employee contributions, and three percent matching 
contributions, for an ACR of seven percent. The plan could instead 
distribute all matching contributions. The plan would fail to meet the 
requirements of this paragraph if it distributed $4,000 (four percent) 
of B's employee contributions and none of B's matching contributions 
because this would result in a discriminatory rate of matching 
contributions. See Sec. 1.401(m)-1(e)(2) and (4). See also Example 8.
    Example 7. (i) Employee C is a highly compensated employee in 
Employer X's thrift plan, which matches 100 percent of employee 
contributions up to five percent of compensation. The matching 
contribution is vested at the rate of 20 percent per year. In 1991, C 
makes $5,000 in employee contributions and receives $5,000 of matching 
contributions. C is 60 percent vested in the matching contributions at 
the end of the 1991 plan year.
    (ii) In February 1992, X determines that C has excess aggregate 
contributions of $1,000. The plan provides that only matching 
contributions will be distributed as excess aggregate contributions.
    (iii) X has two options available in distributing C's excess 
contributions. The first option is to distribute $600 of vested matching 
contributions and forfeit $400 of nonvested matching contributions. 
These amounts are in proportion to C's vested and nonvested interests in 
all matching contributions. The second option is to distribute $1,000 of 
vested matching contributions, leaving the nonvested matching 
contributions in the plan.
    (iv) If the second option is chosen, the plan must also provide a 
separate vesting schedule for vesting these nonvested matching 
contributions. This is necessary because the nonvested matching 
contributions must vest as rapidly as they would have had no 
distribution been made. Thus, 50 percent must vest in each of the next 
two years.
    (v) The plan will not satisfy the nondiscriminatory availability 
requirement of section 401(a)(4) if only nonvested matching 
contributions are distributed because the effect is that matching 
contributions for highly compensated employees vest more rapidly than 
those for nonhighly compensated employees. See Sec. 1.401(m)-1(e)(4).
    Example 8. (i) Employer B maintains a calendar year profit sharing 
plan that includes a cash or deferred arrangement. Elective 
contributions are matched at the rate of 100 percent. After-tax employee 
contributions are permitted under the plan only for nonhighly 
compensated employees and are matched at the same rate. No employees 
make excess deferrals. Employee A, a highly compensated employee, makes 
an $8,000 elective contribution and receives an $8,000 matching 
contribution.
    (ii) Employer B performs the actual deferral percentage (ADP), the 
actual contribution percentage (ACP), and the multiple use tests. To 
correct failures of the ADP and ACP tests, the plan distributes to A 
$1,000 of excess contributions and $500 of excess aggregate 
contributions. After the distributions, A's contributions for the year 
are $7,000 of elective contributions and $7,500 of matching 
contributions. As a result, A has received a higher effective rate of 
matching contributions than nonhighly compensated employees ($7,000 of 
elective contributions matched by $7,500 is an effective matching rate 
of 107 percent). If this amount remains in A's account without 
correction, it will cause the plan to fail to satisfy section 401(a)(4), 
because only a highly compensated employee receives the higher matching 
contribution rate. The remaining $500 matching contribution may be 
forfeited (but not distributed) under section 411(a)(3)(G), if the plan 
so provides. The plan could instead correct the discriminatory rate of 
matching contributions

[[Page 310]]

by making additional allocations to the accounts of nonhighly 
compensated employees. See Sec. 1.401(a)(4)-11(g)(3)(vii)(B) and (6), 
Example 7.

    (f) Definitions. The following definitions apply for purposes of 
this section and Sec. 1.401(m)-2 except as otherwise specifically 
provided:
    (1) Actual contribution percentage--(i) General rule. The actual 
contribution percentage for a group of employees for a plan year is the 
average of the actual contribution ratios of the employees in the group. 
For plan years beginning after December 31, 1988, or such later date 
provided in paragraph (g) of this section, actual contribution ratios 
and the actual contribution percentage for a group are calculated to the 
nearest one-hundredth of a percentage point.
    (ii) Actual contribution ratio--(A) General rule. An employee's 
actual contribution ratio is the sum of the employee and matching 
contributions allocated to the employee's account for the plan year, and 
the qualified nonelective and elective contributions treated as matching 
contributions for the plan year, divided by the employee's compensation 
for the plan year. If an eligible employee makes no employee 
contributions and no matching, qualified nonelective contributions, or 
elective contributions are taken into account with respect to the 
employee, the actual contribution ratio of the employee is zero. See 
paragraphs (b)(4), (b)(5), and (f)(2) of this section for rules 
regarding the employee and matching contributions, qualified nonelective 
and elective contributions, and compensation that are taken into account 
in calculating this fraction.
    (B) Highly compensated employee eligible under more than one plan. 
The actual contribution ratio of a highly compensated employee who is 
eligible to participate in more than one plan of an employer to which 
employee or matching contributions are made is calculated by treating 
all the plans in which the employee is eligible to participate as one 
plan. However, plans that are not permitted to be aggregated under 
Sec. 1.410(b)-7(c), as modified in Sec. 1.401(k)-1(g)(11), are not 
aggregated for this purpose. For example, if a highly compensated 
employee with compensation of $80,000 may receive matching contributions 
under two plans of an employer, the employee's actual contribution ratio 
under each plan is calculated by dividing the employee's total matching 
contributions under both plans by $80,000, unless the plans are required 
to be disaggregated. In that case, the actual contribution ratio of the 
employee under each plan is to be calculated by dividing the employee's 
matching contributions under that plan by $80,000. See paragraph (b)(3) 
of this section for the treatment of certain multiple plans. For plan 
years beginning after December 31, 1988, or such later date provided in 
paragraph (g) of this section, if a highly compensated employee 
participates in two or more plans that have different plan years, this 
paragraph (f)(1)(ii) is applied by treating all plans whose plan years 
end with or within the same calendar year as a single plan.
    (C) Employees subject to family aggregation rules--(1) Aggregation 
of employee contributions and other amounts. For plan years beginning 
after December 31, 1986, or such later date provided in paragraph (g) of 
this section, if a highly compensated employee is subject to the family 
aggregation rules of section 414(q)(6) because that employee is either a 
five-percent owner or one of the 10 most highly compensated employees, 
the combined actual contribution ratio for the family group (treated as 
one highly compensated employee) must be determined by combining the 
employee contributions, matching contributions, amounts treated as 
matching contributions, and compensation of all family members.
    (2) Effect on actual contribution percentage of nonhighly 
compensated employees. The employee and matching contributions, amounts 
treated as matching contributions, and compensation of all family 
members are disregarded for purposes of determining the actual 
contribution percentage for the group of highly compensated employees, 
and the group of nonhighly compensated employees.
    (3) Multiple family groups. If an employee is required to be 
aggregated as a member of more than one family group in a plan, all 
eligible employees who

[[Page 311]]

are members of those family groups that include that employee are 
aggregated as one family group.
    (2) Compensation. The term compensation means compensation as 
defined in Sec. 1.401(k)-1(g)(2)(i).
    (3) Elective contributions. The term ``elective contribution'' means 
elective contribution as defined in Sec. 1.401(k)-1(g)(3).
    (4) Eligible employee--(i) General rule. The term ``eligible 
employee'' means an employee who is directly or indirectly eligible to 
make an employee contribution or to receive an allocation of matching 
contributions (including matching contributions derived from 
forfeitures) under the plan for a plan year. For example, if an employee 
must perform ministerial or mechanical acts (e.g., formal application 
for participation or consent to payroll withholding) in order to be 
eligible to make an employee contribution for a plan year, the employee 
is an eligible employee for the plan year without regard to whether the 
employee performs these acts. An employee who is unable to make an 
employee contribution or to receive an allocation of matching 
contributions because the employee has not contributed to another plan 
is also an eligible employee. By contrast, if an employee must perform 
additional service (e.g., satisfy a minimum period of service 
requirement) in order to be eligible to make an employee contribution or 
to receive an allocation of matching contributions for a plan year, the 
employee is not an eligible employee for the plan year unless the 
service is actually performed. An employee who would be eligible to make 
employee contributions but for a suspension due to a distribution, a 
loan, or an election not to participate in the plan, is an eligible 
employee for purposes of section 401(m) for a plan year even though the 
employee may not make an employee contribution or receive an allocation 
of matching contributions by reason of the suspension. Finally, an 
employee does not fail to be an eligible employee merely because the 
employee may receive no additional annual additions because of section 
415(c)(1) or 415(e).
    (ii) Certain one-time elections. An employee is not an eligible 
employee merely because the employee, upon commencing employment with 
the employer or upon the employee's first becoming eligible under any 
plan of the employer providing for employee or matching contributions, 
is given a one-time opportunity to elect, and the employee does in fact 
elect, not to be eligible to make employee contributions or to receive 
allocations of matching contributions under the plan or any other plan 
maintained by the employer (including plans not yet established) for the 
duration of the employee's employment with the employer. In no event is 
an election made after December 23, 1994 treated as a one-time 
irrevocable election under this paragraph if the election is made by an 
employee who previously became eligible under another plan (whether or 
not terminated) of the employer.
    (5) Employee. The term ``employee'' means an employee as defined in 
Sec. 1.401(k)-1(g)(5).
    (6) Employee contributions. The term ``employee contribution'' means 
any mandatory or voluntary contribution to the plan that is treated at 
the time of contribution as an after-tax employee contribution (e.g., by 
reporting the contribution as taxable income subject to applicable 
withholding requirements) and is allocated to a separate account to 
which the attributable earnings and losses are allocated. See 
Sec. 1.401(k)-1(a)(2)(ii). The term includes:
    (i) Employee contributions to the defined contribution portion of a 
plan described in section 414(k);
    (ii) Employee contributions to a qualified cost-of-living 
arrangement described in section 415(k)(2)(B);
    (iii) Employee contributions applied to the purchase of whole life 
insurance protection or survivor benefit protection under a defined 
contribution plan;
    (iv) Amounts attributable to excess contributions within the meaning 
of section 401(k)(8)(B) that are recharacterized as employee 
contributions; and
    (v) Employee contributions to an annuity contract described in 
section 403(b).

The term does not include repayment of loans, repayment of distributions 
described in section 411(a)(7)(C), or employee contributions that are 
transferred to a plan from another plan. For

[[Page 312]]

purposes of this paragraph (f)(6), employee contributions described in 
paragraph (f)(6)(ii) of this section are deemed contributed to a defined 
contribution plan.
    (7) Employer. The term ``employer'' means the employer as defined in 
Sec. 1.401(k)-1(g)(6).
    (8) Excess aggregate contributions. The term ``excess aggregate 
contribution'' means, with respect to any plan year, the excess of the 
aggregate amount of the employee and matching contributions (and any 
qualified nonelective contribution or elective deferral taken into 
account in computing the contribution percentage) actually made on 
behalf of highly compensated employees for the plan year, over the 
maximum amount of contributions permitted under the limitations of 
section 401(m)(2)(A). The amount of excess aggregate contributions for 
each highly compensated employee is determined by using the method 
described in paragraph (e)(2) of this section. For purposes of this 
paragraph, qualified matching contributions treated as elective 
contributions in accordance with Sec. 1.401(k)-1(b)(5) are disregarded.
    (9) Excess contributions. The term ``excess contribution'' means an 
excess contribution as defined in Sec. 1.401(k)-1(g)(7)(i).
    (10) Excess deferrals. The term ``excess deferrals'' means excess 
deferral as defined in Sec. 1.402(g)-1(e)(1)(iii).
    (11) Highly compensated employee. The term ``highly compensated 
employee'' means a highly compensated employee as defined in section 
414(q).
    (12) Matching contributions--(i) In general. The term ``matching 
contribution'' means:
    (A) Any employer contribution (including a contribution made at the 
employer's discretion) to a defined contribution plan on account of an 
employee contribution to a plan maintained by the employer;
    (B) Any employer contribution (including a contribution made at the 
employer's discretion) to a defined contribution plan on account of an 
elective deferral (as defined in Sec. 1.402(g)-1(b)); and
    (C) Any forfeiture allocated on the basis of employee contributions, 
matching contributions, or elective contributions.
    (ii) Employer contributions made on account of employee or elective 
contributions. For purposes of paragraph (f)(12)(i) of this section, 
whether an employer contribution is made on account of an employee 
contribution or an elective contribution is determined on the basis of 
all relevant facts and circumstances, including the relationship between 
the employer contribution and employee actions outside the plan. Thus, 
for example, an employer contribution made to a defined contribution 
plan on account of contributions made by an employee under an employer-
sponsored savings arrangement that are not held in a plan that is 
intended to be a qualified plan or a plan described in Sec. 1.402(g)-
1(b) is not a matching contribution. Notwithstanding the foregoing, for 
plan years beginning before January 1, 1992, an employer may elect to 
take into account as matching contributions, contributions made to a 
plan pursuant to an arrangement under which the employer makes 
contributions to the plan on account of either employee contributions to 
the plan or contributions made by an employee to an employer-sponsored 
savings arrangement that are not held in the plan, provided that the 
arrangement was in effect prior to August 8, 1988.
    (iii) Contributions used to meet the requirements of section 416. 
For plan years beginning after December 31, 1988, a contribution or 
allocation that is used to meet the minimum contribution or benefit 
requirement of section 416 is not treated as made on account of an 
employee or elective contribution and therefore is not a matching 
contribution.
    (13) Nonelective contributions. The term ``nonelective 
contribution'' means nonelective contributions as defined in 
Sec. 1.401(k)-1(g)(10).
    (14) Plan. The term ``plan'' means a plan as defined in 
Sec. 1.401(k)-1(g)(11).
    (15) Qualified nonelective contributions. The term ``qualified 
nonelective contribution'' means qualified nonelective contributions as 
defined in Sec. 1.401(k)-1(g)(13)(ii).

[[Page 313]]

    (16) Section 401(k) plan. The term section 401(k) plan means a 
section 401(k) plan within the meaning of Sec. 1.410(b)-9.
    (17) Section 401(m) plan. The term section 401(m) plan means a 
section 401(m) plan within the meaning of Sec. 1.410(b)-9.
    (g) Effective dates--(1) General rule. Except as provided in 
paragraphs (g)(2), (g)(3), (g)(4), and (g)(5) of this section, or as 
specifically provided otherwise in this section, this section is 
effective for plan years beginning after December 31, 1986.
    (2) Collectively bargained plans. In the case of a plan maintained 
pursuant to one or more collective bargaining agreements between 
employee representatives and one or more employers ratified before March 
1, 1986, this section does not apply to years beginning before the 
earlier of--
    (i) January 1, 1989, or
    (ii) The date on which the last collective bargaining agreement 
terminates (determined without regard to any extension thereof after 
February 28, 1986).
    (3) Certain annuity contracts--(i) In the case of an annuity 
contract under section 403(b), not maintained pursuant to a collective 
bargaining agreement, except as otherwise provided in paragraph (g)(5) 
of this section, this section applies to plan years beginning after 
December 31, 1988.
    (ii) In the case of an annuity contract described in section 403(b) 
maintained pursuant to a collective bargaining agreement described in 
paragraph (g)(2)(i) of this section, this section does not apply to 
years beginning before the earlier of
    (A) The later of--
    (1) January 1, 1989, or
    (2) The date determined under paragraph (g)(2)(ii) of this section; 
or
    (B) January 1, 1991.
    (4) State and local government plans. A governmental plan described 
in section 414(d), including a plan subject to section 403(b)(12)(A)(i) 
(nonelective plan) is treated as satisfying section 401(m) for plan 
years beginning before the later of January 1, 1996, or 90 days after 
the opening of the first legislative session beginning on or after 
January 1, 1996, of the governing body with authority to amend the plan, 
if that body does not meet continuously. For purposes of this paragraph 
(g)(4), the term governing body with authority to amend the plan means 
the legislature, board, commission, council, or other governing body 
with authority to amend the plan.
    (5) Transition rule for plan years beginning before 1992--(i) 
General rule. For plan years beginning before January 1, 1992, a 
reasonable interpretation of the rules set forth in section 401 (k) and 
(m) of the Internal Revenue Code (as in effect during those years) may 
be relied upon to determine whether a plan was qualified during those 
years.
    (ii) Restructuring--(A) General rule. In determining whether the 
requirements of section 401(m) are satisfied for plan years beginning 
before January 1, 1992, a plan may be treated as consisting of two or 
more component plans, each consisting of all of the allocations and 
other benefits, rights, and features provided to a group of employees 
under the plan. See Sec. 1.401(a)(4)-9(c). An employee may not be 
included in more than one component plan of the same plan for a plan 
year under this method. If this method is used for a plan year, the 
requirements of section 401(m) are applied separately with respect to 
each component plan for the plan year. Thus, for example, the actual 
contribution ratio and the amount of excess aggregate contributions, if 
any, of each eligible employee under each component plan must be 
determined as if the component plan were a separate plan. This method 
applies solely for purposes of section 401(m). Thus, for example, the 
requirements of section 410(b) must still be satisfied by the entire 
plan.
    (B) Identification of component plans--(1) Minimum coverage 
requirement. The group of eligible employees described in Sec. 1.401(m)-
1(f)(4) under each component plan must separately satisfy the 
requirements of section 410(b) as if the component plan were a separate 
plan. Component plans may not be aggregated to satisfy this requirement.
    (2) Commonality requirement. The group of employees used to identify 
a component plan must share some common attribute or attributes, other 
than similar actual contribution ratios. Permissible common attributes 
include, for example, employment at the same work site, in the same job 
category, for the same division or subsidiary, or for

[[Page 314]]

a unit acquired in a specific merger or acquisition, employment for the 
same number of years, compensation under the same method (e.g., salaried 
or hourly), coverage under the same contribution formula, and attributes 
that could be used as the basis of a classification that would be 
treated as reasonable under Sec. 1.410(b)-4(b). Employees whose only 
common attribute is the same or similar actual contribution ratios, or 
another attribute having substantially the same effect as the same or 
similar actual contribution ratios, are not considered as sharing a 
common attribute for this purpose. This rule applies regardless of 
whether the component plan or the plan of which it is a part satisfies 
the ratio or percentage test of section 410(b).

[T.D. 8357, 56 FR 40534, Aug. 15, 1991, as amended by T.D. 8376, 56 FR 
63432, Dec. 4, 1991; T.D. 8357, 57 FR 10290, Mar. 25, 1992; T.D. 8581, 
59 FR 66175, Dec. 23, 1994; TD 8581, 60 FR 12416, Mar. 7, 1995]



Sec. 1.401(m)-2  Multiple use of alternative limitation.

    (a) In general. The rules in this section prevent the multiple use 
of the alternative methods of compliance with sections 401 (k) and (m) 
contained in section 401(k)(3)(A)(ii)(II) and 401(m)(2)(A)(ii) 
respectively. Paragraph (b) of this section discusses the scope of this 
section and contains the general rule for determination of a multiple 
use of the alternative limitation. Paragraph (c) of this section 
contains rules for the correction of multiple use. The consequences of 
multiple use of the alternative methods of compliance are described in 
Sec. 1.401(m)-1(a)(1).
    (b) General rule for determination of multiple use--(1) In general. 
(i) Multiple use of the alternative limitation occurs if all of the 
conditions of this paragraph (b)(1) are satisfied:
    (A) One or more highly compensated employees of the employer are 
eligible employees in both a cash or deferred arrangement subject to 
section 401(k) and a plan maintained by the employer subject to section 
401(m).
    (B) The sum of the actual deferral percentage of the entire group of 
eligible highly compensated employees under the arrangement subject to 
section 401(k) and the actual contribution percentage of the entire 
group of eligible highly compensated employees under the plan subject to 
section 401(m) exceeds the aggregate limit of paragraph (b)(3) of this 
section.
    (C) The actual deferral percentage of the entire group of eligible 
highly compensated employees under the arrangement subject to section 
401(k) exceeds the amount described in section 401(k)(3)(A)(ii)(I).
    (D) The actual contribution percentage of the entire group of 
eligible highly compensated employees under the arrangement subject to 
section 401(m) exceeds the amount described in section 401(m)(2)(A)(i).
    (ii) The actual deferral percentage and actual contribution 
percentage of the group of eligible highly compensated employees are 
determined after use of qualified nonelective contributions and 
qualified matching contributions to meet the requirements of section 
401(k)(3)(A)(ii) and after use of qualified nonelective contributions 
and elective contributions to meet the requirements of section 
401(m)(2)(A). The actual deferral percentage and actual contribution 
percentage of the group of eligible highly compensated employees are 
determined after any corrective distribution or forfeiture of excess 
deferrals, excess contributions, or excess aggregate contributions and 
after any recharacterization of excess contributions required without 
regard to this section. Only plans and arrangements maintained by the 
same employer are taken into account under this paragraph (b)(1). If the 
employer maintains two or more plans after application of the rules 
under Sec. 1.401(k)- 1(g)(11), multiple use is tested separately with 
respect to each plan. Thus, for example, if an employer maintains a cash 
or deferred arrangement with matching contributions, under which 
elective contributions may be made under either an ESOP or a non-ESOP, 
multiple use is tested separately with respect to elective contributions 
and matching contributions under the ESOP, and with respect to elective 
contributions and matching contributions under the non-ESOP.
    (2) Alternative limitation. For purposes of this section, the term 
``alternative limitation'' means the 200 percent or 2

[[Page 315]]

percentage point limits in sections 401(k)(3)(A)(ii)(ii) and 
401(m)(2)(A)(ii).
    (3) Aggregate limit--(i) In general. For purposes of this section, 
the aggregate limit is the greater of:
    (A) The sum of--
    (1) 1.25 times the greater of the relevant actual deferral 
percentage or the relevant actual contribution percentage, and
    (2) Two percentage points plus the lesser of the relevant actual 
deferral percentage or the relevant actual contribution percentage. In 
no event, however, may this amount exceed twice the lesser of the 
relevant actual deferral percentage or the relevant actual contribution 
percentage; or
    (B) The sum of--
    (1) 1.25 times the lesser of the relevant actual deferral percentage 
or the relevant actual contribution percentage, and
    (2) Two percentage points plus the greater of the relevant actual 
deferral percentage or the relevant actual contribution percentage. In 
no event, however, may this amount exceed twice the greater of the 
relevant actual deferral percentage or the relevant actual contribution 
percentage.
    (ii) Relevant actual deferral percentage and relevant actual 
contribution percentage defined. For purposes of paragraph (b)(3)(i) of 
this section, the term ``relevant actual deferral percentage'' means the 
actual deferral percentage of the group of nonhighly compensated 
employees eligible under the arrangement subject to section 401(k) for 
the plan year, and the term ``relevant actual contribution percentage'' 
means the actual contribution percentage of the group of nonhighly 
compensated employees eligible under the plan subject to section 401(m) 
for the plan year beginning with or within the plan year of the 
arrangement subject to section 401(k).
    (iii) Examples. The provisions of this paragraph (b) are illustrated 
by the following examples:

    Example 1. (i) Assume that Employer G maintains a plan that contains 
a cash or deferred arrangement under which the actual deferral 
percentages of highly compensated and nonhighly compensated employees 
are 5.5 and four percent respectively. The plan also permits employee 
contributions, and the actual contribution percentages for the two 
groups are 4.2 and three percent respectively. The multiple use of the 
alternative limitation is tested as follows:

(1) Greater of the relevant actual deferral percentage or the           
 relevant actual contribution percentage........................    4.00
(2) 1.25 times (1)..............................................    5.00
(3) Lesser of the relevant actual deferral percentage or the            
 relevant actual contribution percentage........................    3.00
(4) (3) plus two percentage points..............................    5.00
(5) (2)+(4).....................................................   10.00
(6) 1.25 times (3)..............................................    3.75
(7) (1) plus two percentage points..............................    6.00
(8) (6)+(7).....................................................    9.75
(9) Aggregate limit greater of (5) or (8).......................   10.00
                                                                        

    (ii) In this case, the sum of the actual deferral percentage and the 
actual contribution percentage of highly compensated employees is 9.70 
percent, which is less than the aggregate limit. Therefore, there is no 
multiple use of the alternative limitation.
    Example 2. Employer F maintains a plan subject to section 401(k) 
with a plan year beginning January 1, and a plan subject to section 
401(m) with a plan year beginning July 1. The plan subject to section 
401(k) does not correct excess contributions by recharacterization. The 
first actual deferral percentage taken into account is that for the plan 
year beginning January 1, 1989. The first actual contribution percentage 
taken into account is that for the plan year beginning July 1, 1989.
    Example 3. (i) Employer E maintains a plan that contains a cash or 
deferred arrangement and provides for matching contributions. The actual 
deferral and contribution percentages for a plan year are as follows:

------------------------------------------------------------------------
                                                  Actual       Actual   
                                                 deferral   contribution
                                                percentage   percentage 
------------------------------------------------------------------------
Highly compensated...........................          3.6          1.69
Nonhighly compensated........................          1.8          1.35
------------------------------------------------------------------------

    (ii) The actual deferral percentage of the highly compensated 
employees exceeds the normal limit (1.25 times 1.8, or 2.25%) but not 
the alternative limit (two plus 1.8, but not more than twice 1.8, or 
3.6%). The actual contribution percentage of the highly compensated 
employees does not exceed the normal limit (1.25 times 1.35, or 1.69%). 
Accordingly, the plan satisfies both the actual deferral and 
contribution percentage tests. Since the actual contribution percentage 
of the highly compensated employees does not exceed the normal limit, 
condition (iv) of paragraph (b)(1) of this section is not satisfied. 
Therefore, there is no multiple use of the alternative limitation.


[[Page 316]]


    (c) Correction of multiple use--(1) In general. If multiple use of 
the alternative limitation occurs with respect to two or more plans or 
arrangements maintained by an employer, it must be corrected by reducing 
the actual deferral percentage, the actual contribution percentage of 
highly compensated employees, or a combination of the two, in the manner 
described in paragraph (c)(3) of this section. Instead of making this 
reduction, the employer may eliminate the multiple use of the 
alternative limitation by making qualified nonelective contributions in 
accordance with Sec. 1.401(k)-1(b)(5) and (f)(1) or Sec. 1.401(m)-
1(b)(5) and (e)(1).
    (2) Treatment of required reduction. The required reduction is 
treated as an excess contribution under the arrangement subject to 
section 401(k) or excess aggregate contribution under the plan subject 
to section 401(m). However, if an excess contribution arising under this 
section is recharacterized as an employee contribution, the 
recharacterized amount is treated as an excess aggregate contribution.
    (3) Required reduction. The amount of the reduction of the actual 
deferral percentage of the entire group of highly compensated employees 
eligible in the arrangement subject to section 401(k) is calculated in 
the manner described in Sec. 1.401(k)-1(f)(2) or the amount of the 
reduction of the actual contribution percentage of the entire group of 
highly compensated employees eligible in the plan subject to section 
401(m) is calculated in the manner described in Sec. 1.401(m)-1(e)(2), 
as designated in the plan, so that there is no multiple use of the 
alternative limitation. The employer may elect to reduce the actual 
deferral ratios or the actual contribution ratios, as designated in the 
plan, either for all highly compensated employees under the plan or 
arrangements subject to reduction or for only those highly compensated 
employees who are eligible in both the arrangement subject to section 
401(k) and the plan subject to section 401(m).
    (4) Examples. The principles of this paragraph (c) are illustrated 
by the following examples. In all cases, the employer maintains both an 
arrangement subject to section 401(k) and a plan subject to section 
401(m). Assume that there is no income or loss allocable to the 
elective, employee, or matching contributions.

    Example 1. (i) All employees of Employer Q are eligible in both an 
arrangement subject to section 401(k) and a plan subject to section 
401(m). Both plans have a calendar plan year. The plans provide that 
multiple use of the alternative limitation will be corrected in the plan 
subject to section 401(m) and that any required reduction in actual 
contribution ratios will apply only to employees eligible to participate 
in both arrangements. Employer Q includes elective contributions in 
compensation as permitted under Sec. 1.414(s)-1(c)(4)(i). See 
Sec. 1.401(k)-1(g)(2)(i). Employees X and Y are highly compensated. Each 
received compensation of $100,000, deferred $6,000, received a $3,000 
matching contribution, and made employee contributions of $3,000. Actual 
deferral and contribution percentages under the arrangement and plan for 
the 1989 plan year are shown below. No excess deferrals, excess 
contributions, or excess aggregate contributions have yet been required 
to be distributed, forfeited, or recharacterized under the plan.

------------------------------------------------------------------------
                                                  Actual       Actual   
                                                 deferral   contribution
                                                percentage   percentage 
------------------------------------------------------------------------
Highly compensated............................          6            6  
Nonhighly compensated.........................          4            4  
------------------------------------------------------------------------

    (ii) The aggregate limit and amount required, to be corrected are 
determined as follows:


                                                                        
                Step 1: Determination of Aggregate Limit                
                                                                        
(1) Greater of relevant actual deferral percentage or relevant          
 actual contribution percentage................................      4.0
(2) 1.25 times (1).............................................      5.0
(3) Lesser of relevant actual deferral percentage or relevant           
 actual contribution percentage................................      4.0
(4) (3) plus two percentage points.............................      6.0
(5) (2)+(4)....................................................     11.0
(6) 1.25 times (3).............................................      5.0
(7) (1) plus two percentage points.............................      6.0
(8) (6)+(7)....................................................     11.0
(9) Aggregate limit Greater of (5) or (8)......................     11.0
                                                                        
                Step 2: Calculation of Correction Amount                
                                                                        
(10) Actual deferral percentage of highly compensated..........      6.0
(11) Maximum permitted actual contribution percentage of highly         
 compensated ((9)-(10))........................................      5.0
(12) Amount taken into account in determining actual                    
 contribution percentage of highly compensated Employee X......   $6,000

[[Page 317]]

                                                                        
(13) Maximum amount permitted without use of alternative                
 limitation ((11) x compensation of Employee X)................   $5,000
(14) Excess aggregate contribution ((12)-(13)).................   $1,000
                                                                        


    (iii) A similar correction must be made for Employee Y.
    Example 2. Same as Example 1, but the plan corrects the multiple use 
in the arrangement subject to section 401(k) and provides that excess 
contributions are recharacterized. In this case, the aggregate limit for 
the plans will be 11 percent. Similarly, the excess contributions for 
Employees X and Y, determined in a manner analogous to that used in 
Example 1, will be $1,000. When this is recharacterized, the actual 
contribution percentage for these employees will increase to seven 
percent, resulting in an excess aggregate contribution of $1,000 that 
must be distributed.
    Example 3. Same as Example 1, except that Employee Y is not eligible 
to participate in the arrangement subject to section 401(k). No 
reduction of Y's actual contribution ratio is required because Y is only 
in the plan subject to section 401(m). In order to reduce the actual 
contribution percentage of the entire group of highly compensated 
employees eligible for the plan subject to section 401(m) to five 
percent, the plan must reduce X's actual contribution percentage to four 
percent. X's employee and matching contributions are limited to $4,000. 
Therefore X has an excess aggregate contribution of $2,000.

    (d) Effective date--(1) General rule. This section is effective for 
plan years beginning after December 31, 1988, or such later date 
provided in Sec. 1.402(m)-1(g).
    (2) Transition rule. For plan years beginning before January 1, 
1992, a reasonable interpretation of the rules set forth in sections 401 
(k) and (m) of the Internal Revenue Code (as in effect during those 
years) may be relied upon to determine whether a plan was qualified 
during those years. For plan years beginning before January 1, 1992, a 
plan may be restructured only in accordance with Sec. 1.401(k)-
1(h)(3)(iii) or Sec. 1.401(m)-1(g)(5)(ii).

[T.D. 8357, 56 FR 40543, Aug. 15, 1991, as amended at 57 FR 10290, Mar. 
25, 1992; T.D. 8581, 59 FR 66179, Dec. 23, 1994]



Sec. 1.402(a)-1   Taxability of beneficiary under a trust which meets the requirements of section 401(a).

    (a) In general. (1)(i) Section 402 relates to the taxation of the 
beneficiary of an employees' trust. If an employer makes a contribution 
for the benefit of an employee to a trust described in section 401(a) 
for the taxable year of the employer which ends within or with a taxable 
year of the trust for which the trust is exempt under section 501(a), 
the employee is not required to include such contribution in his income 
except for the year or years in which such contribution is distributed 
or made available to him. It is immaterial in the case of contributions 
to an exempt trust whether the employee's rights in the contributions to 
the trust are forfeitable or nonforfeitable either at the time the 
contribution is made to the trust or thereafter.
    (ii) The provisions of section 402(a) relate only to a distribution 
by a trust described in section 401(a) which is exempt under section 
501(a) for the taxable year of the trust in which the distribution is 
made. With two exceptions, the distribution from such an exempt trust 
when received or made available is taxable to the distributee to the 
extent provided in section 72 (relating to annuities). First, for 
taxable years beginning before January 1, 1964, section 72(e)(3) 
(relating to the treatment of certain lump sums), as in effect before 
such date, shall not apply to such distributions. For taxable years 
beginning after December 31, 1963, such distributions may be taken into 
account in computations under sections 1301 through 1305 (relating to 
income averaging). Secondly, certain total distributions described in 
section 402(a)(2) are taxable as long-term capital gains. For the 
treatment of such total distributions, see subparagraph (6) of this 
paragraph. Under certain circumstances, an amount representing the 
unrealized appreciation in the value of the securities of the employer 
is excludable from gross income for the year of distribution. For the 
rules relating to such exclusion, see paragraph (b) of this section. 
Furthermore, the exclusion provided by section 105(d) is applicable to a 
distribution from a trust described in section 401(a) and exempt under 
section 501(a) if such distribution constitutes wages or payments in 
lieu of wages for a period during which an employee is absent from work 
on account of a personal injury or

[[Page 318]]

sickness. See Sec. 1.72-15 for the rules relating to the tax treatment 
of accident or health benefits received under a plan to which section 72 
applies.
    (iii) Except as provided in paragraph (b) of this section, a 
distribution of property by a trust described in section 401(a) and 
exempt under section 501(a) shall be taken into account by the 
distributee at its fair market value.
    (iv) If a trust is exempt for the taxable year in which the 
distribution occurs, but was not so exempt for one or more prior taxable 
years under section 501(a) (or under section 165(a) of the Internal 
Revenue Code of 1939 for years to which such section was applicable), 
the contributions of the employer which were includible in the gross 
income of the employee for the taxable year when made shall, in 
accordance with section 72(f), also be treated as part of the 
consideration paid by the employee.
    (v) If the trust is not exempt at the time the distribution is 
received by or made available to the employee, see section 402(b) and 
paragraph (b) of Sec. 1.402(b)-1.
    (vi) For the treatment of amounts paid to provide medical benefits 
described in section 401(h) as defined in paragraph (a) of Sec. 1.401-
14, see paragraph (h) of Sec. 1.72-15.
    (2) If a trust described in section 401(a) and exempt under section 
501(a) purchases an annuity contract for an employee and distributes it 
to the employee in a year for which the trust is exempt, the contract 
containing a cash surrender value which may be available to an employee 
by surrendering the contract, such cash surrender value will not be 
considered income to the employee unless and until the contract is 
surrendered. For the rule as to nontransferability of annuity contracts 
issued after 1962, see paragraph (b)(2) of Sec. 1.401-9. If, however, 
the contract distributed by such exempt trust is a retirement income, 
endowment, or other life insurance contract and is distributed after 
October 26, 1956, the entire cash value of such contract at the time of 
distribution must be included in the distributee's income in accordance 
with the provisions of section 402(a), except to the extent that, within 
60 days after the distribution of such contract, all or any portion of 
such value is irrevocably converted into a contract under which no part 
of any proceeds payable on death at any time would be excludable under 
section 101(a) (relating to life insurance proceeds). If the contract 
distributed by such trust is a transferable annuity contract issued 
after 1962, or a retirement income, endowment, or other life insurance 
contract which is distributed after 1962 (whether or not transferable), 
then notwithstanding the preceding sentence the entire cash value of the 
contract is includible in the distributee's gross income, unless within 
such 60 days such contract is also made nontransferable.
    (3) For the rules applicable to premiums paid by a trust described 
in section 401(a) and exempt under section 501(a) for the purchase of 
retirement income, endowment, or other contracts providing life 
insurance protection payable upon the death of the employee-participant, 
see paragraph (b) of Sec. 1.72-16.
    (4) For the rules applicable to the amounts payable by reason of the 
death of an employee under a contract providing life insurance 
protection, or an annuity contract, purchased by a trust described in 
section 401(a) and exempt under section 501(a), see paragraph (c) of 
Sec. 1.72-16.
    (5) If pension or annuity payments or other benefits are paid or 
made available to the beneficiary of a deceased employee or a deceased 
retired employee by a trust described in section 401(a) which is exempt 
under section 501(a), such amounts are taxable in accordance with the 
rules of section 402(a) and this section. In case such amounts are 
taxable under section 72, the ``investment in the contract'' shall be 
determined by reference to the amount contributed by the employee and by 
applying the applicable rules of sections 72 and 101(b)(2)(D). In case 
the amounts paid to, or includible in the gross income of, the 
beneficiaries of the deceased employee or deceased retired employee 
constitute a distribution to which subparagraph (6) of this paragraph is 
applicable, the extent to which the distribution is taxable is 
determined by reference to the contributions of the employee, by 
reference to

[[Page 319]]

any prior distributions which were excludable from gross income as a 
return of employee contributions, and by applying the applicable rules 
of sections 72 and 101(b).
    (6)(i) If the total distributions payable with respect to any 
employee under a trust described in section 401(a) which in the year of 
distribution is exempt under section 501(a) are paid to, or includible 
in the gross income of, the distributee within one taxable year of the 
distributee on account of the employee's death or other separation from 
the service, or death after such separation from service, the amount of 
such distribution, to the extent it exceeds the net amount contributed 
by the employee, shall be considered a gain from the sale or exchange of 
a capital asset held for more than six months. The total distributions 
payable are includible in the gross income of the distributee within one 
taxable year if they are made available to such distributee and the 
distributee fails to make a timely election under section 72(h) to 
receive an annuity in lieu of such total distributions. The ``net amount 
contributed by the employee'' is the amount actually contributed by the 
employee plus any amounts considered to be contributed by the employee 
under the rules of section 72(f), 101(b), and subparagraph (3) of this 
paragraph, reduced by any amounts theretofore distributed to him which 
were excludable from gross income as a return of employee contributions. 
See, however, paragraph (b) of this section for rules relating to the 
exclusion of amounts representing net unrealized appreciation in the 
value of securities of the employer corporation. In addition, all or 
part of the amount otherwise includible in gross income under this 
paragraph by a non-resident alien individual in respect of a 
distribution by the United States under a qualified pension plan may be 
excludable from gross income under section 402(a)(4). For rules relating 
to such exclusion, see paragraph (c) of this section. For additional 
rules relating to the treatment of total distributions described in this 
subdivision in the case of a nonresident alien individual, see sections 
871 and 1441 and the regulations thereunder.
    (ii) The term ``total distributions payable'' means the balance to 
the credit of an employee which becomes payable to a distributee on 
account of the employee's death or other separation from the service or 
on account of his death after separation from the service. Thus, 
distributions made before a total distribution (for example, annuity 
payments received by the employee after retirement), will not defeat 
application of the capital gains treatment with respect to the total 
distributions received by a beneficiary upon the death of the employee 
after retirement. However, a distribution on separation from service 
will not receive capital gains treatment unless it constitutes the total 
amount in the employee's account at the time of his separation from 
service. If the total amount in the employee's account at the time of 
his death or other separation from the service or death after separation 
from the service is paid or includible in the gross income of the 
distributee within one taxable year of the distributee, such amount is 
entitled to the capital gains treatment notwithstanding that in a later 
taxable year an additional amount, attributable to the last year of 
service, is credited to the account of the employee and distributed.
    (iii) If an employee retires and commences to receive an annuity but 
subsequently, in some succeeding taxable year, is paid a lump sum in 
settlement of all future annuity payments, the capital gains treatment 
does not apply to such lump sum settlement paid during the lifetime of 
the employee since it is not a payment on account of separation from the 
service, or death after separation, but is on account of the settlement 
of future annuity payments.
    (iv) If the ``total distributions payable'' are paid or includible 
in the gross income of several distributees within one taxable year on 
account of the employee's death or other separation from the service or 
on account of his death after separation from the service, the capital 
gains treatment is applicable. The total distributions payable are paid 
within one taxable year of the distributees when, for example, a portion 
of such total is distributed in cash

[[Page 320]]

to one distributee and the balance is used to purchase an annuity 
contract which is distributed to the other distributee. However, if the 
share of any distributee is not paid or includible in his gross income 
within the same taxable year in which the shares of the other 
distributees are paid or includible in their gross income, none of the 
distributees is entitled to the capital gains treatment, since the total 
distributions payable are not paid or includible in the distributees' 
gross income within one taxable year. For example, if the total 
distributions payable are made available to each of two distributees and 
one elects to receive his share in cash while the other makes a timely 
election under section 72(h) to receive his share in installment 
payments from the trust, the capital gains treatment does not apply to 
either distributee.
    (v) For regulations as to certain plan terminations, see 
Sec. 1.402(e)-1.
    (vi) The term ``total distributions payable'' does not include 
United States Retirement Plan Bonds held by a trust to the credit of an 
employee. Thus, a distribution by a qualified trust may constitute a 
total distributions payable with respect to an employee even though the 
trust retains retirement plan bonds registered in the name of such 
employee. Similarly, the proceeds of a retirement plan bond received as 
a part of the total amount to the credit of an employee will not be 
entitled to capital gains treatment. See section 405(e) and paragraph 
(a)(4) of Sec. 1.405-3.
    (vii) For purposes of determining whether the total distributions 
payable to an employee have been distributed within one taxable year, 
the term ``total distributions payable'' includes amounts held by a 
trust to the credit of an employee which are attributable to 
contributions on behalf of the employee while he was a self-employed 
individual in the business with respect to which the plan was 
established. Thus, a distribution by a qualified trust is not a total 
distributions payable with respect to an employee if the trust retains 
amounts which are so attributable.
    (viii) The term ``total distributions payable'' does not include any 
amount which has been placed in a separate account for the funding of 
medical benefits described in section 401(h) as defined in paragraph (a) 
of Sec. 1.401-14. Thus, a distribution by a qualified trust may 
constitute a total distributions payable with respect to an employee 
even though the trust retains amounts attributable to the funding of 
medical benefits described in section 401(h).
    (7) The capital gains treatment provided by section 402(a)(2) and 
subparagraph (6) of this paragraph is not applicable to distributions 
paid to a distributee to the extent such distributions are attributable 
to contributions made on behalf of an employee while he was a self-
employed individual in the business with respect to which the plan was 
established. For the taxation of such amounts, see Sec. 1.72-18. For the 
rules for determining the amount attributable to contributions on behalf 
of an employee while he was self-employed, see paragraphs (b)(4) and 
(c)(2) of such section.
    (8) For purposes of this section, the term ``employee'' includes a 
self-employed individual who is treated as an employee under section 
401(c)(1), and paragraph (b) of Sec. 1.401-10, and the term ``employer'' 
means the person treated as the employer of such individual under 
section 401(c)(4).
    (b) Distributions including securities of the employer corporation--
(1) In general. (i) If a trust described in section 401(a) which is 
exempt under section 501(a) makes a distribution to a distributee, and 
such distribution includes securities of the employer corporation, the 
amount of any net unrealized appreciation in such securities shall be 
excluded from the distributee's income in the year of such distribution 
to the following extent:
    (A) If the distribution constitutes a total distribution to which 
the regulations of paragraph (a)(6) of this section are applicable, the 
amount to be excluded is the entire net unrealized appreciation 
attributable to that part of the total distribution which consists of 
securities of the employer corporation; and
    (B) If the distribution is other than a total distribution to which 
paragraph (a)(6) of this section is applicable, the

[[Page 321]]

amount to be excluded is that portion of the net unrealized appreciation 
in the securities of the employer corporation which is attributable to 
the amount considered to be contributed by the employee to the purchase 
of such securities.

The amount of net unrealized appreciation which is excludable under the 
regulations of (A) and (B) of this subdivision shall not be included in 
the basis of the securities in the hands of the distributee at the time 
of distribution for purposes of determining gain or loss on their 
subsequent disposition. In the case of a total distribution the amount 
of net unrealized appreciation which is not included in the basis of the 
securities in the hands of the distributee at the time of distribution 
shall be considered as a gain from the sale or exchange of a capital 
asset held for more than six months to the extent that such appreciation 
is realized in a subsequent taxable transaction. However, if the net 
gain realized by the distributee in a subsequent taxable transaction 
exceeds the amount of the net unrealized appreciation at the time of 
distribution, such excess shall constitute a long-term or short-term 
capital gain depending upon the holding period of the securities in the 
hands of the distributee.
    (ii) For purposes of section 402(a) and of this section, the term 
``securities'' means only shares of stock and bonds or debentures issued 
by a corporation with interest coupons or in registered form, and the 
term ``securities of the employer corporation'' includes securities of a 
parent or subsidiary corporation (as defined in subsections (e) and (f) 
of section 425) of the employer corporation.
    (2) Determination of net unrealized appreciation. (i) The amount of 
net unrealized appreciation in securities of the employer corporation 
which are distributed by the trust is the excess of the market value of 
such securities at the time of distribution over the cost or other basis 
of such securities to the trust. Thus, if a distribution consists in 
part of securities which have appreciated in value and in part of 
securities which have depreciated in value, the net unrealized 
appreciation shall be considered to consist of the net increase in value 
of all of the securities included in the distribution. For this purpose, 
two or more distributions made by a trust to a distributee in a single 
taxable year of the distributee shall be treated as a single 
distribution.
    (ii) For the purpose of determining the net unrealized appreciation 
on a distributed security of the employer corporation, the cost or other 
basis of such security to the trust shall be computed in accordance with 
whichever of the following rules is applicable:
    (A) If a security was earmarked for the account of a particular 
employee at the time it was purchased by or contributed to the trust so 
that the cost or other basis of such security to the trust is reflected 
in the account of such employee, such cost or other basis shall be used.
    (B) If as of the close of each taxable year of the trust (or other 
specified period of time not in excess of 12 consecutive calendar 
months) the trust allocates among the accounts of participating 
employees all securities acquired by the trust during the period 
(exclusive of securities unallocated under a plan providing for 
allocation in whole shares only), the cost or other basis to the trust 
of any securities allocated as of the close of a particular allocation 
period shall be the average cost or other basis to the trust of all 
securities of the same type which were purchased or otherwise acquired 
by the trust during such allocation period. For purposes of determining 
the average cost to the trust of securities included in a subsequent 
allocation, the actual cost to the trust of the securities unallocated 
as of the close of a prior allocation period shall be deemed to be the 
average cost or other basis to the trust of securities of the same type 
allocated as of the close of such prior allocation period.
    (c) In a case where neither (a) nor (b) of this subdivision is 
applicable, if the trust fund, or a specified portion thereof, is 
invested exclusively in one particular type of security of the employer 
corporation, and if during the period the distributee participated in 
the plan none of such securities has been sold except for the purpose of 
paying benefits under the trust or for the purpose

[[Page 322]]

of enabling the trustee to obtain funds with which to exercise rights 
which have accrued to the trust, the cost or other basis to the trust of 
all securities distributed to such distributee shall be the total amount 
credited to the account of such distributee (or such portion thereof as 
was available for investment in such securities) reduced by the amount 
available for investment but uninvested on the date of distribution. If 
at the time of distribution to a particular distributee a portion of the 
amount credited to his account is forfeited, appropriate adjustment 
shall be made with respect thereto in determining the cost or other 
basis to the trust of the securities distributed.
    (d) Salary reduction, cash or deferred arrangements--(1) Inclusion 
in income. Whether a contribution to an exempt trust or plan described 
in section 401(a) or 403(a) is made by the employer or the employee is 
determined on the basis of the particular facts and circumstances of 
each case. Nevertheless, an amount contributed to a plan or trust will, 
except as otherwise provided under paragraph (d)(2) of this section, be 
treated as contributed by the employee if it was contributed at the 
employee's election, even though the election was made before the year 
in which the amount was earned by the employee or before the year in 
which the amount became currently available to the employee. Any amount 
treated as contributed by the employee is includible in the gross income 
of the employee for the year in which the amount would have been 
received by the employee but for the election. Thus, for example, 
amounts contributed to an exempt trust or plan by reason of a salary 
reduction agreement under a cash or deferred arrangement are treated as 
received by the employee when they would have been received by the 
employee but for the election to defer. Accordingly, they are includible 
in the gross income of the employee for that year (except as provided 
under paragraph (d)(2) of this section). See Sec. 1.401(k)-1(a)(3)(iii) 
and (2)(i) for the meaning of currently available and cash or deferred 
arrangement, respectively.
    (2) Amounts not included in income--(i) Qualified cash or deferred 
arrangement. Elective contributions as defined in Sec. 1.401(k)-l (g)(3) 
for a plan year made by an employer on behalf of an employee pursuant to 
a cash or deferred election under a qualified cash or deferred 
arrangement, as defined in Sec. 1.401(k)-1(a)(4)(i), are not treated as 
received by or distributed to the employee or as employee contributions. 
For plan years beginning after December 31, 1992, whether a cash or 
deferred election is made under a qualified cash or deferred arrangement 
is determined without regard to the special rules for certain 
collectively bargained plans contained in Sec. 1.401(k)-1(a)(7). As a 
result, elective contributions under these plans are treated as employee 
contributions for purposes of this section if the cash or deferred 
arrangement does not satisfy the actual deferral percentage test of 
section 401(k)(3) or otherwise fails to be a qualified cash or deferred 
arrangement.
    (ii) Matching contributions. Matching contributions described in 
Sec. 1.401(m)-1(f)(12) and section 401(m)(4) are not treated as 
contributed by an employee merely because they are made by the employer 
as a result of an employee's election.
    (iii) Effect of certain one-time elections. Amounts contributed to 
an exempt plan or trust described in section 401(a) or 403(a) pursuant 
to the one-time irrevocable employee election to participate in a plan 
described in Sec. 1.401(k)-1(a)(3)(iv) are not treated as contributed by 
an employee. Similarly, amounts contributed to an exempt plan or trust 
described in section 401(a) or 403(a) in which self-employed individuals 
may participate pursuant to the one-time irrevocable election described 
in Sec. 1.401(k)-1(a)(6)(ii)(C) are not treated as contributed by an 
employee.
    (3) Effective date and transition rules--(i) Effective date. In the 
case of a plan or trust that does not include a salary reduction or cash 
or deferred arrangement in existence on June 27, 1974, this paragraph 
applies to taxable years ending after that date.
    (ii) Transition rule for cash or deferred arrangements in existence 
on June 27, 1974--(A) General rule. In the case of a plan or trust that 
includes a salary reduction or a cash or deferred arrangement in 
existence on June 27, 1974, this

[[Page 323]]

paragraph applies to plan years beginning after December 31, 1979 (or, 
in the case of a pre-ERISA money purchase plan, as defined in 
Sec. 1.401(k)-1(g)(12), plan years beginning after July 18, 1984). For 
plan years beginning prior to January 1, 1980 (or, in the case of a pre-
ERISA money purchase plan, plan years beginning before July 19, 1984), 
the taxable year of inclusion in gross income of the employee of any 
amount so contributed by the employer to the trust is determined in a 
manner consistent with Rev. Rul. 56-497, 1956-2 CB 284, Rev. Rul. 63-
180, 1963-2 CB 189, and Rev. Rul. 68-89, 1968-1 CB 402.
    (B) Meaning of cash or deferred arrangement in existence on June 27, 
1974. A cash or deferred arrangement is considered as in existence on 
June 27, 1974, if, on or before that date, it was reduced to writing and 
adopted by the employer (including, in the case of a corporate employer, 
formal approval by the employer's board of directors and, if required, 
shareholders), even though no amounts had been contributed pursuant to 
the terms of the arrangement as of that date.
    (iii) Reasonable interpretation for plan years beginning after 1979 
and before 1992. For plan years beginning after December 31, 1979 (or in 
the case of a pre-ERISA money purchase plan, plan years beginning after 
July 18, 1984) and before January 1, 1992, a reasonable interpretation 
of the rules set forth in section 401(k) (as in effect during those 
years) may be relied upon to determine whether contributions were made 
under a qualified cash or deferred arrangement.
    (iv) Special rule for collectively bargained plans. For plan years 
beginning before January 1, 1993, a nonqualified cash or deferred 
arrangement will be treated as satisfying section 401(k)(3) solely for 
purposes of paragraph (d)(2)(i) of this section if it is part of a plan 
(or portion of a plan) that automatically satisfies section 401(a)(4) 
under Sec. 1.401(k)-1(a)(7), relating to certain collectively bargained 
plans.
    (v) Special rule for governmental plans. For plan years beginning 
before the later of January 1, 1996, or 90 days after the opening of the 
first legislative session beginning on or after January 1, 1996, of the 
governing body with authority to amend the plan, if that body does not 
meet continuously, in the case of governmental plans described in 
section 414(d), a nonqualified cash or deferred arrangement will be 
treated as satisfying section 401(k)(3) solely for purposes of paragraph 
(d)(2)(i) of this section if it is part of a plan adopted by a state or 
local government before May 6, 1986. For purposes of this paragraph 
(d)(3)(v), the term governing body with authority to amend the plan 
means the legislature, board, commission, council, or other governing 
body with authority to amend the plan.

[T.D. 8217, 53 FR 29673, Aug. 8, 1988, as amended by T.D. 8357, 56 FR 
40545, Aug. 15, 1991; 57 FR 10290, Mar. 25, 1992; T.D. 8581, 59 FR 
66180, Dec. 23, 1994]



Sec. 1.402(a)(5)-1T  Rollovers of partial distributions from qualified trusts and annuities. (Temporary)

    Q-1: Can an employee or the surviving spouse of a deceased employee 
roll over to an individual retirement account or annuity, described in 
section 408 (a) or (b), the taxable portion of a partial distribution 
from a qualified trust described in section 401(a), a qualified plan 
described in section 403(a), or a tax-sheltered annuity contract under 
section 403(b)?
    A-1: Yes. For distributions made after July 18, 1984, the taxable 
portion of a partial distribution may be rolled over within 60 days of 
the distribution to an individual retirement account or annuity.
    Q-2: Are there special requirements applicable to rollovers of 
partial distributions?
    A-2: Yes. Section 402(a)(5)(D)(i) specifies that no part of a 
partial distribution may be rolled over unless the distribution is equal 
to at least 50 percent of the balance to the credit of the employee in 
the contract or plan immediately before the distribution, and the 
distribution is not one of a series of periodic payments. For purposes 
of this section, the balance to the credit of an employee does not 
include any accumulated deductible employee contributions (within the 
meaning of section 72(o)). In addition, in calculating the balance to 
the credit for purposes of the 50 percent test, qualified plans are

[[Page 324]]

not to be aggregated with other qualified plans and tax-sheltered 
annuity contracts are not to be aggregated with other tax-sheltered 
annuity contracts. Also, in applying the 50 percent test to a surviving 
spouse, the balance to the credit is the maximum amount the spouse is 
entitled to receive under the plan or contract, rather than the total 
balance to the credit of the employee. The rollover of a partial 
distribution may result in adverse tax consequences; see section 
402(a)(5)(D) (iii) and (iv).
    Q-3: Are there any other requirements applicable to rollovers of 
partial distribution?
    A-3: Yes. Section 402(a)(5)(D)(i)(III) requires the employee to 
elect, in conformance with Treasury regulations, to treat a contribution 
of a partial distribution to an IRA as a rollover contribution. An 
election is made by designating, in writing, to the trustee or issuer of 
the IRA at the time of the contribution that the contribution is to be 
treated as a rollover contribution. This requirement of a written 
designation to the trustee or issuer of the IRA is effective for 
contributions paid to the trustee or issuer of the IRA after March 20, 
1986. For contributions paid to the trustee or issuer before March 21, 
1986, an election is made by computing the individual's income tax 
liability on the income tax return for the taxable year in which the 
distribution occurs in a manner consistent with not including the 
distribution (or portion thereof) in gross income. Both such elections 
are irrevocable, except that an election made on an income tax return 
filed before March 21, 1986 is revocable.
    Q-4: Does the election requirement apply to rollovers of qualified 
total distributions or rollover contributions described in section 
402(a) (5) or (7), 403(a)(4), 403(b)(8), 405(d)(3), or 408(d)(3) to 
individual retirement accounts and annuities (IRAs)?
    A-4: Yes. No amounts may be treated as a rollover contribution to an 
IRA under section 402(a)(5), 402(a)(7), 403(a)(4), 403(b)(8), 405(d)(3) 
(as amended by section 491(c) of the TRA of 1984), or 408(d)(3) unless 
the requirements described in Q & A-3 of this section are satisfied. 
Thus, once any portion of a total distribution is irrevocably designated 
as a rollover contribution, such distribution is not taxable under 
section 402 or 403 and, therefore, is not eligible for the special 
capital gains and separate tax treatment under section 402 (a) and (e). 
Election requirements for rollover contributions to IRAs described in 
this Q &A-4 are subject to the same effective date rules set forth in Q 
&A-3.

[T.D. 8073, 51 FR 4320, Feb. 4, 1986]



Sec. 1.402(b)-1  Treatment of beneficiary of a trust not exempt under section 501(a).

    (a) Taxation by reason of employer contributions made after August 
1, 1969--(1) Taxation of contributions. Section 402(b) provides rules 
for taxing an employee on contributions made on his behalf by an 
employer to an employees' trust that is not exempt under section 501(a). 
In general, any such contributions made after August 1, 1969, during a 
taxable year of the employer which ends within or with a taxable year of 
the trust for which it is not so exempt shall be included as 
compensation in the gross income of the employee for his taxable year 
during which the contribution is made, but only to the extent that the 
employee's interest in such contribution is substantially vested at the 
time the contribution is made. The preceding sentence does not apply to 
contracts referred to in the transitional rule of paragraph (d)(1) (ii) 
or (iii) of this section. For the definition of the terms 
``substantially vested'' and ``substantially nonvested'' see Sec. 1.83-
3(b).
    (2) Determination of amount of employer contributions. If, for an 
employee, the actual amount of employer contributions referred to in 
paragraph (a)(1) of this section for any taxable year of the employee is 
not known, such amount shall be either an amount equal to the excess 
of--
    (i) The amount determined in accordance with the formula described 
in Sec. 1.403(b)-1(d)(4) as the end of such taxable year, over
    (ii) The amount determined in accordance with the formula described 
in Sec. 1.403(b)-1(d)(4) as of the end of the prior taxable year,


[[Page 325]]


or the amount determined under any other method utilizing recognized 
actuarial principles that are consistent with the provisions of the plan 
under which such contributions are made and the method adopted by the 
employer for funding the benefits under the plan.
    (b) Taxability of employee when rights under nonexempt trust change 
from nonvested to vested--(1) In general. If rights of an employee under 
a trust become substantially vested during a taxable year of the 
employee (ending after August 1, 1969), and a taxable year of the trust 
for which it is not exempt under section 501(a) ends with or within such 
year, the value of the employee's interest in the trust on the date of 
such change shall be included in his gross income for such taxable year, 
to the extent provided in paragraph (b)(3) of this section. When an 
employees' trust that was exempt under section 501(a) ceases to be so 
exempt, an employee shall include in his gross income only amounts 
contributed to the trust during a taxable year of the employer that ends 
within or with a taxable year of the trust in which it is not so exempt 
(to the same extent as if the trust had not been so exempt in all prior 
taxable years).
    (2) Value of an employee's interest in a trust. (i) For purposes of 
this section, the term ``the value of an employee's interest in a 
trust'' means the amount of the employee's beneficial interest in the 
net fair market value of all the assets in the trust as of any date on 
which some or all of the employee's interest in the trust becomes 
substantially vested. The net fair market value of all the assets in the 
trust is the total amount of the fair market values (determined without 
regard to any lapse restriction, as defined in Sec. 1.83-3(h)) of all 
the assets in the trust, less the amount of all the liabilities 
(including taxes) to which such assets are subject or which the trust 
has assumed (other than the rights of any employee in such assets), as 
of the date on which some or all of the employee's interest in the trust 
becomes substantially vested.
    (ii) If a separate account in a trust for the benefit of two or more 
employees is not maintained for each employee, the value of an 
employee's interest in such trust shall be determined in accordance with 
the formula described in Sec. 403(b)-1(d)(4) or any other method 
utilizing recognized actuarial principles that are consistent with the 
provisions of the plan under which the contributions are made and the 
method adopted by the employer for funding the benefits under the plan.
    (iii) If there is no valuation of a nonexempt trust's assets on the 
date of the change referred to in paragraph (b)(1) of this section, the 
value of an employee's interest in such trust is determined by taking 
the weighted average of the values on the nearest valuation dates 
occurring before and after the date of such change. The average is to be 
determined in the manner described in Sec. 20.2031-2(b)(1).
    (3) Extent to which value of an employee's interest is includible in 
gross income. For purposes of paragraph (b)(1) of this section, there 
shall be included in the gross income of the employee for his taxable 
year in which his rights under the trust become substantially vested 
only that portion of the value of his interest in the trust that is 
attributable to contributions made by the employer after August 1, 1969. 
However, the preceding sentence shall not apply--
    (i) To the extent such value is attributable to a contribution made 
on the date of such change, and
    (ii) To the extent such value is attributable to contributions 
described in paragraph (d)(1) (ii) or (iii) of this section (relating to 
contributions made pursuant to a binding contract entered into before 
April 22, 1969).

For purposes of this (3), if the value of an employee's interest in a 
trust which is attributable to contributions made by the employer after 
August 1, 1969, is not known, it shall be deemed to be an amount which 
bears the same ratio to the value of the employee's interest as the 
contributions made by the employer after such date bear to the total 
contributions made by the employer.
    (4) Partial vesting. For purposes of paragraph (b)(1) of this 
section, if only part of an employee's interest in the trust becomes 
substantially vested during any taxable year, then only the 
corresponding part of the value of the employee's interest in such trust 
is includible in his gross income for such

[[Page 326]]

year. In such a case, it is first necessary to compute, under the rules 
in paragraphs (b) (1) and (2) of this section, the amount that would be 
includdible if his entire interest had changed to a substantially vested 
interest during such a year. The amount that is includible under this 
paragraph (4) is the amount determined under the preceding sentence 
multiplied by the percent of the employee's interest which became 
substantially vested during the taxable year.
    (5) Basis. The basis of any employee's interest in a trust to which 
this section applies shall be increased by the amount included in his 
gross income under this section.
    (6) Treatment as owner of trust. In general, a beneficiary of a 
trust to which this section applies may not be considered to be the 
owner under subpart E, part I, subchapter J, chapter I of the Code of 
any portion of such trust which is attributable to contributions to such 
trust made by the employer after August 1, 1969, or to incidental 
contributions made by the employee after such date. However, where 
contributions made by the employee are not incidental when compared to 
contributions made by the employer, such beneficiary shall be considered 
to be the owner of the portion of the trust attributable to 
contributions made by the employee, if the applicable requirements of 
such subpart E are satisfied. For purposes of this paragraph (6), 
contributions made by an employee are not incidental when compared to 
contributions made by the employer if the employee's total contributions 
as of any date exceed the employer's total contributions on behalf of 
the employee as of such date.
    (7) Example. The provisions in this paragraph may be illustrated by 
the following example:

    Example. On January 1, 1968 M corporation establishes an employees' 
trust, which is not exempt under section 501(a), for some of its 
employees, including A, reserving the right to discontinue contributions 
at any time. M corporation contributes $5,000 on A's behalf to the trust 
on February 1, 1968. At the time of contribution 50 percent of A's 
interest was substantially vested. On January 1, 1971, and January 1, 
1974, M corporation makes additional $5,000 contributions to the trust 
on A's behalf. A's interest in the trust changed from a 50 percent 
substantially vested to a 100 percent substantialy vested interest in 
the trust on December 31, 1974. Assume that the value of A's interest in 
the trust on December 31, 1974, which is attributable to employer 
contributions made after August 1, 1969, is calculated to be $11,000 
under paragraph (b)(3) of this section. The amount includible in A's 
gross income for 1971 and 1974 is computed as follows:
    (i) Amount of M corporation's contribution made on January 1, 1971, 
to the trust which is includible in A's gross income under paragraph 
(b)(1) of this section (50 percent substantially vested interest in the 
trust times $5,000 contribution)--$2,500.

                                  1974

    (i) Amount of M corporation's contribution made on January 1, 1974, 
to the trust which is includible in A's gross income under paragraph 
(b)(1) of this section (50 percent substantially vested interest in the 
trust times $5,000 contribution)--$2,500.
    (ii) Amount which would have been includible if A's entire interest 
had changed to a substantially vested interest (value of employee's 
interest in the trust attributable to employer contributions made after 
August 1, 1969--$11,000.
    (iii) Percent of A's interest that became substantially vested on 
December 31, 1974--50 percent.
    (iv) Amount includible in A;s gross income for 1974 in respect of 
his percentage change from a substantially nonvested to a substantially 
vested interest in the trust (50 percent of $11,000)--$5,500.
    (v) Total amount includible in A's gross income for 1974 ((i) plus 
(iv))--$8,000.

    (c) Taxation of distributions from trust not exempt under section 
501(a)--(1) In general. Any amount actually distributed or made 
available to any distributee by an employees' trust in a taxable year in 
which it is not exempt under section 501(a) shall be taxable under 
section 72 (relating to annuities) to the distributee in the taxable 
year in which it is so distributed or made available. For taxable years 
beginning after December 31, 1963, such amounts may be taken into 
account in computations under sections 1301 through 1305 (relating to 
income averaging). If, for example, the distribution from such a trust 
consists of an annuity contract, the amount of the distribution shall be 
considered to be the entire value of the contract at the time of 
distribution. Such value is includible in the gross income of the 
distributee to the extent that such value exceeds the investment

[[Page 327]]

in the contract, determined by applying sections 72 and 101(b). The 
distributions by such a trust shall be taxed as provided in section 72 
whether or not the employee's rights to the contributions become 
substantially vested beforehand. For rules relating to the treatment of 
employer contributions to a nonexempt trust as part of the consideration 
paid by the employee, see section 72(f). For rules relating to the 
treatment of the limited exclusion allowable under section 101(b)(2)(D) 
as additional consideration paid by the employee, see the regulations 
under that section.
    (2) Distributions before annuity starting date. Any amount 
distributed or made available to any distributee before the annuity 
starting date (as defined in section 72(c)(4)) by an employees' trust in 
a taxable year in which it is not exempt under section 501(a) shall be 
treated as distributed in the following order--
    (i) First, from that portion of the employee's interest in the trust 
attributable to contributions made by the employer after August 1, 1969 
(other than those referred to in paragraph (d)(1) (ii) or (iii) of this 
section) that has not been previously includible in the employee's gross 
income, to the extent that such a distribution is permitted under the 
trust (or the plan of which the trust is a part);
    (ii) Second, from that portion of the employee's interest in the 
trust attributable to contributions made by the employer on or before 
August 1, 1969 (or contributions referred to in paragraph (d)(1) (ii) or 
(iii) of this section);
    (iii) Third, from the remaining portion of the employee's interest 
in the trust attributable to contributions made by the employer.
    If the employee has made contributions to the trust, amounts 
attributable thereto shall be treated as distributed prior to any 
amounts attributable to the employer's contributions, to the extent 
provided by the trust (or the plan of which the trust is a part). 
However, the portion of such amounts attributable to income earned on 
the employee's contributions made after August 1, 1969, shall be treated 
as distributed prior to any return of such contributions.
    (d) Taxation by reason of employer contributions made on or before 
August 1, 1969. (1) Except as provided in section 402(d) (relating to 
taxable years beginning before January 1, 1977), any contribution to a 
trust made by an employer on behalf of an employee--
    (i) On or before August 1, 1969, or
    (ii) After such date, pursuant to a binding contract (as defined in 
Sec. 1.83-3(b)(2)) entered into before April 22, 1969, or
    (iii) After August 1, 1969, pursuant to a written plan in which the 
employee participated on April 22, 1969, and under which the obligation 
of the employer on such date was essentially the same as under a binding 
written contract, during a taxable year of the employer which ends 
within or with a taxable year of the trust for which the trust is not 
exempt under section 501(a) shall be included in income of the employee 
for his taxable year during which the contribution is made, if the 
employee's beneficial interest in the contribution is nonforfeitable at 
the time the contribution is made. If the employee's beneficial interest 
in the contribution is forfeitable at the time the contribution is made, 
even though his interest becomes nonforfeitable later the amount of such 
contribution is not required to be included in the income of the 
employee at the time his interest becomes nonforfeitable.
    (2)(i) An employee's beneficial interest in the contribution is 
nonforfeitable, within the meaning of sections 402(b), 403(c), and 
404(a)(5) prior to the amendments made thereto by the Tax Reform Act of 
1969 and section 403(b), at the time the contribution is made if there 
is no contingency under the plan that may cause the employee to lose his 
rights in the contribution. Similarly, an employee's rights under an 
annuity contract purchased for him by his employer change from 
forfeitable to nonforfeitable rights within the meaning of section 
403(d) prior to the repeal thereof by the Tax Reform Act of 1969 at that 
time when, for the first time, there is no contingency which may cause 
the employee to lose his rights under the contract. For example, if 
under the terms of a pension plan, an employee upon termination of his 
services before the retirement date,

[[Page 328]]

whether voluntarily or involuntarily, is entitled to a deferred annuity 
contract to be purchased with the employer's contributions made on his 
behalf, or is entitled to annuity payments which the trustee is 
abligated to make under the terms of the trust instrument based on the 
contributions made by the employer on his behalf, the employee's 
beneficial interest in such contributions is nonforfeitable.
    (ii) On the other hand, if, under the terms of a pension plan, an 
employee will lose the right to any annuity purchased from or to be 
provided by, contributions made by the employer if his services should 
be terminated before retirement, his beneficial interest in such 
contributions is nonforfeitable.
    (iii) The mere fact that an employee may not live to the retirement 
date, or may live only a short period after the retirement date, and may 
not be able to enjoy the receipt of annuity or pension payments, does 
not make his beneficial interest in the contributions made by the 
employer on his behalf forfeitable. If the employer's contributions have 
been irrevocably applied to purchase an annuity contract for the 
employee, or if the trustee is obligated to use the employer's 
contributions to provide an annuity for the employee provide only that 
the employee is alive on the dates the annuity payments are due, the 
employee's rights in the employer's contributions are nonforfeitable.

(Secs. 83 and 7805 of the Internal Revenue Code of 1954 (83 Stat. 588; 
68A Stat. 917; 26 U.S.C. 83 and 7805))

[T.D. 7554, 43 FR 31922, July 24, 1978]



Sec. 1.402(c)-1   Taxability of beneficiary of certain foreign situs trusts.

    Section 402(c) has the effect of treating, for purposes of section 
402, the distributions from a trust which at the time of the 
distribution is located outside the United States in the same manner as 
distributions from a trust which is located in the United States. If the 
trust would qualify for exemption from tax under section 501(a) except 
for the fact that it fails to comply with the provisions of paragraph 
(a)(3)(i) of Sec. 1.401-1, which restricts qualification to trusts 
created or organized in the United States and maintained here, section 
402(a) and Sec. 1.402(a)-1 are applicable to the distributions from such 
a trust. Thus, for example, a total distribution from such a trust is 
entitled to the long-term capital gains treatment of section 402(a)(2), 
except in the case of a nonresident alien individual (see section 871 
and 1441 and the regulations thereunder). However, if the plan fails to 
meet any requirement of section 401 and the regulations thereunder in 
addition to paragraph (a)(3)(i) of Sec. 1.401-1, section 402(b) and 
Sec. 1.402(b)-1 are applicable to the distributions from such a trust.

[T.D. 6500, 25 FR 11679, Nov. 26, 1960]



Sec. 1.402(c)-2  Eligible rollover distributions; questions and answers.

    The following questions and answers relate to the rollover rules 
under section 402(c) of the Internal Revenue Code of 1986, as added by 
sections 521 and 522 of the Unemployment Compensation Amendments of 
1992, Public Law 102-318, 106 Stat. 290 (UCA). For additional UCA 
guidance under sections 401(a)(31), 402(f), 403(b)(8) and (10), and 
3405(c), see Secs. 1.401(a)(31)-1, 1.402(f)-1, and 1.403(b)-2, and 
Sec. 31.3405(c)-1 of this chapter, respectively.

                            List of Questions

    Q-1: What is the rule regarding distributions that may be rolled 
over to an eligible retirement plan?
    Q-2: What is an eligible retirement plan and a qualified plan?
    Q-3: What is an eligible rollover distribution?
    Q-4: Are there other amounts that are not eligible rollover 
distributions?
    Q-5: For purposes of determining whether a distribution is an 
eligible rollover distribution, how is it determined whether a series of 
payments is a series of substantially equal periodic payments over a 
period specified in section 402(c)(4)(A)?
    Q-6: What types of variations in the amount of a payment cause the 
payment to be independent of a series of substantially equal periodic 
payments and thus not part of the series?
    Q-7: When is a distribution from a plan a required minimum 
distribution under section 401(a)(9)?
    Q-8: How are amounts that are not includible in gross income 
allocated for purposes of determining the required minimum distribution?

[[Page 329]]

    Q-9: What is a distribution of a plan loan offset amount and is it 
an eligible rollover distribution?
    Q-10: What is a qualified plan distributed annuity contract, and is 
an amount paid under such a contract a distribution of the balance to 
the credit of the employee in a qualified plan for purposes of section 
402(c)?
    Q-11: If an eligible rollover distribution is paid to an employee, 
and the employee contributes all or part of the eligible rollover 
distribution to an eligible retirement plan within 60 days, is the 
amount contributed not currently includible in gross income?
    Q-12: How does section 402(c) apply to a distributee who is not the 
employee?
    Q-13: Must an employee's (or spousal distributee's) election to 
treat a contribution of an eligible rollover distribution to an 
individual retirement plan as a rollover contribution be irrevocable?
    Q-14: How is the $5,000 death benefit exclusion under section 101(b) 
treated for purposes of determining the amount that is an eligible 
rollover distribution?
    Q-15: May an employee (or spousal distributee) roll over more than 
the plan administrator determines to be an eligible rollover 
distribution using an assumption described in Sec. 1.401(a)(31)-1, Q&A-
17?
    Q-16: Is a rollover from a qualified plan to an individual 
retirement account or individual retirement annuity treated as a 
rollover contribution for purposes of the one-year look-back rollover 
limitation of section 408(d)(3)(B)?

                          Questions and Answers

    Q-1: What is the rule regarding distributions that may be rolled 
over to an eligible retirement plan?
    A-1: (a) General rule. Under section 402(c), as added by UCA, any 
portion of a distribution from a qualified plan that is an eligible 
rollover distribution described in section 402(c)(4) may be rolled over 
to an eligible retirement plan described in section 402(c)(8)(B). For 
purposes of section 402(c) and this section, a rollover is either a 
direct rollover as described in Sec. 1.401(a)(31)-1, Q&A-3 or a 
contribution of an eligible rollover distribution to an eligible 
retirement plan that satisfies the time period requirement in section 
402(c)(3) and Q&A-11 of this section and the designation requirement 
described in Q&A-13 of this section. See Q&A-2 of this section for the 
definition of an eligible retirement plan and a qualified plan.
    (b) Related Internal Revenue Code provisions--(1) Direct rollover 
option. Section 401(a)(31), added by UCA, requires qualified plans to 
provide a distributee of an eligible rollover distribution the option to 
elect to have the distribution paid directly to an eligible retirement 
plan in a direct rollover. See Sec. 1.401(a)(31)-1 for further guidance 
concerning this direct rollover option.
    (2) Notice requirement. Section 402(f) requires the plan 
administrator of a qualified plan to provide, within a reasonable time 
before making an eligible rollover distribution, a written explanation 
to the distributee of the distributee's right to elect a direct rollover 
and the withholding consequences of not making that election. The 
explanation also is required to provide certain other relevant 
information relating to the taxation of distributions. See 
Sec. 1.402(f)-1 for guidance concerning the written explanation required 
under section 402(f).
    (3) Mandatory income tax withholding. If a distributee of an 
eligible rollover distribution does not elect to have the eligible 
rollover distribution paid directly from the plan to an eligible 
retirement plan in a direct rollover under section 401(a)(31), the 
eligible rollover distribution is subject to 20-percent income tax 
withholding under section 3405(c). See Sec. 31.3405(c)-1 of this chapter 
for provisions relating to the withholding requirements applicable to 
eligible rollover distributions.
    (4) Section 403(b) annuities. See Sec. 1.403(b)-2 for guidance 
concerning the direct rollover requirements for distributions from 
annuities described in section 403(b).
    (c) Effective date--(1) Statutory effective date. Section 402(c), 
added by UCA, applies to eligible rollover distributions made on or 
after January 1, 1993, even if the event giving rise to the distribution 
occurred on or before January 1, 1993 (e.g. termination of the 
employee's employment with the employer maintaining the plan before 
January 1, 1993), and even if the eligible rollover distribution is part 
of a series of payments that began before January 1, 1993.
    (2) Regulatory effective date. This section applies to any 
distribution made on or after October 19, 1995. For eligible rollover 
distributions made on or after January 1, 1993 and before October 19,

[[Page 330]]

1995, Sec. 1.402(c)-2T (as it appeared in the April 1, 1995 edition of 
26 CFR part 1), applies. However, for any distribution made on or after 
January 1, 1993 but before October 19, 1995, any or all of the 
provisions of this section may be substituted for the corresponding 
provisions of Sec. 1.402(c)-2T, if any.
    Q-2: What is an eligible retirement plan and a qualified plan?
    A-2: An eligible retirement plan, under section 402(c)(8)(B), means 
a qualified plan or an individual retirement plan. For purposes of 
section 402(c) and this section, a qualified plan is an employees' trust 
described in section 401(a) which is exempt from tax under section 
501(a) or an annuity plan described in section 403(a). An individual 
retirement plan is an individual retirement account described in section 
408(a) or an individual retirement annuity (other than an endowment 
contract) described in section 408(b).
    Q-3: What is an eligible rollover distribution?
    A-3: (a) General rule. Unless specifically excluded, an eligible 
rollover distribution means any distribution to an employee (or to a 
spousal distributee described in Q&A-12(a) of this section) of all or 
any portion of the balance to the credit of the employee in a qualified 
plan. Thus, except as specifically provided in Q&A-4(b) of this section, 
any amount distributed to an employee (or such a spousal distributee) 
from a qualified plan is an eligible rollover distribution, regardless 
of whether it is a distribution of a benefit that is protected under 
section 411(d)(6).
    (b) Exceptions. An eligible rollover distribution does not include 
the following:
    (1) Any distribution that is one of a series of substantially equal 
periodic payments made (not less frequently than annually) over any one 
of the following periods--
    (i) The life of the employee (or the joint lives of the employee and 
the employee's designated beneficiary);
    (ii) The life expectancy of the employee (or the joint life and last 
survivor expectancy of the employee and the employee's designated 
beneficiary); or
    (iii) A specified period of ten years or more;
    (2) Any distribution to the extent the distribution is a required 
minimum distribution under section 401(a)(9); or
    (3) The portion of any distribution that is not includible in gross 
income (determined without regard to the exclusion for net unrealized 
appreciation described in section 402(e)(4)). Thus, for example, an 
eligible rollover distribution does not include the portion of any 
distribution that is excludible from gross income under section 72 as a 
return of the employee's investment in the contract (e.g., a return of 
the employee's after-tax contributions), but does include net unrealized 
appreciation.
    Q-4: Are there other amounts that are not eligible rollover 
distributions?
    A-4: Yes. The following amounts are not eligible rollover 
distributions:
    (a) Elective deferrals, as defined in section 402(g)(3), that, 
pursuant to Sec. 1.415-6(b)(6)(iv), are returned as a result of the 
application of the section 415 limitations, together with the income 
allocable to these corrective distributions.
    (b) Corrective distributions of excess deferrals as described in 
Sec. 1.402(g)-1(e)(3), together with the income allocable to these 
corrective distributions.
    (c) Corrective distributions of excess contributions under a 
qualified cash or deferred arrangement described in Sec. 1.401(k)-
1(f)(4) and excess aggregate contributions described in Sec. 1.401(m)-
1(e)(3), together with the income allocable to these distributions.
    (d) Loans that are treated as deemed distributions pursuant to 
section 72(p).
    (e) Dividends paid on employer securities as described in section 
404(k).
    (f) The costs of life insurance coverage (P.S. 58 costs).
    (g) Similar items designated by the Commissioner in revenue rulings, 
notices, and other guidance published in the Internal Revenue Bulletin. 
See Sec. 601.601(d)(2)(ii)(b) of this chapter.
    Q-5: For purposes of determining whether a distribution is an 
eligible rollover distribution, how is it determined whether a series of 
payments is a series of substantially equal periodic payments over a 
period specified in section 402(c)(4)(A)?
    A-5: (a) General rule. Generally, whether a series of payments is a 
series

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of substantially equal periodic payments over a specified period is 
determined at the time payments begin, and by following the principles 
of section 72(t)(2)(A)(iv), without regard to contingencies or 
modifications that have not yet occurred. Thus, for example, a joint and 
50-percent survivor annuity will be treated as a series of substantially 
equal payments at the time payments commence, as will a joint and 
survivor annuity that provides for increased payments to the employee if 
the employee's beneficiary dies before the employee. Similarly, for 
purposes of determining if a disability benefit payment is part of a 
series of substantially equal payments for a period described in section 
402(c)(4)(A), any contingency under which payments cease upon recovery 
from the disability may be disregarded.
    (b) Certain supplements disregarded. For purposes of determining 
whether a distribution is one of a series of payments that are 
substantially equal, social security supplements described in section 
411(a)(9) are disregarded. For example, if a distributee receives a life 
annuity of $500 per month, plus a social security supplement consisting 
of payments of $200 per month until the distributee reaches the age at 
which social security benefits of not less than $200 a month begin, the 
$200 supplemental payments are disregarded and, therefore, each monthly 
payment of $700 made before the social security age and each monthly 
payment of $500 made after the social security age is treated as one of 
a series of substantially equal periodic payments for life. A series of 
payments that are not substantially equal solely because the amount of 
each payment is reduced upon attainment of social security retirement 
age (or, alternatively, upon commencement of social security early 
retirement, survivor, or disability benefits) will also be treated as 
substantially equal as long as the reduction in the actual payments is 
level and does not exceed the applicable social security benefit.
    (c) Changes in the amount of payments or the distributee. If the 
amount (or, if applicable, the method of calculating the amount) of the 
payments changes so that subsequent payments are not substantially equal 
to prior payments, a new determination must be made as to whether the 
remaining payments are a series of substantially equal periodic payments 
over a period specified in Q&A-3(b)(1) of this section. This 
determination is made without taking into account payments made or the 
years of payment that elapsed prior to the change. However, a new 
determination is not made merely because, upon the death of the 
employee, the spouse or former spouse of the employee becomes the 
distributee. Thus, once distributions commence over a period that is at 
least as long as either the first annuitant's life or 10 years (e.g., as 
provided by a life annuity with a five-year or ten-year-certain 
guarantee), then substantially equal payments to the survivor are not 
eligible rollover distributions even though the payment period remaining 
after the death of the employee is or may be less than the period 
described in section 402(c)(4)(A). For example, substantially equal 
periodic payments made under a life annuity with a five-year term 
certain would not be an eligible rollover distribution even when paid 
after the death of the employee with three years remaining under the 
term certain.
    (d) Defined contribution plans. The following rules apply in 
determining whether a series of payments from a defined contribution 
plan constitute substantially equal periodic payments for a period 
described in section 402(c)(4)(A):
    (1) Declining balance of years. A series of payments from an account 
balance under a defined contribution plan will be considered 
substantially equal payments over a period if, for each year, the amount 
of the distribution is calculated by dividing the account balance by the 
number of years remaining in the period. For example, a series of 
payments will be considered substantially equal payments over 10 years 
if the series is determined as follows. In year 1, the annual payment is 
the account balance divided by 10; in year 2, the annual payment is the 
remaining account balance divided by 9; and so on until year 10 when the 
entire remaining balance is distributed.
    (2) Reasonable actuarial assumptions. If an employee's account 
balance under a

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defined contribution plan is to be distributed in annual installments of 
a specified amount until the account balance is exhausted, then, for 
purposes of determining if the period of distribution is a period 
described in section 402(c)(4)(A), the period of years over which the 
installments will be distributed must be determined using reasonable 
actuarial assumptions. For example, if an employee has an account 
balance of $100,000, elects distributions of $12,000 per year until the 
account balance is exhausted, and the future rate of return is assumed 
to be 8% per year, the account balance will be exhausted in 
approximately 14 years. Similarly, if the same employee elects a fixed 
annual distribution amount and the fixed annual amount is less than or 
equal to $10,000, it is reasonable to assume that a future rate of 
return will be greater than 0% and, thus, the account will not be 
exhausted in less than 10 years.
    (e) Series of payments beginning before January 1, 1993. Except as 
provided in paragraph (c) of this Q&A, if a series of periodic payments 
began before January 1, 1993, the determination of whether the post-
December 31, 1992 payments are a series of substantially equal periodic 
payments over a specified period is made by taking into account all 
payments made, including payments made before January 1, 1993. For 
example, if a series of substantially equal periodic payments beginning 
on January 1, 1983, is scheduled to be paid over a period of 15 years, 
payments in the series that are made after December 31, 1992, will not 
be eligible rollover distributions even though they will continue for 
only five years after December 31, 1992, because the pre- January 1, 
1993 payments are taken into account in determining the specified 
period.
    Q-6: What types of variations in the amount of a payment cause the 
payment to be independent of a series of substantially equal periodic 
payments and thus not part of the series?
    A-6: (a) Independent payments. Except as provided in paragraph (b) 
of this Q&A, a payment is treated as independent of the payments in a 
series of substantially equal payments, and thus not part of the series, 
if the payment is substantially larger or smaller than the other 
payments in the series. An independent payment is an eligible rollover 
distribution if it is not otherwise excepted from the definition of 
eligible rollover distribution. This is the case regardless of whether 
the payment is made before, with, or after payments in the series. For 
example, if an employee elects a single payment of half of the account 
balance with the remainder of the account balance paid over the life 
expectancy of the distributee, the single payment is treated as 
independent of the payments in the series and is an eligible rollover 
distribution unless otherwise excepted. Similarly, if an employee's 
surviving spouse receives a survivor life annuity of $1,000 per month 
plus a single payment on account of death of $7,500, the single payment 
is treated as independent of the payments in the annuity and is an 
eligible rollover distribution unless otherwise excepted (e.g., $5,000 
of the $7,500 might qualify to be excluded from gross income as a death 
benefit under section 101(b)).
    (b) Special rules--(1) Administrative error or delay. If, due solely 
to reasonable administrative error or delay in payment, there is an 
adjustment after the annuity starting date to the amount of any payment 
in a series of payments that otherwise would constitute a series of 
substantially equal payments described in section 402(c)(4)(A) and this 
section, the adjusted payment or payments will be treated as part of the 
series of substantially equal periodic payments and will not be treated 
as independent of the payments in the series. For example, if, due 
solely to reasonable administrative delay, the first payment of a life 
annuity is delayed by two months and reflects an additional two months 
worth of benefits, that payment will be treated as a substantially equal 
payment in the series rather than as an independent payment. The result 
will not change merely because the amount of the adjustment is paid in a 
separate supplemental payment.
    (2) Supplemental payments for annuitants. A supplemental payment 
from a defined benefit plan to annuitants (e.g., retirees or 
beneficiaries) will be treated as part of a series of substantially 
equal payments, rather than as an

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independent payment, provided that the following conditions are met--
    (i) The supplement is a benefit increase for annuitants;
    (ii) The amount of the supplement is determined in a consistent 
manner for all similarly situated annuitants;
    (iii) The supplement is paid to annuitants who are otherwise 
receiving payments that would constitute substantially equal periodic 
payments; and
    (iv) The aggregate supplement is less than or equal to the greater 
of 10% of the annual rate of payment for the annuity, or $750 or any 
higher amount prescribed by the Commissioner in revenue rulings, 
notices, and other guidance published in the Federal Register. See 
Sec. 601.601(d)(2)(ii)(b) of this chapter.
    (3) Final payment in a series. If a payment in a series of payments 
from an account balance under a defined contribution plan represents the 
remaining balance to the credit and is substantially less than the other 
payments in the series, the final payment must nevertheless be treated 
as a payment in the series of substantially equal payments and may not 
be treated as an independent payment if the other payments in the series 
are substantially equal and the payments are for a period described in 
section 402(c)(4)(A) based on the rules provided in paragraph (d)(2) of 
Q&A-5 of this section. Thus, such final payment will not be an eligible 
rollover distribution.
    Q-7: When is a distribution from a plan a required minimum 
distribution under section 401(a)(9)?
    A-7: (a) General rule. Except as provided in paragraphs (b) and (c) 
of this Q&A, if a minimum distribution is required for a calendar year, 
the amounts distributed during that calendar year are treated as 
required minimum distributions under section 401(a)(9), to the extent 
that the total required minimum distribution under section 401(a)(9) for 
the calendar year has not been satisfied. Accordingly, these amounts are 
not eligible rollover distributions. For example, if an employee is 
required under section 401(a)(9) to receive a required minimum 
distribution for a calendar year of $5,000 and the employee receives a 
total of $7,200 in that year, the first $5,000 distributed will be 
treated as the required minimum distribution and will not be an eligible 
rollover distribution and the remaining $2,200 will be an eligible 
rollover distribution if it otherwise qualifies. If the total section 
401(a)(9) required minimum distribution for a calendar year is not 
distributed in that calendar year (e.g., when the distribution for the 
calendar year in which the employee reaches age 70\1/2\ is made on the 
following April 1), the amount that was required but not distributed is 
added to the amount required to be distributed for the next calendar 
year in determining the portion of any distribution in the next calendar 
year that is a required minimum distribution.
    (b) Distribution before age 70\1/2\. Any amount that is paid before 
January 1 of the year in which the employee attains (or would have 
attained) age 70\1/2\ will not be treated as required under section 
401(a)(9) and, thus, is an eligible rollover distribution if it 
otherwise qualifies.
    (c) Special rule for annuities. In the case of annuity payments from 
a defined benefit plan, or under an annuity contract purchased from an 
insurance company (including a qualified plan distributed annuity 
contract (as defined in Q&A-10 of this section)), the entire amount of 
any such annuity payment made on or after January 1 of the year in which 
an employee attains (or would have attained) age 70\1/2\ will be treated 
as an amount required under section 401(a)(9) and, thus, will not be an 
eligible rollover distribution.
    Q-8: How are amounts that are not includible in gross income 
allocated for purposes of determining the required minimum distribution?
    A-8: If section 401(a)(9) has not yet been satisfied by the plan for 
the year with respect to an employee, a distribution is made to the 
employee that exceeds the amount required to satisfy section 401(a)(9) 
for the year for the employee, and a portion of that distribution is 
excludible from gross income, the following rule applies for purposes of 
determining the amount of the distribution that is an eligible rollover 
distribution. The portion of the distribution that is excludible from 
gross income is first allocated toward

[[Page 334]]

satisfaction of section 401(a)(9) and then the remaining portion of the 
required minimum distribution, if any, is satisfied from the portion of 
the distribution that is includible in gross income. For example, assume 
an employee is required under section 401(a)(9) to receive a minimum 
distribution for a calendar year of $4,000 and the employee receives a 
$4,800 distribution, of which $1,000 is excludible from income as a 
return of basis. First, the $1,000 return of basis is allocated toward 
satisfying the required minimum distribution. Then, the remaining $3,000 
of the required minimum distribution is satisfied from the $3,800 of the 
distribution that is includible in gross income, so that the remaining 
balance of the distribution, $800, is an eligible rollover distribution 
if it otherwise qualifies.
    Q-9: What is a distribution of a plan loan offset amount, and is it 
an eligible rollover distribution?
    A-9: (a) General rule. A distribution of a plan loan offset amount, 
as defined in paragraph (b) of this Q&A, is an eligible rollover 
distribution if it satisfies Q&A-3 of this section. Thus, an amount 
equal to the plan loan offset amount can be rolled over by the employee 
(or spousal distributee) to an eligible retirement plan within the 60-
day period under section 402(c)(3), unless the plan loan offset amount 
fails to be an eligible rollover distribution for another reason. See 
Sec. 1.401(a)(31)-1, Q&A-15 for guidance concerning the offering of a 
direct rollover of a plan loan offset amount. See Sec. 31.3405(c)-1, 
Q&A-11 of this chapter for guidance concerning special withholding rules 
with respect to plan loan offset amounts.
    (b) Definition of plan loan offset amount. For purposes of section 
402(c), a distribution of a plan loan offset amount is a distribution 
that occurs when, under the plan terms governing a plan loan, the 
participant's accrued benefit is reduced (offset) in order to repay the 
loan (including the enforcement of the plan's security interest in a 
participant's accrued benefit). A distribution of a plan loan offset 
amount can occur in a variety of circumstances, e.g., where the terms 
governing a plan loan require that, in the event of the employee's 
termination of employment or request for a distribution, the loan be 
repaid immediately or treated as in default. A distribution of a plan 
loan offset amount also occurs when, under the terms governing the plan 
loan, the loan is cancelled, accelerated, or treated as if it were in 
default (e.g., where the plan treats a loan as in default upon an 
employee's termination of employment or within a specified period 
thereafter). A distribution of a plan loan offset amount is an actual 
distribution, not a deemed distribution under section 72(p).
    (c) Examples. The rules with respect to a plan loan offset amount in 
this Q&A-9, Sec. 1.401(a)(31)-1, Q&A-15 and Sec. 31.3405(c)-1, Q&A-11 of 
this chapter are illustrated by the following examples:

    Example 1. (a) In 1996, Employee A has an account balance of $10,000 
in Plan Y, of which $3,000 is invested in a plan loan to Employee A that 
is secured by Employee A's account balance in Plan Y. Employee A has 
made no after-tax employee contributions to Plan Y. Plan Y does not 
provide any direct rollover option with respect to plan loans. Upon 
termination of employment in 1996, Employee A, who is under age 70\1/2\ 
, elects a distribution of Employee A's entire account balance in Plan 
Y, and Employee A's outstanding loan is offset against the account 
balance on distribution. Employee A elects a direct rollover of the 
distribution.
    (b) In order to satisfy section 401(a)(31), Plan Y must pay $7,000 
directly to the eligible retirement plan chosen by Employee A in a 
direct rollover. When Employee A's account balance was offset by the 
amount of the $3,000 unpaid loan balance, Employee A received a plan 
loan offset amount (equivalent to $3,000) that is an eligible rollover 
distribution. However, under Sec. 1.401(a)(31)-1, Q&A-15 Plan Y 
satisfies section 401(a)(31), even though a direct rollover option was 
not provided with respect to the $3,000 plan loan offset amount.
    (c) No withholding is required under section 3405(c) on account of 
the distribution of the $3,000 plan loan offset amount because no cash 
or other property (other than the plan loan offset amount) is received 
by Employee A from which to satisfy the withholding. Employee A may roll 
over $3,000 to an eligible retirement plan within the 60 day period 
provided in section 402(c)(3).
    Example 2. (a) The facts are the same as in Example 1, except that 
the terms governing the plan loan to Employee A provide that, upon 
termination of employment, Employee A's account balance is automatically 
offset by the amount of any unpaid loan balance to

[[Page 335]]

repay the loan. Employee A terminates employment but does not request a 
distribution from Plan Y. Nevertheless, pursuant to the terms governing 
the plan loan, Employee A's account balance is automatically offset by 
the amount of the $3,000 unpaid loan balance.
    (b) The $3,000 plan loan offset amount attributable to the plan loan 
in this example is treated in the same manner as the $3,000 plan loan 
offset amount in Example 1.
    Example 3. (a) The facts are the same as in Example 2, except that, 
instead of providing for an automatic offset upon termination of 
employment to repay the plan loan, the terms governing the plan loan 
require full repayment of the loan by Employee A within 30 days of 
termination of employment. Employee A terminates employment, does not 
elect a distribution from Plan Y, and also fails to repay the plan loan 
within 30 days. The plan administrator of Plan Y declares the plan loan 
to Employee A in default and executes on the loan by offsetting Employee 
A's account balance by the amount of the $3,000 unpaid loan balance.
    (b) The $3,000 plan loan offset amount attributable to the plan loan 
in this example is treated in the same manner as the $3,000 plan loan 
offset amount in Example 1 and in Example 2. The result in this Example 
3 is the same even though the plan administrator treats the loan as in 
default before offsetting Employee A's accrued benefit by the amount of 
the unpaid loan.
    Example 4. (a) The facts are the same as in Example 1, except that 
Employee A elects to receive the distribution of the account balance 
that remains after the $3,000 offset to repay the plan loan, instead of 
electing a direct rollover of the remaining account balance.
    (b) In this case, the amount of the distribution received by 
Employee A is $10,000, not $3,000. Because the amount of the $3,000 
offset attributable to the loan is included in determining the amount 
that equals 20 percent of the eligible rollover distribution received by 
Employee A, withholding in the amount of $2,000 (20 percent of $10,000) 
is required under section 3405(c). The $2,000 is required to be withheld 
from the $7,000 to be distributed to Employee A in cash, so that 
Employee A actually receives a check for $5,000.
    Example 5. The facts are the same as in Example 4, except that the 
$7,000 distribution to Employee A after the offset to repay the loan 
consists solely of employer securities within the meaning of section 
402(e)(4)(E). In this case, no withholding is required under section 
3405(c) because the distribution consists solely of the $3,000 plan loan 
offset amount and the $7,000 distribution of employer securities. This 
is the result because the total amount required to be withheld does not 
exceed the sum of the cash and the fair market value of other property 
distributed, excluding plan loan offset amounts and employer securities. 
Employee A may roll over the employer securities and $3,000 to an 
eligible retirement plan within the 60-day period provided in section 
402(c)(3).
    Example 6. Employee B, who is age 40, has an account balance in Plan 
Z, a profit sharing plan qualified under section 401(a) that includes a 
qualified cash or deferred arrangement described in section 401(k). Plan 
Z provides for no after-tax employee contributions. In 1990, Employee B 
receives a loan from Plan Z, the terms of which satisfy section 
72(p)(2), and which is secured by elective contributions subject to the 
distribution restrictions in section 401(k)(2)(B). In 1996, the loan 
fails to satisfy section 72(p)(2) because Employee B stops repayment. In 
that year, pursuant to section 72(p), Employee B is taxed on a deemed 
distribution equal to the amount of the unpaid loan balance. Under Q&A-4 
of this section, the deemed distribution is not an eligible rollover 
distribution. Because Employee B has not separated from service or 
experienced any other event that permits the distribution under section 
401(k)(2)(B) of the elective contributions that secure the loan, Plan Z 
is prohibited from executing on the loan. Accordingly, Employee B's 
account balance is not offset by the amount of the unpaid loan balance 
at the time Employee B stops repayment on the loan. Thus, there is no 
distribution of an offset amount that is an eligible rollover 
distribution in 1996.

    Q-10: What is a qualified plan distributed annuity contract, and is 
an amount paid under such a contract a distribution of the balance to 
the credit of the employee in a qualified plan for purposes of section 
402(c)?
    A-10: (a) Definition of a qualified plan distributed annuity 
contract. A qualified plan distributed annuity contract is an annuity 
contract purchased for a participant, and distributed to the 
participant, by a qualified plan.
    (b) Treatment of amounts paid as eligible rollover distributions. 
Amounts paid under a qualified plan distributed annuity contract are 
payments of the balance to the credit of the employee for purposes of 
section 402(c) and are eligible rollover distributions, if they 
otherwise qualify. Thus, for example, if the employee surrenders the 
contract for a single sum payment of its cash surrender value, the 
payment would be an eligible rollover distribution to the extent it is 
includible in gross income and not a required minimum distribution under 
section 401(a)(9). This rule applies even if the annuity contract is 
distributed in connection with a plan

[[Page 336]]

termination. See Sec. 1.401(a)(31)-1, Q&A-16 and Sec. 31.3405(c)-1, Q&A-
13 of this chapter concerning the direct rollover requirements and 20-
percent withholding requirements, respectively, that apply to eligible 
rollover distributions from such an annuity contract.
    Q-11: If an eligible rollover distribution is paid to an employee, 
and the employee contributes all or part of the eligible rollover 
distribution to an eligible retirement plan within 60 days, is the 
amount contributed not currently includible in gross income?
    A-11: Yes, the amount contributed is not currently includible in 
gross income, provided that it is contributed to the eligible retirement 
plan no later than the 60th day following the day on which the employee 
received the distribution. If more than one distribution is received by 
an employee from a qualified plan during a taxable year, the 60-day rule 
applies separately to each distribution. Because the amount withheld as 
income tax under section 3405(c) is considered an amount distributed 
under section 402(c), an amount equal to all or any portion of the 
amount withheld can be contributed as a rollover to an eligible 
retirement plan within the 60-day period, in addition to the net amount 
of the eligible rollover distribution actually received by the employee. 
However, if all or any portion of an amount equal to the amount withheld 
is not contributed as a rollover, it is included in the employee's gross 
income to the extent required under section 402(a), and also may be 
subject to the 10-percent additional income tax under section 72(t).
    Q-12: How does section 402(c) apply to a distributee who is not the 
employee?
    A-12: (a) Spousal distributee. If any distribution attributable to 
an employee is paid to the employee's surviving spouse, section 402(c) 
applies to the distribution in the same manner as if the spouse were the 
employee. The same rule applies if any distribution attributable to an 
employee is paid in accordance with a qualified domestic relations order 
(as defined in section 414(p)) to the employee's spouse or former spouse 
who is an alternate payee. Therefore, a distribution to the surviving 
spouse of an employee (or to a spouse or former spouse who is an 
alternate payee under a qualified domestic relations order), including a 
distribution of ancillary death benefits attributable to the employee, 
is an eligible rollover distribution if it meets the requirements of 
section 402(c)(2) and (4) and Q&A-3 through Q&A-10 and Q&A-14 of this 
section. However, a qualified plan (as defined in Q&A-2 of this section) 
is not treated as an eligible retirement plan with respect to a 
surviving spouse. Only an individual retirement plan is treated as an 
eligible retirement plan with respect to an eligible rollover 
distribution to a surviving spouse.
    (b) Non-spousal distributee. A distributee other than the employee 
or the employee's surviving spouse (or a spouse or former spouse who is 
an alternate payee under a qualified domestic relations order) is not 
permitted to roll over distributions from a qualified plan. Therefore, 
those distributions do not constitute eligible rollover distributions 
under section 402(c)(4) and are not subject to the 20-percent income tax 
withholding under section 3405(c).
    Q-13: Must an employee's (or spousal distributee's) election to 
treat a contribution of an eligible rollover distribution to an 
individual retirement plan as a rollover contribution be irrevocable?
    A-13: (a) In general. Yes. In order for a contribution of an 
eligible rollover distribution to an individual retirement plan to 
constitute a rollover and, thus, to qualify for current exclusion from 
gross income, a distributee must elect, at the time the contribution is 
made, to treat the contribution as a rollover contribution. An election 
is made by designating to the trustee, issuer, or custodian of the 
eligible retirement plan that the contribution is a rollover 
contribution. This election is irrevocable. Once any portion of an 
eligible rollover distribution has been contributed to an individual 
retirement plan and designated as a rollover distribution, taxation of 
the withdrawal of the contribution from the individual retirement plan 
is determined under section 408(d) rather than under section 402 or 403. 
Therefore, the eligible rollover distribution is not eligible for 
capital gains treatment, five-year

[[Page 337]]

or ten-year averaging, or the exclusion from gross income for net 
unrealized appreciation on employer stock.
    (b) Direct rollover. If an eligible rollover distribution is paid to 
an individual retirement plan in a direct rollover at the election of 
the distributee, the distributee is deemed to have irrevocably 
designated that the direct rollover is a rollover contribution.
    Q-14: How is the $5,000 death benefit exclusion under section 101(b) 
treated for purposes of determining the amount that is an eligible 
rollover distribution?
    A-14: To the extent that a death benefit is a distribution from a 
qualified plan, the portion of the distribution that is excluded from 
gross income under section 101(b) is not an eligible rollover 
distribution. See Sec. 1.401(a)(31)-1, Q&A-17 for guidance concerning 
assumptions that a plan administrator may make with respect to whether 
and to what extent a distribution of a survivor benefit is excludible 
from gross income under section 101(b).
    Q-15: May an employee (or spousal distributee) roll over more than 
the plan administrator determines to be an eligible rollover 
distribution using an assumption described in Sec. 1.401(a)(31)-1, Q&A-
17?
    A-15: Yes. The portion of any distribution that an employee (or 
spousal distributee) may roll over as an eligible rollover distribution 
under section 402(c) is determined based on the actual application of 
section 402 and other relevant provisions of the Internal Revenue Code. 
The actual application of these provisions may produce different results 
than any assumption described in Sec. 1.401(a)(31)-1, Q&A-17 that is 
used by the plan administrator. Thus, for example, even though the plan 
administrator calculates the portion of a distribution that is a 
required minimum distribution (and thus is not made eligible for direct 
rollover under section 401(a)(31)), by assuming that there is no 
designated beneficiary, the portion of the distribution that is actually 
a required minimum distribution and thus not an eligible rollover 
distribution is determined by taking into account the designated 
beneficiary, if any. If, by taking into account the designated 
beneficiary, a greater portion of the distribution is an eligible 
rollover distribution, the distributee may rollover the additional 
amount. Similarly, even though a plan administrator assumes that a 
distribution from a qualified plan is the only death benefit with 
respect to an employee that qualifies for the $5,000 death benefit 
exclusion under section 101(b), to the extent that the death benefit 
exclusion is allocated to a different death benefit, a greater portion 
of the distribution may actually be includible in gross income and, 
thus, be an eligible rollover distribution, and the surviving spouse may 
roll over the additional amount if it otherwise qualifies.
    Q-16: Is a rollover from a qualified plan to an individual 
retirement account or individual retirement annuity treated as a 
rollover contribution for purposes of the one-year look-back rollover 
limitation of section 408(d)(3)(B)?
    A-16: No. A distribution from a qualified plan that is rolled over 
to an individual retirement account or individual retirement annuity is 
not treated for purposes of section 408(d)(3)(B) as an amount received 
by an individual from an individual retirement account or individual 
retirement annuity which is not includible in gross income because of 
the application of section 408(d)(3).

[T.D. 8619, 60 FR 49208, Sept. 22, 1995]



Sec. 1.402(d)-1   Effect of section 402(d).

    (a) If the requirements of section 402(d) are met, a contribution 
made by an employer on behalf of an employee to a trust which is not 
exempt under section 501(a) shall not be included in the income of the 
employee in the year in which the contribution is made. Such 
contribution will be taxable to the employee, when received in later 
years, as provided in section 72 (relating to annuities). For taxable 
years beginning before January 1, 1964, section 72(e)(3) (relating to 
the treatment of certain lump sums), as in effect before such date, 
shall not apply to such contributions. For taxable years beginning after 
December 31, 1963, such contributions, when received, may be taken into 
account in computations under sections 1301 through 1305 (relating to 
income averaging). See paragraph (b)

[[Page 338]]

of Sec. 1.403(c)-1. The intent and purpose of section 402(d) is to give 
those employees, covered under certain non-exempt trusts to which such 
section applies, essentially the same tax treatment as those covered by 
trusts described in section 401(a) and exempt under section 501(a), 
except that the capital gains treatment referred to in section 402(a)(2) 
does not apply.
    (b) Every person claiming the benefit of section 402(d) must be able 
to demonstrate to the satisfaction of the Commissioner that all of the 
provisions of such section are met. The taxpayer must produce sufficient 
evidence to prove:
    (1) That, before October 21, 1942, he was employed by the particular 
employer making the contribution in question and was at such time 
definitely covered by a written agreement, entered into before October 
21, 1942, between himself and the employer, or between the employer and 
the trustee of a trust established by the employer before October 21, 
1942, and that the contribution by the employer was made pursuant to 
such agreement. The fact that an employee may have been potentially 
covered is not sufficient. Evidence that the employment was entered 
into, or the agreement executed, ``as of'' a date before October 21, 
1942, or that the agreement or trust instrument which did not 
theretofore meet the requirements of section 402(d) was modified or 
amended after October 20, 1942, so as to come within the provisions of 
such section, will not satisfy the requirements of section 402(d).
    (2) That such contribution, pursuant to the terms of such agreement, 
was to be applied for the purchase of an annuity contract for the 
taxpayer. In the case of a contribution by the employer of an annuity 
contract purchased by such employer and transferred by him to the 
trustee of the trust, evidence should be presented to prove that such 
contract was purchased for the taxpayer by the employer pursuant to the 
terms of a written agreement between the employer and the employee or 
between the employer and the trustee, entered into before October 21, 
1942.
    (3) That under the written terms of the trust agreement the taxpayer 
is not entitled during his lifetime, except with the consent of the 
trustee, to any payments other than annuity payments under the annuity 
contract or contracts purchased by the trustee or by the employer and 
transferred to the trustee, and that the trustee may grant or withhold 
such consent free from control by the taxpayer, the employer, or any 
other person. However, such control will not be presumed from the fact 
that the trustee is himself an officer or employee of the employer. As 
used in section 402(d) the phrase ``if * * * under the terms of the 
trust agreement the employee is not entitled'' means that the trust 
instrument must make it impossible for the prohibited distribution to 
occur whether by operation or natural termination of the trust, whether 
by power of revocation or amendment, other than with the consent of the 
trustee, whether by the happening of a contingency, by collateral 
arrangement, or any other means. It is not essential that the employer 
relinquish all power to modify or terminate the trust but it must be 
impossible, except with the consent of the trustee, to be received by 
the taxpayer contracts purchased by the trustee, or by the employer and 
transferred to the trustee, to be received by the taxpayer directly or 
indirectly, other than as annuity payments.
    (4) The nature and amount of such contribution and the extent to 
which income taxes have been paid thereon before January 1, 1949, and 
not credited or refunded.
    (5) If it is claimed that section 402(d) applies to amounts 
contributed to a trust after June 1, 1949, the taxpayer must prove to 
the satisfaction of the Commissioner that the trust did not, on June 1, 
1949, qualify for exemption under section 165(a) of the Internal Revenue 
Code of 1939. Where an employer buys an annuity contract which is 
transferred to the trustee, the date of the purchase of the annuity 
contract and not the date of the transfer to the trustee is the 
controlling date in determining whether or not the contribution was made 
to the trust after June 1, 1949.

[T.D. 6500, 25 FR 11679, Nov. 26, 1960, as amended by T.D. 6885, 31 FR 
7801, June 2, 1966]

[[Page 339]]



Sec. 1.402(e)-1   Certain plan terminations.

    Distributions made after December 31, 1953, and before January 1, 
1955, as a result of the complete termination of an employees' trust 
described in section 401(a) which is exempt under section 501(a) shall 
be considered distributions on account of separation form service for 
purposes of section 402(a)(2) if the employer who established the trust 
is a corporation, and the termination of the plan is incident to the 
complete liquidation of the corporation before August 16, 1954, 
regardless of whether such liquidation is incident to a reorganization 
as defined in section 368.

[T.D. 6500, 25 FR 11680, Nov. 26, 1960]



Sec. 1.402(f)-1  Required explanation of eligible rollover distributions; questions and answers.

    The following questions and answers concern the written explanation 
requirement imposed by section 402(f) of the Internal Revenue Code of 
1986 relating to distributions eligible for rollover treatment. Section 
402(f) was amended by section 521(a) of the Unemployment Compensation 
Amendments of 1992, Public Law 102-318, 106 Stat. 290 (UCA). For 
additional UCA guidance under sections 401(a)(31), 402(c), 403(b)(8) and 
(10), and 3405(c), see Secs. 1.401(a)(31)-1, 1.402(c)-2, 1.403(b)-2, and 
31.3405(c)-1 of this chapter, respectively.

                            List of Questions

    Q-1: What are the requirements for a written explanation under 
section 402(f)?
    Q-2: When must the plan administrator provide the section 402(f) 
notice to a distributee?
    Q-3: Must the plan administrator provide a separate section 402(f) 
notice for each distribution in a series of periodic payments that are 
eligible rollover distributions?
    Q-4: May a plan administrator post the section 402(f) notice as a 
means of providing it to distributees?

                          Questions and Answers

    Q-1: What are the requirements for a written explanation under 
section 402(f)?
    A-1: (a) General rule. Under section 402(f), as amended by UCA, the 
plan administrator of a qualified plan is required, within a reasonable 
period of time before making an eligible rollover distribution, to 
provide the distributee with the written explanation described in 
section 402(f) (section 402(f) notice). The section 402(f) notice must 
be designed to be easily understood and must explain the following: the 
rules under which the distributee may elect that the distribution be 
paid in the form of a direct rollover to an eligible retirement plan; 
the rules that require the withholding of tax on the distribution if it 
is not paid in a direct rollover; the rules under which the distributee 
may defer tax on the distribution if it is contributed in a rollover to 
an eligible retirement plan within 60 days of the distribution; and if 
applicable, certain special rules regarding the taxation of the 
distribution as described in section 402(d) (averaging with respect to 
lump sum distributions) and (e) (other rules including treatment of net 
unrealized appreciation). See Sec. 1.401(a)(31)-1, Q&A-7 for additional 
information that must be provided if a plan provides a default procedure 
regarding the election of a direct rollover.
    (b) Model section 402(f) notice. The plan administrator will be 
deemed to have complied with the requirements of paragraph (a) of this 
Q&A-1 relating to the contents of the section 402(f) notice if the plan 
administrator provides the applicable model section 402(f) notice 
published by the Internal Revenue Service for this purpose in a revenue 
ruling, notice, or other guidance published in the Internal Revenue 
Bulletin. See Sec. 601.601(d)(2)(ii)(b) of this chapter.
    (c) Delegation to Commissioner. The Commissioner, in revenue 
rulings, notices, and other guidance, published in the Internal Revenue 
Bulletin, may modify, or provide any additional guidance with respect 
to, the notice requirement of this section. See 
Sec. 601.601(d)(2)(ii)(b) of this chapter.
    (d) Effective date--(1) Statutory effective date. Section 402(f) 
applies to eligible rollover distributions made after December 31, 1992.
    (2) Regulatory effective date. This section applies to eligible 
rollover distributions made on or after October 19, 1995. For eligible 
rollover distributions

[[Page 340]]

made on or after January 1, 1993 and before October 19, 1995, 
Sec. 1.402(c)-2T, Q&A-11 through 15 (as it appeared in the April 1, 1995 
edition of 26 CFR part 1), apply. However, for any distribution made on 
or after January 1, 1993 but before October 19, 1995, a plan 
administrator or payor may satisfy the requirements of section 402(f) by 
substituting any or all provisions of this section for the corresponding 
provisions of Sec. 1.402(c)-1T, Q&A-11 through 15, if any.
    Q-2: When must the plan administrator provide the section 402(f) 
notice to a distributee?
    A-2: The plan administrator must provide a distributee with the 
section 402(f) notice no less than 30 days and no more than 90 days 
before the date of distribution. However, if the distributee, after 
having received the section 402(f) notice, affirmatively elects a 
distribution, a plan will not fail to satisfy section 402(f) merely 
because the distribution is made less than 30 days after the section 
402(f) notice was provided to the distributee, provided that the 
following requirement is met. The plan administrator must provide 
information to the distributee clearly indicating that (in accordance 
with the first sentence of this Q&A-2) the distributee has a right to 
consider the decision of whether or not to elect a direct rollover for 
at least 30 days after the notice is provided. The plan administrator 
may use any method to inform the distributee of the relevant time 
period, provided that the method is reasonably designed to attract the 
attention of the distributee. For example, this information could be 
provided either in the section 402(f) notice or stated in a separate 
document (e.g., attached to the election form) that is provided at the 
same time as the notice. For purposes of satisfying the requirement in 
the first sentence of this Q&A-2, the plan administrator may substitute 
the annuity starting date, within the meaning of Sec. 1.401(a)-20, Q&A-
10, for the date of distribution.
    Q-3: Must the plan administrator provide a separate section 402(f) 
notice for each distribution in a series of periodic payments that are 
eligible rollover distributions?
    A-3: No. In the case of a series of periodic payments that are 
eligible rollover distributions, the plan administrator is permitted to 
satisfy section 402(f) with respect to each payment in the series by 
providing the section 402(f) notice prior to the first payment in the 
series, in accordance with the rules in Q&A-1 and Q&A-2 of this section, 
and providing the notice at least once annually for as long as the 
payments continue. However, see Sec. 1.401(a)(31)-1, Q&A-12 for 
additional guidance if the plan administrator intends to treat a 
distributee's election to make or not make a direct rollover with 
respect to one payment in a series of periodic payments as applicable to 
all subsequent payments in the series (absent a subsequent change of 
election).
    Q-4: May a plan administrator post the section 402(f) notice as a 
means of providing it to distributees?
    A-4: No. The posting of the section 402(f) notice will not be 
considered provision of the notice. The written notice must be provided 
individually to any distributee of an eligible rollover distribution 
within the time period described in Q&A-2 and Q&A-3 of this section.

[T.D. 8619, 60 FR 49213, Sept. 22, 1995]



Sec. 1.402(g)-0  Limitation on exclusion for elective deferrals, table of contents.

    This section contains the captions that appear in Sec. 1.402(g)-1.

    Sec. 1.402(g)-1  Limitation on exclusion for elective deferrals.

(a) In general.
(b) Elective deferrals.
(c) Certain one-time irrevocable elections.
(d) Applicable limit.
    (1) In general.
    (2) Special adjustment for elective deferrals with respect to a 
section 403(b) annuity contract.
    (3) Special adjustment for elective deferrals with respect to a 
section 403(b) annuity contract for certain long-term employees.
    (4) Example.
(e) Treatment of excess deferrals.
    (1) Plan qualification.
    (i) Effect of excess deferrals.
    (ii) Treatment of excess deferrals as employer contributions.
    (iii) Definition of excess deferrals.

[[Page 341]]

    (2) Correction of excess deferrals after the taxable year.
    (3) Correction of excess deferrals during taxable year.
    (4) Plan provisions.
    (5) Income allocable to excess deferrals.
    (i) General rule.
    (ii) Method of allocating income.
    (iii) Alternative method of allocating income.
    (iv) Safe harbor method of allocating gap period income.
    (6) Coordination with distribution or recharacterization of excess 
contributions.
    (7) No employee or spousal consent required.
    (8) Tax treatment.
    (i) Corrective distributions on or before April 15 after close of 
taxable year.
    (ii) Special rule for 1987 and 1988 excess deferrals.
    (iii) Distributions of excess deferrals after correction period.
    (9) No reduction of required minimum distribution.
    (10) Partial correction.
    (11) Examples.
(f) Community property laws.
(g) Effective date.
    (1) In general.
    (2) Deferrals under collective bargaining agreements.
    (3) Transition rule.
    (4) Partnership cash or deferred arrangements.

[T.D. 8357, 56 FR 40545, Aug. 15, 1991]



Sec. 1.402(g)-1  Limitation on exclusion for elective deferrals.

    (a) In general. The excess of an individual's elective deferrals for 
any taxable year over the applicable limit for the year may not be 
excluded from gross income under sections 402(a)(8), 402(h)(1)(B), 
403(b), 408(k)(6), or 501(c)(18). Thus, an individual's elective 
deferrals in excess of the applicable limit for a taxable year (i.e., 
the individual's excess deferrals for the year) must be included in 
gross income for the year.
    (b) Elective deferrals. An individual's elective deferrals for a 
taxable year are the sum of the following:
    (1) Any elective contribution under a qualified cash or deferred 
arrangement (as defined in section 401(k)) to the extent not includible 
in the individual's gross income for the taxable year on account of 
section 402(a)(8) (before applying the limits of section 402(g) or this 
section).
    (2) Any employer contribution to a simplified employee pension (as 
defined in section 408(k)) to the extent not includible in the 
individual's gross income for the taxable year on account of section 
402(h)(1)(B) (before applying the limits of section 402(g) or this 
section).
    (3) Any employer contribution to an annuity contract under section 
403(b) under a salary reduction agreement (within the meaning of section 
3121(a)(5)(D)) to the extent not includible in the individual's gross 
income for the taxable year on account of section 403(b) (before 
applying the limits of section 402(g) or this section).
    (4) Any employee contribution designated as deductible under a trust 
described in section 501(c)(18) to the extent deductible from the 
individual's income for the taxable year on account of section 
501(c)(18) (before appying the limits of section 402(g) or this 
section). For purposes of this section, the employee contribution is 
treated as though it were excluded from the individual's gross income.
    (c) Certain one-time irrevocable elections. An employer contribution 
is not treated as an elective deferral under paragraph (b) of this 
section if the contribution is made pursuant to a one-time irrevocable 
election made by the employee:
    (1) In the case of an annuity contract under section 403(b), at the 
time of initial eligibility to participate in the salary reduction 
agreement;
    (2) In the case of a qualified cash or deferred arrangement, at a 
time when, under Sec. 1.401(k)-1(a)(3)(iv), the election is not treated 
as a cash or deferred election;
    (3) In the case of a trust described in section 501(c)(18), at the 
time of initial eligibility to have the employer contribute on the 
employee's behalf to the trust.
    (d) Applicable limit--(1) In general. Except as adjusted under 
paragraphs (d)(2) and (d)(3) of this section, the applicable limit for 
an individual's taxable year beginning in the 1987 calendar year is 
$7,000. This amount is increased for the taxable year beginning in 1988 
and subsequent calendar years in the same manner as the $90,000

[[Page 342]]

amount is adjusted under section 415(d).
    (2) Special adjustment for elective deferrals with respect to a 
section 403(b) annuity contract. The applicable limit for an individual 
who makes elective deferrals described in paragraph (b)(3) of this 
section for a taxable year is adjusted by increasing the applicable 
limit otherwise determined under paragraph (d)(1) of this section by the 
amount of the individual's elective deferrals described in paragraph 
(b)(3) of this section for the taxable year. This adjustment cannot 
cause the applicable limit for any taxable year to exceed $9,500.
    (3) Special adjustment for elective deferrals with respect to a 
section 403(b) annuity contract for certain long-term employees. The 
applicable limit for an individual who is a qualified employee (as 
defined in section 402(g)(8)(C)) and has elective deferrals described in 
paragraph (b)(3) of this section for a taxable year is adjusted by 
increasing the applicable limit otherwise determined under paragraphs 
(d)(1) and (d)(2) of this section in accordance with section 
402(g)(8)(A).
    (4) Example. The provisions of this paragraph (d) are illustrated by 
the following example.

    Example. Employer X maintains a cash or deferred arrangement under 
section 401(k), and offers its employees section 403(b) contracts to 
which elective deferrals may be made. For the 1987 taxable year, three 
of X's employees, A, B, and C, contribute $3,500, $1,000, and $8,500, 
respectively, as elective deferrals under the section 403(b) contract. 
The maximum amounts that A, B, and C may contribute to the cash or 
deferred arrangement are $6,000, $7,000, and $1,000, respectively. B may 
only contribute $7,000 under the cash or deferred arrangement because 
the special adjustment under paragraph (d)(2) of this section applies 
only to section 403(b) annuity contracts. B could, of course, contribute 
up to $2,500 under the section 403(b) contract (to the extent otherwise 
permitted), in addition to the $7,000 under the cash or deferred 
arrangement.

    (e) Treatment of excess deferrals--(1) Plan qualification--(i) 
Effect of excess deferrals. For plan years beginning before January 1, 
1988, a plan, annuity contract, simplified employee pension, or trust 
does not fail to meet the requirements of section 401(a), section 
403(b), section 408(k), or section 501(c)(18), respectively, merely 
because excess deferrals are made with respect to the plan, contract, 
pension, or trust. For plan years beginning after December 3l, 1987, see 
section 401(a)(30) and Sec. 1.401(a)-30 for the effect of excess 
deferrals on the qualification of a plan or trust under section 401(a). 
For purposes of determining whether a plan or trust complies in 
operation with section 401(a)(30), excess deferrals that are distributed 
under paragraph (e)(2) or (3) of this section are disregarded. Similar 
rules apply to annuity contracts under section 403(b), simplified 
employee pensions under section 408(k), and plans or trusts under 
section 501(c)(28).
    (ii) Treatment of excess deferrals as employer contributions. For 
other purposes of the Code, including sections 401(a)(4), 401(k)(3), 
404, 409, 411, 412, and 416, excess deferrals must be treated as 
employer contributions even if they are distributed in accordance with 
paragraph (e)(2) or (3) of this section. However, excess deferrals of a 
nonhighly compensated employee are not taken into account under section 
401(k)(3) (the actual deferral percentage test) to the extent the excess 
deferrals are prohibited under section 401(a)(30). Excess deferrals are 
also treated as employer contributions for purposes of section 415 
unless distributed under paragraph (e)(2) or (3) of this section.
    (iii) Definition of excess deferrals. The term ``excess deferrals'' 
means the excess of an individual's elective deferrals for any taxable 
year, as defined in Sec. 1.402(g)-1(b), over the applicable limit under 
section 402(g)(1) for the taxable year.
    (2) Correction of excess deferrals after the taxable year. A plan 
may provide that if any amount is included in the gross income of an 
individual under paragraph (a) of this section for a taxable year:
    (i) Not later than the first April 15 (or such earlier date 
specified in the plan) following the close of the individual's taxable 
year, the individual may notify each plan under which deferrals were 
made of the amount of the excess deferrals received by that plan. A plan 
may provide that an individual is

[[Page 343]]

deemed to have notified the plan of excess deferrals to the extent the 
individual has excess deferrals for the taxable year calculated by 
taking into account only elective deferrals under the plan and other 
plans of the same employer. A plan may instead provide that the employer 
may notify the plan on behalf of the individual under these 
circumstances.
    (ii) Not later than the first April 15 following the close of the 
taxable year, the plan may distribute to the individual the amount 
designated under paragraph (e)(2)(i) of this section (and any income 
allocable to that amount).
    (3) Correction of excess deferrals during taxable year--(i) A plan 
may provide that an individual who has excess deferrals for a taxable 
year may receive a corrective distribution of excess deferrals during 
the same year. This corrective distribution may be made only if all of 
the following conditions are satisfied:
    (A) The individual designates the distribution as an excess 
deferral. A plan may provide that an individual is deemed to have 
designated the distribution to the extent the individual has excess 
deferrals for the taxable year calculated by taking into account only 
elective deferrals under the plan and other plans of the same employer. 
A plan may instead provide that the employer may make the designation on 
behalf of the individual under these circumstances.
    (B) The correcting distribution is made after the date on which the 
plan received the excess deferral.
    (C) The plan designates the distribution as a distribution of excess 
deferrals.
    (ii) The provisions of this paragraph (e)(3) are illustrated by the 
following example:

    Example. S is a 62 year old individual who participates in Employer 
Y's qualified cash or deferred arrangement. In January 1991, S withdraws 
$5,000 from Y's cash or deferred arrangement. From February through 
September, S defers $900 per month. On October 1, S leaves Employer Y 
and becomes employed by Employer Z (unrelated to Y). During the 
remainder of 1991, S defers $1,800 under Z's qualified cash or deferred 
arrangement. In January 1992, S realizes that S has deferred a total of 
$9,000 in 1991, and therefore has a $525 excess deferral ($9,000 minus 
$8,475, the applicable limit for 1991). An additional $525 must be 
distributed to S before April 15, 1992, to correct the excess deferral. 
The $5,000 withdrawal did not correct the excess deferral because it 
occurred before the excess deferral was made.

    (4) Plan provisions. In order to distribute excess deferrals 
pursuant to paragraphs (e)(2) or (e)(3) of this section, a plan must 
contain language permitting distribution of excess deferrals. A plan may 
require the notification in paragraphs (e)(2) and (e)(3) of this section 
to be in writing and may require that the employee certify or otherwise 
establish that the designated amount is an excess deferral. A plan need 
not permit distribution of excess deferrals.
    (5) Income allocable to excess deferrals--(i) General rule. The 
income allocable to excess deferrals is equal to the sum of the 
allocable gain or loss for the taxable year of the individual and, if 
the plan so provides, the allocable gain or loss for the period between 
the end of the taxable year and the date of distribution (the ``gap 
period'').
    (ii) Method of allocating income. A plan may use any reasonable 
method for computing the income allocable to excess deferrals, provided 
that the method does not violate section 401(a)(4), is used consistently 
for all participants and for all corrective distributions under a plan 
for the plan year, and is used by the plan for allocating income to 
participants' accounts. See Sec. 1.401(a)(4)-1(c)(8).
    (iii) Alternative method of allocating income. A plan may allocate 
income to excess deferrals by multiplying the income for the taxable 
year (and the gap period, if the plan so provides) allocable to elective 
contributions by a fraction. The numerator of the fraction is the excess 
deferrals by the employee for the taxable year. The denominator of the 
fraction is equal to the sum of:
    (A) The total account balance of the employee attributable to 
elective contributions as of the beginning of the taxable year, plus
    (B) The employee's elective contributions for the taxable year (and 
the gap period, if the plan so provides).
    (iv) Safe harbor method of allocating gap period income. Under the 
safe harbor method, income on excess deferrals for the gap period is 
equal to 10 percent

[[Page 344]]

of the income allocable to excess deferrals for the taxable year 
(calculated under the method described in paragraph (e)(5)(iii) of this 
section), multiplied by the number of calendar months that have elapsed 
since the end of the taxable year. For purposes of calculating the 
number of calendar months that have elapsed under the safe harbor 
method, a corrective distribution that is made on or before the 
fifteenth day of the month is treated as made on the last day of the 
preceding month. A distribution made after the fifteenth day of the 
month is treated as made on the first day of the next month.
    (6) Coordination with distribution or recharacterization of excess 
contributions. The amount of excess deferrals that may be distributed 
under this paragraph (e) with respect to an employee for a taxable year 
is reduced by any excess contributions previously distributed or 
recharacterized with respect to the employee for the plan year beginning 
with or within the taxable year. In the event of a reduction under this 
paragraph (e)(6), the amount of excess contributions includible in the 
gross income of the employee and reported by the employer as a 
distribution of excess contributions is reduced by the amount of the 
reduction under this paragraph (e)(6). See Sec. 1.401(k)-1(f)(5)(i). In 
no case may an individual receive from a plan as a corrective 
distribution for a taxable year under paragraph (e)(2) or (e)(3) of this 
section an amount in excess of the individual's total elective deferrals 
under the plan for the taxable year.
    (7) No employee or spousal consent required. A corrective 
distribution of excess deferrals (and income) may be made under the 
terms of the plan without regard to any notice or consent otherwise 
required under sections 411(a)(11) or 417.
    (8) Tax treatment--(i) Corrective distributions on or before April 
15 after close of taxable year. A corrective distribution of excess 
deferrals within the period described in paragraph (e)(2) or (e)(3) of 
this section is excludable from the employee's gross income. However, 
the income allocable to excess deferrals is includible in the employee's 
gross income for the taxable year in which the allocable income is 
distributed. The corrective distribution of excess deferrals (and 
income) is not subject to the early distribution tax of section 72(t) 
and is not treated as a distribution for purposes of applying the excise 
tax under section 4980A.
    (ii) Special rule for 1987 and 1988 excess deferrals. Income on 
excess deferrals for 1987 or 1988 that were timely distributed on or 
before April 17, 1989, may be reported by the recipient either in the 
year described in paragraph (e)(8)(i) of this section, or in the year in 
which the employee would have received the elective deferrals had the 
employee originally elected to receive the amounts in cash.
    (iii) Distributions of excess deferrals after correction period. If 
excess deferrals (and income) for a taxable year are not distributed 
within the period described in paragraphs (e)(2) and (e)(3) of this 
section, they may only be distributed when permitted under section 
401(k)(2)(B). These amounts are includible in gross income when 
distributed, and are treated for purposes of the distribution rules 
otherwise applicable to the plan as elective deferrals (and income) that 
were excludable from the individual's gross income under section 402(g). 
Thus, any amount includible in gross income for any taxable year under 
this section that is not distributed by April 15 of the following 
taxable year is not treated as an investment in the contract for 
purposes of section 72 and is includible in the employee's gross income 
when distributed from the plan. Excess deferrals that are distributed 
under this paragraph (e)(8)(iii) are treated as employer contributions 
for purposes of section 415 when they are contributed to the plan.
    (9) No reduction of required minimum distribution. A distribution of 
excess deferrals (and income) under paragraphs (e)(2) and (e)(3) of this 
section is not treated as a distribution for purposes of determining 
whether the plan meets the minimum distribution requirements of section 
401(a)(9).
    (10) Partial correction. Any distribution under paragraphs (e)(2) or 
(e)(3) of this section of less than the entire amount of excess 
deferrals (and income) is treated as a pro rata distribution of excess 
deferrals and income.

[[Page 345]]

    (11) Examples. The provisions of this paragraph are illustrated by 
the following examples. Assume in Examples 1 and 2 that there is no 
income or loss allocable to the elective deferrals.

    Example 1. Employee A is a 60-year old highly compensated employee 
who participates in Employer M's cash or deferred arrangement. During 
the period of January through September of 1988, A contributed $7,000 to 
the arrangement in elective deferrals. During the same period A also 
contributed $813 in elective deferrals under a plan of an unrelated 
employer. In December of 1988, A made a withdrawal of $1,000 from 
Employer M's plan but did not designate this as a withdrawal of an 
excess deferral. In January of 1989, A notifies Employer M of an excess 
deferral, specifying a distribution of $500 for 1988. To correct the 
excess deferrals, A must receive this additional $500 even though A has 
already withdrawn $1,000 for 1988. A may exclude from income in 1988 
only $7,313. However, if the $500 is distributed by April 25, 1989, the 
distribution is excludable from A's gross income in 1989. Even if A 
withdraws the $500, M must take into account the entire $7,000 in 
computing A's actual deferral percentage for 1988.
    Example 2. (i) Corporation X maintains a cash or deferred 
arrangement. The plan year is the calendar year. For plan year 1989, all 
10 of X's employees are eligible to participate in the plan. The 
employees' compensation, contributions, and actual deferral ratios are 
shown in the following table:

------------------------------------------------------------------------
                                                                 Actual 
                                                                deferral
           Employee             Compensation    Contribution     ratio  
                                                               (percent)
------------------------------------------------------------------------
A............................        $140,000          $7,000        5.0
B............................          70,000           7,000       10.0
C............................          70,000           7,000       10.0
D............................          45,000           2,250        5.0
E............................          40,000           4,000       10.0
F............................          35,000           1,750        5.0
G............................          35,000             350        1.0
H............................          30,000           3,000       10.0
I............................          17,500               0          0
J............................          17,500               0        0.0
------------------------------------------------------------------------

    (ii) Employees A, B, and C are highly compensated employees within 
the meaning of section 414(q). Employees D, E, F, G, H, I, and J are 
nonhighly compensated employees. The actual deferral percentages for the 
highly compensated employees and nonhighly compensated employees are 
8.33 percent and 4.43 percent, respectively. These percentages do not 
satisfy the requirements of section 401(k)(3)(A)(ii). The actual 
deferral percentage for the highly compensated employees may not exceed 
6.43 percent.
    (iii) The plan reduces the actual deferral ratios of B and C to 7.14 
percent by distributing $2,002 ($7,000-.0714 x $70,000) to each in 
January 1990. Section 401(k)(3)(A)(ii) is therefore satisfied.
    (iv) In February 1990, B notifies X that B made elective deferrals 
of $2,000 under a qualified cash or deferred arrangement maintained by 
an unrelated employer in 1989, and requests distribution of $2,000 from 
X's plan. However, since B has already received a distribution of $2,002 
to meet the ADP test, no additional amounts are required or are 
permitted to be distributed as excess deferrals by this plan, and the 
prior distribution of excess contributions has corrected the excess 
deferrals. But X must report $2,000 as a distribution of an excess 
deferral and $2 as a distribution of an excess contribution.
    Example 3. Employee T has excess deferrals of $1,000. The income 
attributable to excess deferrals is $100. T properly notifies the 
employer, and requests a distribution of the excess deferral (and 
income) on February 1. The plan distributes $1,000 to T by April 15. 
Because the plan did not distribute any additional amount as income, 
$909 is treated as a distribution of excess deferrals, and $91 is 
treated as a distribution of earnings. With respect to amounts remaining 
in the account, $91 is treated as an elective deferral and is not 
included in T's investment in the contract. Because it was not 
distributed by the required date, the $91 is includible in gross income 
upon distribution as well as in the year of deferral.

    (f) Community property laws. This section is applied without regard 
to community property laws.
    (g) Effective date--(1) In general. Except as otherwise provided, 
the provisions of this section are effective for taxable years beginning 
after December 31, 1986.
    (2) Deferrals under collective bargaining agreements. In the case of 
a plan maintained pursuant to one or more collective bargaining 
agreements between employee representatives and one or more employers 
ratified before March 1, 1986, the provisions of this section do not 
apply to contributions made pursuant to the collective bargaining 
agreement for taxable years beginning before the earlier of January 1, 
1989, or the date on which the agreement terminates (determined without 
regard to any extension thereof after February 28, 1986). These 
contributions under a collective bargaining agreement are taken into 
account for purposes of applying this section to elective deferrals 
under plans not described in this paragraph (g)(2).

[[Page 346]]

    (3) Transition rule. For taxable years beginning before January 1, 
1992, a plan or an individual may rely on a reasonable interpretation of 
the rules set forth in section 402(g), as in effect during those years.
    (4) Partnership cash or deferred arrangements. For purposes of 
section 402(g), employer contributions for any plan year beginning after 
December 31, 1986, and before January 1, 1989, under an arrangement that 
directly or indirectly permits individual partners to vary the amount of 
contributions made on their behalf will be treated as elective 
contributions only if the arrangement was intended to satisfy and did 
satisfy the nondiscrimination test of section 401(k)(3) and 
Sec. 1.401(k)-1(b) for the plan year.

[T.D. 8357, 56 FR 40546, Aug. 15, 1991, as amended by T.D. 8581, 59 FR 
66180, Dec. 23, 1994]



Sec. 1.403(a)-1   Taxability of beneficiary under a qualified annuity plan.

    (a) An employee or retired or former employee for whom an annuity 
contract is purchased by his employer is not required to include in his 
gross income the amount paid for the contract at the time such amount is 
paid, whether or not his rights to the contract are forfeitable, if the 
annuity contract is purchased under a plan which meets the requirements 
of section 404(a)(2). For purposes of the preceding sentence, it is 
immaterial whether the employer deducts the amounts paid for the 
contract under such section 404(a)(2). See Sec. 1.403(b)-1 for rules 
relating to annuity contracts which are not purchased under qualified 
plans but which are purchased by organizations described in section 
501(c)(3) and exempt under section 501(a) or which are purchased for 
employees who perform services for certain public schools.
    (b) The amounts received by or made available to any employee 
referred to in paragraph (a) of this section under such annuity contract 
shall be included in gross income of the employee for the taxable year 
in which received or made available, as provided in section 72 (relating 
to annuities), except that certain total distributions described in 
section 403(a)(2) are taxable as long-term capital gains. For the 
treatment of such total distributions, see Sec. 1.403(a)-2. However, for 
taxable years beginning before January 1, 1964, section 72(e)(3) 
(relating to the treatment of certain lump sums), as in effect before 
such date, shall not apply to such amounts. For taxable years beginning 
after December 31, 1963, such amounts may be taken into account in 
computations under sections 1301 through 1305 (relating to income 
averaging).
    (c) If upon the death of an employee or of a retired employee, the 
widow or other beneficiary of such employee is paid, in accordance with 
the terms of the annuity contract relating to the deceased employee, an 
annuity or other death benefit, the extent to which the amounts received 
by or made available to the beneficiary must be included in the 
beneficiary's income under section 403(a) shall be determined in 
accordance with the rules presented in paragraph (a)(5) of 
Sec. 1.402(a)-1.
    (d) An individual contract issued after December 31, 1962, or a 
group contract, which provides incidental life insurance protection may 
be purchased under a qualified annuity plan. For the rules as to 
nontransferability of such contracts issued after December 31, 1962, see 
Sec. 1.401-9. For the rules relating to the taxation of the cost of the 
life insurance protection and the proceeds thereunder, see Sec. 1.72-16. 
Section 403(a) is not applicable to premiums paid after October 26, 
1956, for individual contracts which were issued prior to January 1, 
1963, and which provide life insurance protection.
    (e) As to inclusion of full-time life insurance salesmen within the 
class of persons considered to be employees, see section 7701(a)(20).
    (f) For purposes of this section and Sec. 1.403(a)-2, the term 
``employee'' includes a self-employed individual who is treated as an 
employee under section 401(c)(1) and paragraph (b) of Sec. 1.401-10, and 
the term ``employer'' means the person treated as the employer of such 
individual under section 401(c)(4). For the rules relating to annuity 
plans covering self-employed individuals, see section 404(a)(2) and 
Secs. 1.404(a)-8 and 1.401-10 through 1.401-13.

[[Page 347]]

    (g) For the treatment of amounts paid to provide medical benefits 
described in section 401(h) as defined in Sec. 1.401-14, see paragraph 
(h) of Sec. 1.72-15.

[T.D. 6500, 25 FR 11680, Nov. 26, 1960, as amended by T.D. 6676, 28 FR 
10143, Sept. 17, 1963; T.D. 6722, 29 FR 5073, Apr. 14, 1964; T.D. 6783, 
29 FR 18359, Dec. 24, 1964; T.D. 6885, 31 FR 7801, June 2, 1966]



Sec. 1.403(a)-2   Capital gains treatment for certain distributions.

    (a) If the total amounts payable with respect to any employee for 
whom an annuity contract has been purchased by an employer under a plan 
which--
    (1) Is a plan described in section 403(a)(1) and Sec. 1.403(a)-1, 
and
    (2) Requires that refunds of contributions with respect to annuity 
contracts purchased under such plan be used to reduce subsequent 
premiums on the contracts under the plan,

are paid to, or includible in gross income of, the payee within one 
taxable year of the payee by reason of the employee's death or other 
separation from the service, or death after such separation from the 
service, such total payments, to the extent they exceed the net amount 
contributed by the employee, shall be considered a gain from the sale or 
exchange of a capital asset held for more than six months. The ``net 
amount contributed by the employee'' is the amount actually contributed 
by the employee plus any amounts considered to be contributed by the 
employee under the rules of sections 72(f), 101(b), and paragraph (d) of 
Sec. 1.403(a)-1, reduced by any amounts theretofore distributed to him 
which were excludable from his gross income as a return of employee 
contributions. For example, if under an annuity contract purchased under 
a plan described in this section, the total distributions payable to the 
employee's widow are paid to her in the year in which the employee dies, 
in the amount of $8,000, and if $5,000 thereof is excludable under 
section 101(b), and if the employee made contributions of $600 and had 
received no payments, the remaining amount of $2,400 will be considered 
a gain from the sale or exchange of a capital asset held for more than 
six months.
    (b)(1) The term ``total amounts'' means the balance to the credit of 
an employee with respect to all annuities under the annuity plan which 
becomes payable to the payee by reason of the employee's death or other 
separation from the service, or by reason of his death after separation 
from the service. If an employee commences to receive annuity payments 
on retirement and then a lump sum payment is made to his widow upon his 
death, the capital gains treatment applies to the lump sum payment, but 
it does not apply to amounts received before the time the ``total 
amounts'' become payable. However, if the total amount to the credit of 
the employee at the time of his death or other separation from the 
service or death after separation from the service is paid or includible 
in the gross income of the payee within one taxable year of the payee, 
such amount is entitled to the capital gains treatment notwithstanding 
that in a later taxable year an additional amount is credited to the 
employee and paid to the payee.
    (2) If more than one annuity contract is received under the plan, 
the capital gains treatment does not apply to any amount received on the 
surrender thereof unless all contracts under the plan with respect to a 
particular employee are surrendered either at the time of the employee's 
death or other separation from the service or death after separation 
from the service. Thus, if an employee receives two contracts on 
separation from the service and surrenders one of them in the year of 
separation and receives payments under the other until his death, the 
capital gains treatment is applicable to the balance paid to his 
beneficiary on his death if paid within one taxable year of the 
beneficiary. The amount received by the employee on surrender of the 
contract in the year of his separation from the service, however, would 
not receive capital gains treatment since the balance to the credit of 
the employee with respect to all amounts under the plan did not become 
payable at that time.
    (3) If an employee retires and commences to receive an annuity but 
subsequently in some succeeding taxable

[[Page 348]]

year, he is paid a lump sum in settlement of all future annuity 
payments, the capital gains treatment does not apply to such lump sum 
settlement paid during the lifetime of the employee since it is not a 
payment on account of separation from the service, or death after 
separation, but is on account of the settlement of future annuity 
payments.
    (4) If the ``total amounts'' payable under all annuity contracts 
under the plan with respect to a particular employee are paid or 
includible in the gross income of several payees within one taxable year 
on account of the employee's death or other separation from the service 
or on account of his death after separation from the service, the 
capital gains treatment is applicable. Thus, if the balance to the 
credit of a deceased employee under all annuity contracts provided under 
an annuity plan becomes payable to two payees, the capital gains 
treatment is applicable provided the ``total amounts'' payable are 
received by or includible in the gross income of both payees within the 
same taxable year. However, if the ``total amounts'' payable are made 
available to each payee and one elects to receive his share in cash 
while the other makes a timely election under section 72(h) to receive 
his share as an annuity, the capital gains treatment does not apply to 
either payee.
    (5) For purposes of determining whether the total amounts payable to 
an employee have been paid within one taxable year, the term ``total 
amounts'' includes amounts under a plan which are attributable to 
contributions on behalf of an individual while he was self-employed in 
the business with respect to which the plan was established. Thus, the 
``total amounts'' payable are not paid within one taxable year if 
amounts remain payable which are so attributable.
    (6) The term ``total amounts'' does not include any amount which has 
been placed in a separate account for the funding of benefits described 
in section 401(h). Thus, a distribution under a qualified annuity plan 
may constitute a distribution of the total amounts payable with respect 
to an employee even though amounts attributable to the funding of 
section 401(h) medical benefits as defined in paragraph (a) of 
Sec. 1.401-14 are not so distributed.
    (c) The provisions of this section are not applicable to any amounts 
paid to a payee to the extent such amounts are attributable to 
contributions made on behalf of an employee while he was a self-employed 
individual in the business with respect to which the plan was 
established. For the taxation of such amounts, see Sec. 1.72-18. For the 
rules for determining the amount attributable to contributions on behalf 
of an employee while he was self-employed, see paragraphs (b)(4) and 
(c)(2) of such section.

[T.D. 6500, 25 FR 11681, Nov. 26, 1960, as amended by T.D. 6676, 28 FR 
10143, Sept. 17, 1963; T.D. 6722, 29 FR 5073, Apr. 14, 1964]



Sec. 1.403(b)-1   Taxability of beneficiary under annuity purchased by a section 501(c)(3) organization or public school.

    (a) Amounts paid by employer during taxable years beginning before 
January 1, 1958--(1) In general. If an amount is paid during a taxable 
year of an employee (or a retired or former employee) beginning before 
January 1, 1958, toward the purchase for such employee of an annuity 
contract and such purchase is not part of an annuity plan which meets 
the requirements of section 404(a)(2), then such amount is not required 
to be included in the gross income of such employee for such taxable 
year--
    (i) If such amount is paid by an employer which, at the time of the 
payment, is an organization described in section 501(c)(3) and exempt 
from tax under section 501(a), and
    (ii) If the purchase of the annuity contract is merely a supplement 
to the past or current compensation of such employee (within the meaning 
of subparagraph (2) of this paragraph).

For purposes of this paragraph, it is immaterial whether or not the 
employee's rights to the annuity contract are forfeitable.
    (2) Supplement to past or current compensation. For purposes of this 
paragraph, whether the purchase of an annuity contract is merely a 
``supplement to past or current compensation'' is to be determined by 
all the surrounding facts and circumstances. One

[[Page 349]]

of the pertinent facts to be taken into consideration is the ratio of 
the consideration paid by the employer for an employee's contract to the 
amount of his past or current compensation. For example, if the annual 
premium paid for an employee's contract is $1,000 and his annual salary 
is $10,000, the ratio indicates that the premium paid for the contract 
is merely a supplement to the employee's current compensation. If, 
however, an employee receives no current compensation, or the annual 
premiums paid for his annuity contract approximate his annual salary, 
the amount paid for his contract will be considered to be current 
compensation and taxable to the employee in the year in which it is paid 
by the employer. Other pertinent considerations are whether the annuity 
contract is purchased as a result of an agreement for a reduction of the 
employee's annual salary, or whether it is purchased at his request in 
lieu of an increase in current compensation to which he otherwise might 
be entitled. In such cases, the amount paid for the contract shall also 
be considered to be current compensation.
    (b) Amounts paid by employer during taxable years beginning after 
December 31, 1957--(1) In general. If amounts are contributed by an 
employer during a taxable year of an employee (or a retired or former 
employee) beginning after December 31, 1957, toward the purchase for 
such employee of an annuity contract and such purchase is not part of an 
annuity plan which meets the requirements of section 404(a)(2), then, to 
the extent such amounts do not exceed the exclusion allowance for such 
taxable year, they are not required to be included in the gross income 
of such employee for such taxable year, if at the time of the 
contribution--
    (i) The employer is an organization described in section 501(c)(3) 
and exempt from tax under section 501(a), or
    (ii) The employer is a State, a political subdivision of a State, or 
an agency or instrumentality of any one or more of the foregoing, and 
the employee is performing (or has performed) services for an 
educational institution (as defined in section 151(e)(4)), and
    (iii) The employee's rights under the annuity contract are 
nonforfeitable except for failure to pay future premiums.

See paragraph (d) of this section for rules relating to the computation 
of an employee's exclusion allowance for a taxable year.
    (2) Forfeitable rights which change to nonforfeitable rights. If an 
employee's rights under an annuity contract change from forfeitable to 
nonforfeitable rights, the amount which, under section 403(d), is 
includible in the gross income of such employee by reason of such change 
(computed without regard to subparagraph (1) of this paragraph) shall, 
for purposes of subparagraph (1) of this paragraph, be considered an 
amount contributed by the employer for such annuity contract as of the 
time the employee's rights under the contract change to nonforfeitable 
rights. Such amount will, therefore, be excludable from the employee's 
gross income for the taxable year in which the change occurs to the 
extent that it is so excludable under the rules contained in this 
section. In determining the extent to which such amount is excludable, 
this section shall be applied in the same manner as in the case of 
current employer contributions. Thus, no part of such amount is 
excludable if the employer is not an employer described in subparagraph 
(1) of this paragraph at the time the employee's rights under the 
annuity contract change from forfeitable to nonforfeitable rights. In 
addition, such amount will be excludable only to the extent it does not 
exceed the employee's exclusion allowance for the taxable year in which 
the change occurs. Since such an amount is considered as an amount 
contributed by the employer at the time the change occurs, it is 
immaterial whether the employer was an employer described in 
subparagraph (1) of this paragraph at the time the actual contributions 
were made.
    (3) Agreement to take a reduction in salary or to forego an increase 
in salary. (i) There is no requirement that the purchase of an annuity 
contract for an employee must be merely a ``supplement to past or 
current compensation'' in order for the exclusion provided by this

[[Page 350]]

paragraph to apply to employer contributions for such annuity contract. 
Thus, the exclusion provided by this paragraph is applicable to amounts 
contributed by an employer for an annuity contract as a result of an 
agreement with an employee to take a reduction in salary, or to forego 
an increase in salary, but only to the extent such amounts are earned by 
the employee after the agreement becomes effective. Such an agreement 
must be legally binding and irrevocable with respect to amounts earned 
while the agreement is in effect. Except as provided in subdivision (ii) 
of this subparagraph, the employee must not be permitted to make more 
than one agreement with the same employer during any taxable year of 
such employee beginning after December 31, 1963; the exclusion provided 
by this paragraph shall not apply to any amounts which are contributed 
under any further agreement made by such employee during the same 
taxable year beginning after such date. However, the employee may be 
permitted to terminate the entire agreement with respect to amounts not 
yet earned.
    (ii) An individual who is employed by an organization described in 
section 415(c)(4) may make a salary reduction agreement for his taxable 
year beginning in 1976 or 1977 at any time before the end of the 1976 or 
1977 taxable year, respectively, without the agreement's being 
considered a new agreement within the meaning of this subparagraph. The 
agreement for 1976 may be made on or before June 15, 1977, and the 
agreement for 1977 may be made on or before April 17, 1978. This special 
rule only applies if the individual makes a statement of intention in 
accordance with Sec. 11.415(c)(4)-1(b) electing, or determines his 
income tax liability for the taxable year in a way which is consistent 
with, one of the alternative limitations under section 415(c)(4) for 
1976 or 1977 (as the case may be). The salary reduction agreement for 
1976 may be made effective with respect to any amount earned during the 
taxpayer's most recent one-year period of service (as defined in 
paragraph (f) of this section) ending not later than the end of the 1976 
taxable year, notwithstanding subdivision (i) of this subparagraph. 
Similarly, the salary reduction agreement for 1977 may be made effective 
with respect to such period of service ending not later than the end of 
the 1977 taxable year. If the salary reduction agreement for 1976 is 
entered into at any time after December 31, 1976, or if the salary 
reduction agreement for 1977 is entered into at any time after December 
31, 1977, an amended Form W-2 must be filed on behalf of the individual.
    (iii) The rules of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example. A is an employee of X Organization (an employer described 
in section 501(c)(3) and exempt from tax under section 501(a) ) for the 
entire calendar year 1964. A uses the calendar year as a taxable year. 
A's annual salary as of January 1, 1964, is $12,000. On February 1, 
1964, A and his employer enter a binding and irrevocable agreement 
whereby A is to take a 10-percent reduction in salary (from $1,000 per 
month to $900 per month) and X Organization is to contribute $100 per 
month for an annuity contract described in section 403(b). The agreement 
also provides that A may terminate the entire agreement with respect to 
amounts not yet earned. Since the agreement to reduce A's salary and 
invest the amount of such reduction in an annuity contract was made 
after A earned his salary for January, A's current compensation for 
January is $1,000 even though the agreement may provide that X 
Organization shall contribute $100 with respect to January for the 
benefit of A for an annuity contract described in section 403(b). For 
February and subsequent months ending before July 1, 1964, X 
Organization contributes $100 per month for A's annuity. Thus, A's 
current compensation for each of these months is $900, and the $100 
which is contributed during such months by X Organization for an annuity 
contract for A is an employer contribution to which the exclusion 
provided in this paragraph applies. On July 1, 1964, A becomes entitled 
to a salary increase of $200 per month and, pursuant to the agreement of 
February 1, 1964, X Organization contributes 10 percent of such increase 
or an additional $20 per month for a section 403(b) annuity. For July 
and subsequent months ending before October 1, 1964, X Organization 
contributes $120 per month for A's annuity. Thus, A's current 
compensation for each of these months is $1,080, and the $120 which is 
contributed during such months by X Organization for an annuity contract 
for A is an employer contribution to which the exclusion provided in 
this paragraph applies. On November 1, 1964, A terminates the entire 
agreement with respect to amounts not yet

[[Page 351]]

earned. Since the termination occurred after A earned his salary for the 
month of October, the contribution for October is an employer 
contribution to which the exclusion provided in this paragraph applies. 
For the months November and December, A's full salary of $1,200 per 
month is includible in his gross income whether or not his employer 
makes contributions for a section 403(b) annuity.

    (4) Two or more annuity contracts. If, during a taxable year of an 
employee, this paragraph applies to amounts contributed (including 
amounts which are considered to be contributed under subparagraph (2) of 
this paragraph) by his employer for two or more annuity contracts for 
such employee, such two or more annuity contracts shall, for such 
taxable year, be considered a single contract for purposes of applying 
the rules contained in this paragraph.
    (5) Employees performing services for public schools. For purposes 
of this section, a person shall be considered an employee who performs 
services for an educational institution (as defined in section 
151(e)(4)) if he is performing services as an employee directly or 
indirectly for such an institution. Thus, for example, the principal, 
clerical employees, custodial employees, and teachers at a public 
elementary school are employees performing services directly for such an 
educational institution. An employee who performs services involving the 
operation or direction of a State's, or political subdivision's, 
education program as carried on through educational institutions (as 
defined in section 151(e)(4)) is an employee performing services 
indirectly for such institutions. An employee participating in an ``in-
home'' teaching program is included since such program is merely an 
extension of the activities carried on by such educational institutions. 
On the other hand, a person occupying an elective or appointive public 
office is not an employee performing services for an educational 
institution unless such office is one to which an individual is elected 
or appointed only if he has received training, or is experienced, in the 
field of education. The term ``public office'' includes any elective or 
appointive office of a State, a political subdivision of a State, or an 
agency or instrumentality of any one or more of the foregoing. Thus, for 
example, a regent or trustee of a State university or a member of a 
board of education is not an employee performing services for an 
educational institution. On the other hand, a commissioner or 
superintendent of education will generally be considered an employee 
performing services for an educational institution.
    (c) Taxation of amounts received under annuity contracts--(1) In 
general. The amounts received by or made available to any employee under 
an annuity contract to which paragraph (a) or (b) of this section 
applies shall be included in the gross income of the employee for the 
taxable year in which received or made available, as provided in section 
72 (relating to annuities). For taxable years beginning before January 
1, 1964, section 72(e)(3) (relating to the treatment of certain lump 
sums), as in effect before such date, shall not apply to any amount 
received by or made available to any such employee under such an annuity 
contract. For taxable years beginning after December 31, 1963, amounts 
received or made available to any such employee under such annuity 
contract may be taken into account in computations under sections 1301 
through 1305 (relating to income averaging).
    (2) Taxation of beneficiaries. If, upon the death of an employee or 
of a retired employee, the widow or other beneficiary of such employee 
is paid, in accordance with the terms of the annuity contract relating 
to the deceased employee, an annuity or other death benefit, the extent 
to which the amounts received by or made available to the beneficiary 
must be included in the beneficiary's income under subparagraph (1) of 
this paragraph shall be determined in accordance with the rules 
presented in paragraph (a)(5) of Sec. 1.402(a)-1.
    (3) Life insurance protection. An individual contract issued after 
December 31, 1962, or a group contract, which provides incidental life 
insurance protection may be purchased as an annuity contract to which 
paragraph (a) or (b) of this section applies. For the rules as to 
nontransferability of such contracts issued after December 31, 1962, see 
Sec. 1.401-9. For the rules relating to the

[[Page 352]]

taxation of the cost of the life insurance protection and the proceeds 
thereunder, see Sec. 1.72-16. Section 403(b) is not applicable to 
premiums paid after October 26, 1956, for individual contracts which 
were issued prior to January 1, 1963, and which provide life insurance 
protection.
    (d) Exclusion allowance--(1) In general. For purposes of paragraph 
(b) of this section, an employee's exclusion allowance for a taxable 
year is an amount equal to the excess, if any, of--
    (i) The amount determined by multiplying (a) 20 percent of such 
employee's includible compensation in respect of such taxable year, by 
(b) such employee's total number of years of service as of the close of 
such taxable year, over
    (ii) The aggregate of (a) the amounts which have been contributed by 
the employer for annuity contracts for such employee and which were 
excludable from the gross income of the employee for any taxable year 
prior to the taxable year for which the exclusion allowance is being 
determined, and (b) the amounts of compensation excludable from the 
gross income of the employee under section 457(a) (relating to eligible 
State deferred compensation plans) for any prior taxable year that is 
taken into account as a year of service under paragraph (f) of this 
section.

Compensation deferred under an eligible State deferred compensation plan 
shall be taken into account as described in subdivision (ii) of this 
subparagraph even if the entity sponsoring the eligible plan is not the 
employer purchasing the annuity contract with respect to which the 
employee's exclusion allowance is to be determined. See paragraph (e) of 
this section for the definition of an employee's includible compensation 
in respect of a taxable year and paragraph (f) of this section for rules 
for computing an employee's total number of years of service for an 
employer.
    (2) More than one employer. If, during a taxable year of an 
employee, amounts are contributed for annuity contracts for such 
employee by two or more employers described in paragraph (b)(1) (i) or 
(ii) of this section, a separate exclusion allowance shall be computed 
with respect to each employer. In such a case, therefore, there shall 
not be taken into account, in computing the exclusion allowance with 
respect to one employer, the ``includible compensation'' received by the 
employee from any other employer, the employee's years of service with 
any other employer, or amounts which have been contributed by any other 
employer for annuity contracts for such employee.
    (3) Amounts previously contributed by the employer which were 
excludable from the employee's gross income. In computing, for purposes 
of subparagraph (1)(ii) of this paragraph, the aggregate of the amounts 
which have been contributed by an employer for annuity contracts for an 
employee and which were excludable from the gross income of the employee 
for any taxable year prior to the taxable year for which the exclusion 
allowance is being determined, there shall be included all contributions 
made by the employer for the benefit of the employee--
    (i) Which, under section 402(a) or section 403(a), were excludable 
from the employee's gross income for any such prior taxable year by 
reason of being contributions to a trust described in section 401(a) and 
exempt from tax under section 501(a) or contributions toward the 
purchase of an annuity contract under a plan which meets the 
requirements of section 404(a)(2) (whether forfeitable or 
nonforfeitable); or
    (ii) Which, under section 405(d), were excludable from the 
employee's gross income for any such prior taxable year by reason of 
being contributions toward the purchase of United States bonds under a 
plan which meets the requirements of section 405(a)(1); or
    (iii) Which were excludable from the employee's gross income for any 
such prior taxable year by reason of being contributions described in 
paragraph (a) or (b) of this section; or
    (iv) (a) Which were excludable from the employee's gross income for 
the taxable year when made solely by reason of the fact that the 
employee's rights to such contributions were forfeitable at the time 
they were made (and not for any of the reasons described in subdivisions 
(i), (ii), and (iii) of this subparagraph);

[[Page 353]]

    (b) With respect to which the employee's rights changed to 
nonforfeitable rights prior to the taxable year for which the exclusion 
allowance is being determined; and
    (c) Which were not, under section 403(d) and without regard to 
paragraph (b) of this section, includible in the employee's gross income 
for the taxable year in which his rights to such contributions changed 
from forfeitable to nonforfeitable rights.

For purposes of subdivisions (i) and (iii) of this subparagraph, all 
references to provisions of the Internal Revenue Code of 1954 and to 
provisions of the regulations under such Code shall also be considered 
references to the corresponding provisions of prior law and regulations. 
See subparagraph (4) of this paragraph for rules relating to the 
allocation of employer contributions to an employee where the actual 
contributions are not allocated among individual employees; or
    (v) Which were contributions to a section 403(b) annuity contract 
for a prior taxable year and which exceeded the limitations of section 
415(c)(1) applicable to the employee. See Sec. 1.415-6(e)(1)(ii) for a 
more detailed discussion of this rule. See also Sec. 1.415-9(c) for 
rules relating to the treatment of certain contributions to a section 
403(b) annuity contract which are excess contributions because of the 
aggregation of the annuity contract with a qualified plan.
    (4) Determination of excludable amounts by allocation of 
contributions. If, for any employee, the actual amounts of employer 
contributions to a defined benefit plan described in subparagraph (3) of 
this paragraph are not known, such amounts shall be determined under the 
formula described in this subparagraph or under any other method 
utilizing recognized actuarial principles which are consistent with the 
provisions of the plan under which such contributions are made and the 
method adopted by the employer for funding the benefits under the plan. 
If the formula described in this subparagraph is to be used, the 
contributions made by the employer for the benefit of the employee as of 
the end of any taxable year shall be deemed to be the product of the 
quantities described in subdivisions (i), (ii), (iii), and (iv) of this 
subparagraph. Such quantities are--
    (i) The projected annual amount of the employee's pension (as of the 
end of the taxable year) to be provided at normal retirement age from 
employer contributions, based upon the provisions of the plan in effect 
at such time and upon the assumption of the employee's continued 
employment with his present employer at his then current salary rate.
    (ii) The value, from Table I below, at normal retirement age of an 
annuity of $1.00 per annum payable in equal monthly installments during 
the life of the employee, based upon the normal retirement age as 
defined in the plan.
    (iii) The amount from Table II below (representing the level annual 
contribution which will accumulate to $1.00 at normal retirement age) 
for the sum of (a) the number of years remaining from the end of the 
taxable year to normal retirement age and (b) the lesser of the number 
of years of service credited through the end of the taxable year or the 
number of years that the plan has been in existence at such time.
    (iv) The lesser of the number of years of service credited through 
the end of the taxable year or the number of years that the plan has 
been in existence at such time.

 Table I--Value at Normal Retirement Ages of Annuity of $1.00 per Annum 
  Payable in Equal Monthly Installments During the Life of the Employee 
            [For taxable years beginning after July 1, 1986]            
------------------------------------------------------------------------
                             Ages                                Values 
------------------------------------------------------------------------
40...........................................................      11.49
41...........................................................      11.40
42...........................................................      11.31
43...........................................................      11.22
44...........................................................      11.12
                                                                        
45...........................................................      11.01
46...........................................................      10.91
47...........................................................      10.79
48...........................................................      10.68
49...........................................................      10.56
                                                                        
50...........................................................      10.43
51...........................................................      10.30
52...........................................................      10.18
53...........................................................      10.04
54...........................................................       9.89
                                                                        
55...........................................................       9.75
56...........................................................       9.60
57...........................................................       9.44
58...........................................................       9.28
59...........................................................       9.13
                                                                        

[[Page 354]]

                                                                        
60...........................................................       8.96
61...........................................................       8.79
62...........................................................       8.62
63...........................................................       8.44
64...........................................................       8.25
                                                                        
65...........................................................       8.08
66...........................................................       7.88
67...........................................................       7.70
68...........................................................       7.50
69...........................................................       7.29
                                                                        
70...........................................................       7.10
71...........................................................       6.88
72...........................................................       6.68
73...........................................................       6.46
74...........................................................       6.25
                                                                        
75...........................................................       6.03
76...........................................................       5.82
77...........................................................       5.61
78...........................................................       5.40
79...........................................................       5.20
80...........................................................       4.99
------------------------------------------------------------------------

    Note: If the normal form of retirement benefit under the plan is 
other than a straight life annuity, the value from Table I above should 
be divided by the figure set forth below opposite the normal form of 
retirement benefit provided by the plan:

Annuity for 5 years certain and life thereafter................     0.97
Annuity for 10 years certain and life thereafter...............     0.90
Annuity for 15 years certain and life thereafter...............     0.80
Annuity for 20 years certain and life thereafter...............     0.70
Life annuity with installment refund...........................     0.80
Life annuity with cash refund \1\..............................     0.75
                                                                        
\1\ The term ``cash refund'' refers to refund of accumulated employer   
  contributions, and does not refer to refund of employee contributions 
  only, often referred to as ``modified cash refund''.                  


  Table II--Level Annual Contribution Which Will Accumulate To $1.00 at 
                         End of Number of Years                         
            [For taxable years beginning after July 1, 1986]            
------------------------------------------------------------------------
                       Number of years                          Amounts 
------------------------------------------------------------------------
1............................................................    $1.0000
2............................................................      .4808
3............................................................      .3080
4............................................................      .2219
5............................................................      .1705
                                                                        
6............................................................      .1363
7............................................................      .1121
8............................................................      .0940
9............................................................      .0801
10...........................................................      .0690
                                                                        
11...........................................................      .0601
12...........................................................      .0527
13...........................................................      .0465
14...........................................................      .0413
15...........................................................      .0368
                                                                        
16...........................................................      .0330
17...........................................................      .0296
18...........................................................      .0267
19...........................................................      .0241
20...........................................................      .0219
                                                                        
21...........................................................      .0198
22...........................................................      .0180
23...........................................................      .0164
24...........................................................      .0150
25...........................................................      .0137
                                                                        
26...........................................................      .0125
27...........................................................      .0114
28...........................................................      .0105
29...........................................................      .0096
30...........................................................      .0088
                                                                        
31...........................................................      .0081
32...........................................................      .0075
33...........................................................      .0069
34...........................................................      .0063
35...........................................................      .0058
                                                                        
36...........................................................      .0053
37...........................................................      .0049
38...........................................................      .0045
39...........................................................      .0042
40...........................................................      .0039
                                                                        
41...........................................................      .0036
42...........................................................      .0033
43...........................................................      .0030
44...........................................................       0028
45...........................................................      .0026
                                                                        
46...........................................................      .0024
47...........................................................      .0022
48...........................................................      .0020
49...........................................................      .0019
50...........................................................      .0017
------------------------------------------------------------------------

    (5) Election to have allowance determined under section 415 rules. 
Under section 415(c)(4)(D), an employee may elect to have the provisions 
of section 415(c)(4)(C) (relating to special limitations for annuity 
contracts purchased by educational organizations, hospitals and home 
health service agencies) apply for a taxable year. If the employee so 
elects, his exclusion allowance is the maximum amount under section 415 
that could be contributed by the employer for the benefit of the 
employee if the annuity contract for the benefit of the employee were 
treated as a defined contribution plan maintained by the employer. Thus, 
the exclusion allowance for the taxable year of an employee who makes 
the election

[[Page 355]]

may not exceed the limitation on contributions and other additions (as 
described in Sec. 1.415-6) applicable to the employee for that taxable 
year. See Sec. 1.415-7 for provisions applicable in the event an 
employer maintains a defined benefit plan and a defined contribution 
plan for the same employee. See Sec. 1.415-8 for provisions applicable 
in the event an employer maintains more than one defined contribution 
plan covering the same employee.
    (e) Includible compensation--(1) In general. For purposes of 
computing, under paragraph (d) of this section, an employee's exclusion 
allowance for a taxable year, such employee's includible compensation in 
respect of such taxable year means the amount of compensation from the 
employer--
    (i) Which was earned during the most recent period (ending not later 
than the close of the employee's taxable year for which the exclusion 
allowance is being determined) that, under paragraph (f) of this 
section, may be counted as one-year of service,
    (ii) Which is includible in the employee's gross income, and
    (iii) In the case of an employee of an employer described in 
paragraph (b)(1)(ii) of this section, which is attributable to services 
performed for an educational institution (as defined in section 
151(e)(4)).

See subparagraph (2) of this paragraph for special rules for determining 
the amount of compensation which is includible in the employee's gross 
income.
    (2) Special rules for determining the amount of compensation 
includible in the employee's gross income. For purposes of subparagraph 
(1) of this paragraph, the amount of compensation which is includible in 
the employee's gross income shall be computed without regard to the 
exclusions allowed by section 105(d) (relating to wage continuation 
plans) and section 911 (relating to earned income from sources without 
the United States). Therefore, although amounts received by the employee 
from the employer while he is absent from work on account of personal 
injuries or sickness may be excludable from his gross income under 
section 105(d), such amounts are, nevertheless, considered as includible 
in his gross income for purposes of computing his includible 
compensation. On the other hand, in computing the amount which is 
includible in the gross income of the employee for purposes of 
subparagraph (1) of this paragraph, there shall not be included any 
amount which is contributed by the employer for an annuity contract to 
which paragraph (b) of this section applies. Thus, although the amount 
of any employer contributions for an annuity contract to which paragraph 
(b) of this section applies is, to the extent it exceeds in any taxable 
year the employee's exclusion allowance for such year, includible in the 
employee's gross income for that year, such amount is not considered as 
includible in the employee's gross income for purposes of computing his 
includible compensation for that year.
    (3) Period during which compensation must be earned. For purposes of 
computing an employee's exclusion allowance for a taxable year, there 
may not be taken into account, as includible compensation, any 
compensation which was earned by the employee during a taxable year 
ending after the taxable year for which the exclusion allowance is being 
determined. On the other hand, an employee's includible compensation may 
include all or part of his compensation earned during a taxable year 
prior to the taxable year for which the exclusion allowance is being 
determined. Such a situation can occur, for example, when an employer 
purchases an annuity contract for a retired employee, or when an 
employer purchases an annuity contract for a part-time employee whose 
most recent one-year period of service (within the meaning of paragraph 
(f) of this section) extends over more than one taxable year of such 
employee. For purposes of this subparagraph, it is immaterial when the 
compensation is actually received by the employee or for what taxable 
year it is includible in his gross income.
    (4) Status of employer. In computing an employee's exclusion 
allowance for a taxable year, there is not taken into account, as 
includible compensation, any compensation which was earned during a 
period when the employer was not an employer described in paragraph 
(b)(1) (i) or (ii) of this section since

[[Page 356]]

under paragraph (f)(2) of this section an employee is not considered to 
be in the service of the employer for any such period. On the other 
hand, it is immaterial whether the employer is an employer described in 
paragraph (b)(1) (i) or (ii) of this section at the time the 
compensation is actually received by the employee. Thus, if an employee 
receives compensation during his 1961 taxable year for services 
performed during his 1960 taxable year, such compensation can qualify as 
includible compensation if his employer was an employer described in 
paragraph (b)(1) (i) or (ii) of this section during 1960, even though 
such employer was not such an employer during 1961. See, also, paragraph 
(b) of this section which provides that the exclusion allowance is only 
applicable with respect to contributions which are made by an employer 
at a time when such employer is an employer described in paragraph 
(b)(1) (i) or (ii) of this section.
    (f) Years of service--(1) In general. In computing an employee's 
exclusion allowance for a taxable year, it is necessary to determine 
such employee's number of years of service for the employer as of the 
close of such taxable year. For this purpose, the number of years of 
service of an employee for an employer shall be determined in accordance 
with the rules set forth in this paragraph. In addition, such rules are 
applicable in determining, for purposes of paragraph (e) of this 
section, an employee's most recent one-year period of service.
    (2) Exempt status requirement. For purposes of determining an 
employee's number of years of service for an employer and his most 
recent one-year period of service for such employer, an employee shall 
not be considered to be employed by the employer, or to be in the 
service of the employer, during any period that the employer is not an 
employer described in paragraph (b)(1) (i) or (ii) of this section, or, 
in the case of an employee of an employer described in paragraph 
(b)(1)(ii) of this section, during any period when the employee is not 
performing services for an educational institution (as defined in 
section 151(e)(4)). The rule in this subparagraph may be illustrated by 
the following example: A was employed on a full-time basis by the X 
scientific organization during the whole of 1959 and 1960 and during 
half of 1961. Both A and the X Organization use the calendar year as 
their taxable year. The X Organization was an organization described in 
section 501(c)(3) and exempt from tax under section 501(a) during the 
years 1959 and 1961, but not during the year 1960. For purposes of 
determining A's exclusion allowance for 1961, he is considered to have 
1\1/2\ years of service (his service during 1959 and 1961) and his most 
recent one-year period of service ending not later than the close of 
1961 consists of his service during 1961 (which is equal to \1/2\ year 
of service) and his service during the last half of 1959 (which is equal 
to another \1/2\ year of service).
    (3) Service included. For purposes of computing an employee's 
exclusion allowance for a taxable year, there may be taken into account, 
in determining his number of years of service, all service performed by 
him as of the close of such taxable year. Therefore, whenever possible, 
service performed during each of the employee's taxable years should be 
considered separately in arriving at his total number of years of 
service. For example, if an employee who reports his income on a 
calendar year basis is employed on a full-time basis on July 1, 1959, 
and continues on a full-time basis through December 31, 1960, his number 
of years of service as of the close of his 1960 taxable year should, if 
possible, be computed as follows:

(a) Number of years of service performed during 1959 taxable year  \1/2\
(b) Number of years of service performed during 1960 taxable year      1
(c) Total number of years of service as of close of 1960 taxable        
 year ((a)+(b))..................................................   1\1/
                                                                      2\
                                                                        

However, in determining what constitutes a full year of service, the 
employer's annual work period, and not the employee's taxable year, is 
the standard of measurement. For example, in determining whether a 
professor is employed full time, the number of months in the school's 
academic year shall be the standard of measurement.
    (4) Full-time employee for full year. (i) Each full year during 
which an individual was employed full time shall be

[[Page 357]]

considered as one year of service. In determining whether an individual 
is employed full-time, the amount of work which he is required to 
perform shall be compared with the amount of work which is normally 
required of individuals holding the same position with the same employer 
and who generally derive the major portion of their personal service 
income from such position.
    (ii)(a) In measuring the amount of work required of individuals 
holding a particular position, any method that reasonably and accurately 
reflects such amount may be used. For example, the number of hours of 
classroom instruction is only an indication of the amount of work 
required, but it may be used as a measure.
    (b) In determining whether positions with the same employer are the 
same, all of the facts and circumstances concerning the positions shall 
be considered, including the work performed, the methods by which 
compensation is computed, and the descriptions (or titles) of the 
positions. For example, an assistant professor employed in the English 
department of a university will be considered a full-time employee if 
the amount of work that he is required to perform is the same as the 
amount of work normally required of assistant professors of English at 
that university who derive the main portion of their personal service 
income from such position.
    (c) In case an individual's position is not the same as another with 
his employer, the rules of this paragraph shall be applied by 
considering the same position with similar employers or similar 
positions with the same employer.
    (iii) A full year of service for a particular position means the 
usual annual work period of individuals employed full-time in that 
general type of employment at the place of employment. For example, if a 
doctor employed by a hospital works throughout the 12 months of a year 
except for a one-month vacation, such doctor will be considered as being 
employed for a full year, if the other doctors at that hospital work 11 
months of the year with a one-month vacation. Similarly, if the usual 
annual work period at a university consists of the fall and spring 
semesters, an instructor at that university who teaches those semesters 
will be considered as working a full year.
    (5) Other employees. (i) An individual shall be treated as having a 
fraction of a year of service for each year during which he was a full-
time employee for part of the year or for each year during which he was 
a part-time employee for the entire year or for a part of the year.
    (ii) In determining the fraction which represents the fractional 
year of service for an individual employed full time for part of a year, 
the numerator shall be the number of weeks (or months) during which the 
individual was a full-time employee in a position during that year, and 
the denominator shall be the number of weeks (or months) which is 
considered under subparagraph (4)(iii) of this paragraph as the usual 
annual work period for that position. For example, if an instructor is 
employed full time by a university for the 1959 spring semester (which 
lasts from February 1959 through May 1959), and the academic year of the 
university is 8 months long, beginning in October 1958, and ending in 
May 1959, then he is considered as having completed \4/8\ of a year of 
service.
    (iii) In determining the fraction which represents the fractional 
year of service of an individual who is employed part time for a full 
year, the numerator shall be the amount of work required to be performed 
by the individual, and the denominator shall be the amount of work 
normally required of individuals who hold the same position. The amount 
of work required to be performed by the individual and the amount of 
work normally required of individuals holding the same position shall be 
determined in accordance with the principles of subparagraph (4) of this 
paragraph. Thus, if a practicing physician teaches one course at a local 
medical school 3 hours per week for two semesters and other faculty 
members at that medical school teach 9 hours per week for two semesters, 
then the practicing physician is considered as having completed \3/9\ of 
a year of service.
    (iv) In determining the fraction representing the fractional year of 
service

[[Page 358]]

of an individual who is employed part time for part of a year, it is 
necessary to compute the fractional year of service if the individual 
were a part-time employee for a full year, and the fractional year of 
service if the individual were a full-time employee for the part of a 
year. The two fractions shall be multiplied and the product is the 
fractional year of service of such individual who is employed part time 
for part of a year. For example, if an attorney who is a specialist in a 
subject teaches a course in that subject for 3 hours per week for one 
semester at a nearby law school, and the full-time instructors at that 
law school teach 12 hours per week for two semesters, then the 
fractional part of a year of service for such part-time instructor is 
computed as follows: The fractional year of service if the instructor 
were a part-time employee for a full year is \3/12\ (number of hours 
employed divided by the usual number of hours of work required for that 
position); the fractional year of service if the instructor were a full-
time employee for part of a year is \1/2\ (period worked or one 
semester, divided by usual work period, or 2 semesters). These fractions 
are multiplied to obtain the fractional year of service: \3/12\ times 
\1/2\, or \3/24\ (\1/8\).
    (6) Less than one year of service considered as one year. If, at the 
close of a taxable year, an employee has, under the rules in this 
paragraph, a period of service of less than one year, such employee 
shall, nevertheless, be considered to have one year of service for 
purposes of computing his exclusion allowance for that taxable year. 
Such period of service of less than one year shall also be considered to 
be such employee's most recent one-year period of service for purposes 
of determining his includible compensation.
    (7) Most recent one-year period of service. (i) In determining, for 
purposes of paragraph (e) of this section (relating to includible 
compensation), an employee's most recent one-year period of service, 
there is first taken into account all service performed by the employee 
during the taxable year for which the exclusion allowance is being 
determined. For this purpose, therefore, an employee's most recent one-
year period of service may not be the same as his employer's most recent 
annual work period. The rule in this subdivision may be illustrated by 
the following example: A, a professor who reports his income on a 
calendar year basis, is employed by a university on a full-time basis 
during the university's 1959-1960 and 1960-1961 academic years (October 
through May). For purposes of computing A's exclusion allowance for his 
1960 taxable year, his most recent one-year period of service consists 
of his service performed during January through May, 1960 (which is part 
of the 1959-1960 academic year) and his service performed during October 
through December 1960 (which is part of the 1960-1961 academic year).
    (ii) In the case of a part-time employee or a full-time employee who 
is employed for only part of a year, it will be necessary to aggregate 
his most recent periods of service to determine his most recent one-year 
period of service. In such a case, there is first taken into account his 
service during the taxable year for which the exclusion allowance is 
being determined; then there is taken into account his service during 
his next preceding taxable year and so forth until his service equals, 
in the aggregate, one year of service. For example, if an employee, who 
reports his income on the calendar year basis, is employed on a full-
time basis during the months July through December 1959 (\1/2\ year of 
service), July through December 1960 (\1/2\ year of service), and 
October through December 1961 (\1/4\ year of service), his most recent 
one-year period of service for purposes of computing his exclusion 
allowance for 1961 consists of his service during 1961 (\1/4\ year of 
service), his service during 1960 (\1/2\ year of service), and his 
service during the months October through December 1959 (\1/4\ year of 
service).
    (g) Illustration of computation of exclusion allowance. The 
exclusion provided under paragraph (b) of this section may be 
illustrated by the following example: A, a professor who reports his 
income on the calendar year basis, became a full-time employee of X 
University on October 1, 1958 (beginning of X University's 1958-1959 
academic year) and continued as a full-time employee for the academic 
years 1958-1959, 1959-1960, and 1960-1961. X University was,

[[Page 359]]

during all such academic years, an organization described in section 
501(c)(3) and exempt from tax under section 501(a). X University's 
academic year runs for a period of 8 months: October through May. A 
received an annual salary, all of which was includible in his gross 
income, of $8,000 for the 1958-1959 academic year, $8,800 for the 1959-
1960 academic year, and $9,600 for the 1960-1961 academic year. Starting 
in 1958, X University contributed amounts toward the purchase of annuity 
contracts for A and such purchase was not part of a qualified annuity 
plan. X University paid, as premiums for such contracts, $1,000 in 1958, 
$2,000 in 1959, $2,400 in 1960, and $1,400 in 1961. The amount of such 
premiums which is excludable from A's gross income for the year in which 
paid is computed as follows:

                            1958                                        
(1) Amount contributed by employer for annuity contracts in             
 1958.......................................................   $1,000.00
(2) Includible compensation for most recent one-year period             
 of service (since A was employed for only \3/8\ of a year              
 at the close of 1958, this period is counted as most recent            
 one-year period of service) \3/8\  x  $8,000...............   $3,000.00
(3) 20%  x  includible compensation.........................     $600.00
(4) Number of years of service (although A was employed for             
 less than a year, he is considered to have one-year of                 
 service)...................................................           1
(5) Item (4)  x  item (3)...................................     $600.00
(6) Contributions excludable in prior taxable years of A....        None
(7) Amount excludable from A's gross income for 1958 ((5)--             
 (6)).......................................................     $600.00
(8) Amount includible in A's gross income for 1958 ((1)-(7))     $400.00
                                                                        
                                  1959                                  
                                                                        
(9) Amount contributed by employer for annuity contracts in             
 1959.......................................................   $2,000.00
(10) Includible compensation for most recent one-year period            
 of service. (\3/8\  x  $8,800+\5/8\ x $8,000)..............   $8,800.00
(11) 20%  x  includible compensation........................   $1,660.00
(12) Number of years of service.............................      1\3/8\
(13) Item (12)  x  item (11)................................   $2,282.50
(14) Contributions excludable in prior taxable years of A               
 (item 7))..................................................     $600.00
(15) Amount excludable from A's gross income for 1959 ((13)-            
 (14))......................................................   $1,682.50
(16) Amount includible in A's gross income for 1959 ((9)-               
 (15))......................................................     $317.50
                                                                        
                                  1960                                  
                                                                        
(17) Amount contributed by employer for annuity contracts in            
 1960.......................................................   $2,400.00
(18) Includible compensation for most recent one-year period            
 of service (\3/8\ x $9,600+\5/8\ x $8,800).................   $9,100.00
(19) 20%  x  includible compensation........................   $1,820.00
(20) Number of years of service.............................      2\3/8\
(21) Item (20)  x  item (19)................................   $4,322.50
(22) Contributions excludable in prior taxable years ((7) +             
 (15))......................................................   $2,282.50
(23) Amount excludable from A's gross income for 1960 ((21) -           
  (22)).....................................................   $2,040.00
(24) Amount includible in A's gross income for 1960 ((17) -             
 (23))......................................................     $360.00
                                                                        
                                  1961                                  
                                                                        
(25) Amount contributed by employer for annuity contracts in            
 1961.......................................................   $1,400.00
(26) Includible compensation for most recent one-year period            
 of service (\5/8\  x  $9,600+\3/8\ x $9,600)...............   $9,600.00
(27) 20%  x  includible compensation........................   $1,920.00
(28) Number of years of service.............................           3
(29) Item (28)  x  item (27)................................   $5,760.00
(30) Contributions excludable in prior taxable years ((7) +             
 (15) + (23))...............................................   $4,322.50
(31) Amount excludable from A's gross income for 1961 (item             
 (25) since it is less than (29) - (30))....................   $1,400.00
(32) Amount includable in A's gross income for 1961 ((25) -             
 (31))......................................................        None
                                                                        

[T.D. 6783, 29 FR 18360, Dec. 24, 1964, as amended by T.D. 6885, 31 FR 
7802, June 2, 1966; T.D. 7748, 46 FR 1696, Jan. 7, 1981; T.D. 7836, 47 
FR 42337, Sept. 27, 1982; T.D. 8115, 51 FR 45736, Dec. 19, 1986]



Sec. 1.403(b)-2  Eligible rollover distributions; questions and answers.

    The following questions and answers relate to eligible rollover 
distributions from annuities, custodial accounts, and retirement income 
accounts described in section 403(b) of the Internal Revenue Code of 
1986, as amended by sections 521 and 522 of the Unemployment 
Compensation Amendments of 1992 (Public Law 102-318, 106 Stat. 290) 
(UCA). For additional UCA guidance under sections 401(a)(31), 402(c), 
402(f), and 3405(c), see Secs. 1.401(a)(31)-1, 1.402(c)-2, 1.402(f)-1, 
and Sec. 31.3405(c)-1 of this chapter, respectively.

                            List of Questions

    Q-1: What is the rule regarding distributions that may be rolled 
over to an eligible retirement plan from annuities, custodial accounts, 
and retirement income accounts described in section 403(b)?
    Q-2: Is a section 403(b) annuity required to provide the direct 
rollover option described in section 401(a)(31) as a distribution 
option?
    Q-3: Is the payor of a section 403(b) annuity required to provide a 
distributee of an eligible rollover distribution with an explanation of 
the direct rollover option?
    Q-4: When do sections 403 (b)(8) and (b)(10), as amended by UCA, and 
this Sec. 1.403(b)-2 apply to distributions from section 403(b) 
annuities?

                          Questions and Answers

    Q-1: What is the rule regarding distributions that may be rolled 
over to

[[Page 360]]

an eligible retirement plan from annuities, custodial accounts, and 
retirement income accounts described in section 403(b)?
    A-1: Under section 403(b)(8), as amended by UCA, any eligible 
rollover distribution from a section 403(b) annuity is permitted to be 
rolled over to an eligible retirement plan. For purposes of this 
section, a section 403(b) annuity includes an annuity contract, a 
custodial account, and a retirement income account described in section 
403(b). For purposes of section 403(b)(8) and this section, an eligible 
retirement plan means another section 403(b) annuity or an individual 
retirement plan (as defined in Sec. 1.402(c)(2), Q&A-2 but does not 
include a qualified plan (as defined in Sec. 1.402(c)-2), Q&A-2. Except 
to the extent otherwise provided in this section, an eligible rollover 
distribution from a section 403(b) annuity is an eligible rollover 
distribution described in section 402(c) (2) and (4) and Sec. 1.402(c)-
2, Q&A-3 through Q&A-10 and Q&A-14, except that the distribution is from 
section 403(b) annuity rather than a qualified plan. Thus, for example, 
to the extent that corrective distributions described in Sec. 1.402(c)-
2, Q&A-4 are properly made from a section 403(b) annuity, such 
distributions are not eligible rollover distributions. Similarly, in the 
case of annuity distributions from an annuity contract described in 
section 403(b), the entire amount of any such annuity payment made on or 
after January 1 of the year in which an employee attains (or would have 
attained) age 70\1/2\ will be treated as an amount required under 
section 401(a)(9) and, thus, will not be an eligible rollover 
distribution. The rules with respect to rollovers in sections 402 
(c)(1), (c)(3), and (c)(9) and Sec. 1.402(c)-2, Q&A-11 through Q&A-13 
and Q&A-15 also apply to eligible rollover distributions from section 
403(b) annuities.
    Q-2: Is a section 403(b) annuity required to provide the direct 
rollover option described in section 401(a)(31) as a distribution 
option?
    A-2: (a) General rule. Yes. Pursuant to section 403(b)(10), section 
403(b) does not apply to an annuity contract, custodial account, or 
retirement income account unless the annuity contract, custodial 
account, or retirement income account provides that if the distributee 
of any eligible rollover distribution elects to have the distribution 
paid directly to an eligible retirement plan (as defined in Q&A-1 of 
this section) and specifies the eligible retirement plan to which the 
distribution is to be paid, then the distribution will be paid to that 
eligible retirement plan in a direct rollover. For purposes of 
determining whether a section 403(b) annuity has satisfied this direct 
rollover requirement, the provisions of Sec. 1.401(a)(31)-1 apply to the 
section 403(b) annuity as though it were a plan qualified under section 
401(a) unless otherwise provided in this section. For example, as 
described in Sec. 1.401(a)(31)-1, Q&A-14 a direct rollover from a 
section 403(b) annuity to another section 403(b) annuity is a 
distribution and a rollover and not a transfer of funds between section 
403(b) annuities and, thus, is not subject to the applicable law 
governing transfers of funds between section 403(b) annuities. In 
applying the provisions of Sec. 1.401(a)(31)-1, the payor of the 
eligible rollover distribution is treated as the plan administrator.
    (b) Mandatory withholding. As in the case of an eligible rollover 
distribution from a qualified plan, if a distributee of an eligible 
rollover distribution from a section 403(b) annuity does not elect to 
have the eligible rollover distribution paid directly to an eligible 
retirement plan in a direct rollover, the eligible rollover distribution 
is subject to 20-percent income tax withholding imposed under section 
3405(c). See Sec. 31.3405(c)-1 of this chapter for provisions regarding 
the withholding requirements relating to eligible rollover 
distributions.
    Q-3: Is the payor of a section 403(b) annuity required to provide 
the distributee of an eligible rollover distribution with an explanation 
of the direct rollover option?
    A-3: Yes. In order to ensure that the distributee of an eligible 
rollover distribution from a section 403(b) annuity has a meaningful 
right to elect a direct rollover, the distributee must be informed of 
the option. Thus, within a reasonable time period before making an 
eligible rollover distribution, the payor must provide an explanation to 
the distributee of his or her right to

[[Page 361]]

elect a direct rollover and the income tax withholding consequences of 
not electing a direct rollover. For purposes of satisfying the 
reasonable time period, the qualified plan timing rule provided in 
Sec. 1.402(f)-1, Q&A-2 does not apply to section 403(b) annuities. 
However, a payor of a section 403(b) annuity will be deemed to have 
provided the explanation within a reasonable time period if the payor 
complies with the time period in that rule.
    Q-4: When do sections 403(b)(8) and (b)(10), as amended by UCA, and 
this Sec. 1.403(b)-2 apply to distributions from section 403(b) 
annuities?
    A-4: (a) General rule--(1) Statutory effective date. Section 
403(b)(8), as amended by UCA, and section 403(b)(10), as amended by UCA, 
apply to distributions made on or after January 1, 1993. In addition, 
the underlying section 403(b) annuity document must be amended at the 
time provided in, and the section 403(b) annuity must operate in 
accordance with the requirements of Sec. 1.401(a)(31)-1, Q&A-18. Section 
522 of UCA provides a special effective date for governmental section 
403(b) annuities. This special effective date is specified in 
Sec. 1.403(b)-2T (as it appeared in the April 1, 1995 edition of 26 CFR 
part 1).
    (2) Regulatory effective date. This section applies to distributions 
made on or after October 19, 1995. For distributions made on or after 
January 1, 1993 and before October 19, 1995, Sec. 1.403(b)-2T (as it 
appeared in the April 1, 1995 edition of 26 CFR part 1), applies. 
However, for distributions made on or after January 1, 1993 but before 
October 19, 1995, a section 403(b) annuity may satisfy section 
403(b)(10) by substituting any or all provisions of this section for the 
corresponding provisions of Sec. 1.403(b)-2T, if any.

[T.D. 8619, 60 FR 49214, Sept. 22, 1995]



Sec. 1.403(c)-1  Taxability of beneficiary under a nonqualified annuity.

    (a) Taxability of vested interest in premiums. If after August 1, 
1969, an employer (whether or not exempt under section 501(a)) pays 
premiums for an annuity contract for the benefit of an employee, the 
amount of such premiums shall be included as compensation in the gross 
income of the employee for the taxable year during which such premiums 
are paid, but only to the extent that the employees's rights in such 
premiums are substantially vested (as defined in Sec. 1.83-3(b)) at the 
time such premiums are paid. The preceding sentence shall not apply to 
contracts referred to in the transitional rule of paragraph (d) (1), 
(ii), or (iii) of this section, or to premiums subject to Sec. 1.403(a)-
1(a) or excludible under Sec. 1.403(b)-1(b). If any employer has 
purchased annuity contracts and transfered them to a trust (other than 
one described in section 401(a)) that is to provide annuity contracts or 
benefits for his employees, the amounts so paid shall be treated as 
contributions to a trust described in section 402(b). For the rules 
relating to the taxation of the cost of life insurance protection when 
rights in a life insurance contract are substantially nonvested, see 
Sec. 1.83-1(a)(2).
    (b) Taxability of employee when rights under annuity contract change 
from nonvested to vested--(1) In general. If, during a taxable year of 
an employee ending after August 1, 1969, the rights of such employee 
under an annuity contract purchased for him by an employer (whether or 
not exempt under section 501(a) or 521(a)) become substantially vested, 
the value of the annuity contract on the date of such change shall be 
included in the employee's gross income for such year, to the extent 
provided in paragraph (b)(2) of this section. The preceding sentence 
shall not apply, however, to an annuiity contract purchased and held as 
part of a plan which met at the time of such purchase, and continues to 
meet, the requirements of section 404(a)(2) or an annuity contract 
referred to in paragraph (d) (ii) or (iii) of this section. For purposes 
of this section, the value of an annuity contract on the date the 
employee's rights become substantially vested means the cash surrender 
value of such contract on such date.
    (2) Extent to which value of annuity contract is includible in 
employee's gross income. For purposes of paragraph (b)(1) of this 
section, the only amount includible in the gross income of the employee 
is that the portion of the value of the contract on the date of the

[[Page 362]]

change that is attributable to premiums which were paid by the employer 
after August 1, 1969, and which were not excludible from the employer's 
gross income under Sec. 1.403(b)-1(b). However, the includible portion 
does not include--
    (i) The value attributable to a premium paid on the date of such 
change, and
    (ii) The value attributable to premiums described in the 
transitional rule of paragraph (d)(1) (ii) or (iii) of this section.

See Sec. 1.403(b)-1(b)(2) for the treatment of an amount otherwise 
includible in gross income under section 403(c) as an employer 
contribution for purposes of the exclusion under section 403(b).
    (3) Partial vesting. If, during any taxable year of an employee, 
only part of his beneficial interest in an annuity contract becomes 
substantially vested, then only the corresponding part of the value of 
the annuity contract on the date of such change is includible in the 
employee's gross income for such taxable year. In such a case, it is 
first necessary to compute, under the rules in paragraphs (b)(1) and (2) 
of this section but without regard to any exclusion allowable under 
Sec. 1.403(b)-1(b), the amount which would be includible in the 
employee's gross income for the taxable year if his entire beneficial 
interest in the annuity contract had changed to a substantially vested 
interest during such year. The amount that is includible under this (3) 
(without regard to the section 403(b) exclusion) is equal to the amount 
determined under the preceding sentence multiplied by the percent of the 
employee's beneficial interest which became substantially vested during 
the taxable year.
    (c) Amounts paid or made available under an annuity contract. The 
amounts paid or made available to the employee under an annuity contract 
subject to this section shall be included in the gross income of the 
employee for the taxable year in which paid or made available, as 
provided in section 72 (relating to annuities). Such amounts may be 
taken into account in computations under sections 1301 through 1305 
(relating to income averaging). For rules relating to the treatment of 
employer contributions as part of the consideration paid by the 
employee, see section 72(f). See also section 101(b)(2)(D) for rules 
relating to the treatment of the limited exclusion provided thereunder 
as part of the  consideration  paid  by  the employee.
    (d) Taxability of beneficiary under a nonqualified annuity on or 
before August 1, 1969. (1) Except as provided in section 402(d) 
(relating to taxable years beginning before Janaury 1, 1977), if an 
employer purchases an annuity contract and if the amounts paid for the 
contract.
    (i) On or before August 1, 1969, or
    (ii) After such date, if pursuant to a binding written contract (as 
defined in Sec. 1.83-8(b)(2)) entered into before April 22, 1969, or
    (iii) After August 1, 1969, pursuant to a written plan in which the 
employee participated on April 22, 1969 and under which the obligation 
of the employer is essentially the same as under a binding written 
contract, are not subject to paragraph (a) of Sec. 1.403(a)-1 or 
paragraph (a) of Sec. 1.403-1, the amount of such contribution shall, to 
the extent it is not excludible under paragraph (b) of Sec. 1.403(b)-1, 
be included in the income of the employee for the taxable year during 
which such contribution is made if, at at the time the contribution is 
made, the employee's rights under the annuity contract are 
nonforfeitable, except for failure to pay future premiums. If the 
annuity contract was purchased by an employer which is not exempt from 
tax under section 501(a) or section 521(a), and if the employee's rights 
under the annuity contract in such a case were forfeitable at the time 
the employer's contribution was made for the annuity contract, even 
though they become nonforfeitable later the amount of such contribution 
is not required to be included in the income of the employee at the time 
his rights under the contract become nonforfeitable. On the other hand, 
if the annuity contract is purchased by an employer which is exempt from 
tax under section 501(a) or section 521(a), all or part of the value of 
the contract may be includible in the employee's gross income at the 
time his rights

[[Page 363]]

under the contract become nonforfeitable (see section 403(d) prior to 
the repeal thereof by the Tax Reform Act of 1969 and the regulations 
thereunder). As to what constitutes nonforfeitable rights of an 
employee, see Sec. 1.402(b)-1(d)(2). The amounts received by or made 
available to the employee under the annuity contract shall be included 
in the gross income of the employee for the taxable year in which 
received or made available, as provided in section 72 (relating to 
annuities). For taxable years beginning before Janaury 1, 1964, sections 
72(e)(3) (relating to the treatment of certain lump sums), as in effect 
before such date, shall not apply to such amounts. For taxable years 
beginning after December 31, 1963, such amounts may be taken into 
account in computations under sections 1301 through 1305 (relating to 
income averaging). For rules relating to the treatment of employer 
contributions as part of the consideration paid by the employee, see 
section 72(f). See also section 101(b)(2)(D) for rules relating to the 
treatment of the limited exclusion provided thereunder as part of the 
consideration paid by the employee.
    (2) If an employer has purchased annuity contracts and transferred 
them to a trust, or if an employer has made contributions to a trust for 
the purpose of providing annuity contracts for his employees as provided 
in section 402(d) (see paragraph (a) of Sec. 1.402(D)-1, the amount so 
paid or contributed is not required to be included in the income of the 
employee, but any amount received by or made available to the employee 
under the annuity contract shall be includible in the gross income of 
the employee for the taxable year in which received or made available, 
as provided in section 72 (relating to annuities). For taxable years 
beginning before January 1, 1964, section 72(e)(3) (relating to the 
treatment of certain lump sums), as in effect before such date, shall 
not apply to any amount received by or made available to the employee 
under the annuity contract. For taxable years beginning after December 
31, 1963, amounts received by or made available to the employee under 
the annuity contract may be taken into account in computations under 
sections 1301 through 1305 (relating to income averaging). In such case 
the amount paid or contributed by the employer shall not constitute 
consideration paid by the employee for such annuity contract in 
determining the amount of annuity payments required to be included in 
his gross income under section 72 unless the employee has paid income 
tax for any taxable year beginning before January 1, 1949, with respect 
to such payment or contribution by the employer for such year and such 
tax is not credited or refunded to the employee. In the event such tax 
has been paid and not creditid or refunded the amount paid or 
contributed by the employer for such year shall constitute consideration 
paid by the employee for the annuity contract in determining the amount 
of the annuity required to be included in the income of the employee 
under section 72.
    (3) For taxable years beginning before January 1, 1958, the 
provisions contained in section 403(c) prior to the amendment made 
thereto by the Tax Reform Act of 1969 were included in section 403(b) of 
the Internal Revenue Code of 1954. Therefore, the regulations contained 
in this paragraph shall, for such taxable years, be considered as the 
regulations under section 403(b) as in effect for such taxable years. 
For the rules with respect to contributions paid after August 1, 1969, 
see paragraphs (a), (b), and (c) of this section.

(Secs. 83 and 7805 of the Internal Revenue Code of 1954 (83 Stat. 588; 
68A Stat. 917; 26 U.S.C. 83 and 7805))

[T.D. 7554, 43 FR 31924, July 24, 1978]



Sec. 1.403(d)-1  Taxability of employee when rights under contracts purchased by exempt organizations change from forfeitable to nonforfeitable.

    (a) In general. The provisions of section 403(d), repealed by 
section 321(b) of the Tax Reform Act of 1969 (83 Stat. 571), applied for 
taxable years beginning after December 31, 1957, only with respect to 
amounts paid for an annuity contract--
    (1) On or before August 1, 1969, or
    (2) After such date, if pursuant to a binding written contract (as 
defined in Sec. 1.83-8(b)(2)) entered into before April 22, 1969, or

[[Page 364]]

    (3) After August 1, 1969, pursuant to a written plan in which the 
employee participated on April 22, 1969, and under which the obligation 
of the employer is essentially the same as under a binding written 
contract.

If, during a taxable year of an employee beginning after December 31, 
1957, the rights of such employee under an annuity contract purchased 
for him by an employer which is exempt from tax under section 501(a) or 
521(a) change from forfeitable to nonforfeitable rights, then (except in 
the case of contracts to which Sec. 1.403(c)--1(b) applies for taxable 
years ending after August 1, 1969) the value of such annuity contract on 
the date of such change shall be included in the employee's gross income 
for such taxable year, to the extent provided in paragraph (b) of this 
section. However, the preceding sentence does not apply to an annuity 
contract purchased and held as part of a plan that at the time of such 
purchase and at all times thereafter meets the requirements of section 
404(a)(2). For purposes of this section, the value of an annuity 
contract on the date the employee's rights change from forfeitable to 
nonforfeitable rights means the cash surrender value of such contract on 
such date. As to what constitutes nonforfeitable rights of an employee, 
see Sec. 1.402(b)-1(d)(2). For the rules with respect to amounts paid 
after August 1, 1969, under an annuity contract purchased for an 
employee by an employer which is exempt from tax under section 501(a) or 
521(a), see generally section 403(c) and the regulations thereunder.
    (b) Extent to which value of annuity contract is includible in 
employee's gross income. For purposes of paragraph (a) of this section, 
there shall be included in the gross income of an employee for his 
taxable year in which his rights under an annuity contract change from 
forfeitable to nonforfeitable rights only an amount equal to the portion 
of the value of such contract on the date of such change (1) that is 
attributable to contributions:
    (i) Which were made by the employer while it was exempt from tax 
under section 501(a) or 521(a);
    (ii) Which were made after December 31, 1957; and
    (iii) Which were not, at the time they were made, excludable from 
the employee's gross income under paragraph (a) of Sec. 1.403(b)-1;

and (2) that is not excludable from the employee's gross income under 
paragraph (b) of Sec. 1.403(b)-1. Thus, although amounts are contributed 
by an employer after December 31, 1957, toward the purchase for an 
employee of an annuity contract and, at the time of the contribution, 
such employer is an organization described in section 501(c)(3) and 
exempt from tax under section 501(a), the value of such annuity contract 
attributable to such contributions would not be includible in the 
employee's gross income for the taxable year in which his rights under 
the contract change to nonforfeitable rights if such amounts were 
contributed during a taxable year of the employee beginning before 
January 1, 1958, and were, therefore, excludable from the employee's 
gross income under paragraph (a) of Sec. 1.403(b)-1. Similarly, the 
value of such an annuity contract is not includible in the gross income 
of the employee for the year in which the change occurs to the extent 
that it is excludable under paragraph (b) of Sec. 1.403(b)-1. See 
paragraph (b)(2) of Sec. 1.403(b)-1 which provides that the amount 
otherwise includible in gross income under section 403(d) is considered 
to be a contribution by the employer for purposes of the exclusion 
provided in paragraph (b) of Sec. 1.403(b)-1. In addition, the portion 
of the value of an annuity contract attributable to contributions made 
by the employer while it was not exempt from tax under either section 
501(a) or 521(a) is not includible in the gross income of the employee 
at the time his rights under the contract change to nonforfeitable 
rights even though the employer is exempt from tax under section 501(a) 
or 521(a) at the time of such change. On the other hand, the value of 
the annuity contract purchased by an organization exempt from tax under 
section 501(a) or 521(a) may be includible in the gross income of an 
employee for the year during which his rights under the contract change 
to nonforfeitable rights even though such organization is not exempt on 
the date of such change.

[[Page 365]]

    (c) Partial vesting--(1) General rule. If, during any taxable year 
of an employee, only part of his beneficial interest in an annuity 
contract changes from a forfeitable to a nonforfeitable interest, then 
only the corresponding part of the value of the annuity contract on the 
date of such change is includible in the employee's gross income for 
such taxable year. In such a case, it is first necessary to compute, 
under the rules in paragraphs (a) and (b) of this section but without 
regard to any exclusion allowable under paragraph (b) of Sec. 1.403(b)-
1, the amount which would be includible in the employee's gross income 
for the taxable year if his entire beneficial interest in the annuity 
contract had changed to a nonforfeitable interest during such year. The 
amount that is includible (without regard to any exclusion allowed by 
paragraph (b) of Sec. 1.403(b)-1) in the gross income of the employee 
for the taxable year in which the change occurs is an amount equal to 
the amount determined under the preceding sentence multiplied by the 
percent of the employee's beneficial interest which changed to a 
nonforfeitable interest during the taxable year. If at the time the 
employee's interest changes to a nonforfeitable interest, the employer 
is an organization described in section 501(a)(3) and exempt from tax 
under section 501(a), then the amount that is includible in the 
employee's gross income under this subparagraph is considered as an 
employer contribution to which the exclusion provided in paragraph (b) 
of Sec. 1.403(b)-1 applies (see paragraph (b)(2) of Sec. 1.403(b)-1).
    (2) Example. The provisions in paragraph (c)(1) of this section may 
be illustrated by the following example:

    Example. X organization purchased an annuity contract for A, one of 
its employees who reports his income on a calendar year basis. X 
contributed \1/3\ of of amount necessary to purchase the contract before 
January 1, 1958, and the remaining \2/3\ after December 31, 1957. At the 
time of the contributions, X was an organization exempt from tax under 
section 501(a) and A's rights under the contract were forfeitable. The 
annuity contract was not purchased as part of a qualified plan and A 
made no contributions toward the purchase of the contract. On December 
31, 1965, 50 percent of A's interest in the contract changed from a 
forfeitable to a nonforfeitable interest, and on December 31, 1968, the 
remaining 50 percent of A's interest in the contract changed to a 
nonforfeitable interest. The cash surrender value of the contract was 
$9,900 on December 31, 1965, and $12,000 on December 31, 1968. The 
amount includible in A's gross income for 1965 and 1968 is computed as 
follows--

                                  1965

    (i) Amount which would have been includible if A's entire interest 
had changed to a nonforfeitable interest (cash surrender value of 
contract on December 31, 1965, attributable to contributions made after 
December 31, 1957), \2/3\  x  $9,900, $6,600.
    (ii) Percent of A's interest that changed to a nonforfeitable 
interest on December 31, 1965, 50 percent.
    (iii) Amount includible in A's gross income for 1965 ((ii)  x  (i)), 
$3,300.

                                  1968

    (iv) Amount which would have been includible if A's entire interest 
had changed to a nonforfeitable interest (cash surrender value of 
contract on December 31, 1968, attributable to contributions made after 
December 31, 1957), \2/3\ $12,000, $8,000.
    (v) Percent of A's interest that changed to a nonforfeitable 
interest on December 31, 1968, 50 percent.
    (vi) Amount includible in A's gross income for 1968 ((v)  x  (iv)), 
$4,500.
    If, on December 31, 1965, X is an organization described in section 
501(c)(3) and exempt from tax under section 501(a), then only so much of 
the $3,300 as is not excludable under paragraph (b) of Sec. 1.403(b)-1 
is includible in A's gross income for 1965. Similarly, if, on December 
31, 1968, X is an organization described in section 501(c)(3) and exempt 
from tax under section 501(a), then only so much of the $4,000 as is not 
excludable under paragraph (b) of Sec. 1.403(b)-1 is includible in A's 
gross income for 1968.

(Secs. 83 and 7805 of the Internal Revenue Code of 1954 (83 Stat. 588; 
68A Stat. 917; 26 U.S.C. 83 and 7805))

[T.D. 6783, 29 FR 18365, Dec. 24, 1964, as amended by T.D. 7554, 43 FR 
31925, July 24, 1978]



Sec. 1.404(a)-1   Contributions of an employer to an employees' trust or annuity plan and compensation under a deferred payment plan; general rule.

    (a)(1) Section 404(a) prescribes limitations upon deductions for 
amounts contributed by an employer under a pension, annuity, stock 
bonus, or profit-sharing plan, or under any plan of deferred 
compensation. It is immaterial

[[Page 366]]

whether the plan covers present employees only, or present and former 
employees, or only former employees. Section 404(a) also governs the 
deductibility of unfunded pensions and death benefits paid directly to 
former employees or their beneficiaries (see Sec. 1.404(a)-12). For 
taxable years beginning after 1962, certain self-employed individuals 
may be covered by pension, annuity, or profit-sharing plans. For the 
rules relating to the deduction of contributions on behalf of such 
individuals, see paragraph (a)(2) of Sec. 1.404(a)-8 and Sec. 1.404(e)-
1.
    (2) Section 404(a) does not apply to a plan which does not defer the 
receipt of compensation. Furthermore, section 404(a) does not apply to 
deductions for contributions under a plan which is solely a dismissal 
wage or unemployment benefit plan, or a sickness, accident, 
hospitalization, medical expense, recreation, welfare, or similar 
benefit plan, or a combination thereof. For example, if under a plan an 
employer contributes 5 percent of each employee's compensation per month 
to a fund out of which employees who are laid off will be paid benefits 
for temporary periods, but employees who are not laid off have no rights 
to the funds, such a plan is an unemployment benefit plan, and the 
deductibility of the contributions to it is determined under section 
162. As to the deductibility of such contributions, see Sec. 1.162-9.
    (3) If, however, the contributions to a pension, profit-sharing, 
stock bonus, or other plan of deferred compensation can be used to 
provide any of the benefits referred to in subparagraph (2) of this 
paragraph, then, except as provided in section 404(c), section 404(a) 
applies to the entire contribution to the plan. Thus, if in the example 
described in subparagraph (2) of this paragraph, the employer's 
contribution on behalf of each employee is set up as a separate account, 
and if any amount which remains in an employee's account at the time of 
retirement is paid to him at such time, the deductibility of the 
contributions to the plan is determined under section 404(a). For the 
regulations for determining whether the benefits referred to in 
subparagraph (2) of this paragraph can be included in a qualified 
pension or profit-sharing plan, see Sec. 1.401-1(b).
    (4) As to inclusion of full-time life insurance salesmen within the 
class of persons considered to be employees, see section 7701(a)(20).
    (b) In order to be deductible under section 404(a), contributions 
must be expenses which would be deductible under section 162 (relating 
to trade or business expenses) or 212 (relating to expenses for 
production of income) if it were not for the provision in section 404(a) 
that they are deductible, if at all, only under section 404(a). 
Contributions may therefore be deducted under section 404(a) only to the 
extent that they are ordinary and necessary expenses during the taxable 
year in carrying on the trade or business or for the production of 
income and are compensation for personal services actually rendered. In 
no case is a deduction allowable under section 404(a) for the amount of 
any contribution for the benefit of an employee in excess of the amount 
which, together with other deductions allowed for compensation for such 
employee's services, constitutes a reasonable allowance for compensation 
for the services actually rendered. What constitutes a reasonable 
allowance depends upon the facts in the particular case. Among the 
elements to be considered in determining this are the personal services 
actually rendered in prior years as well as the current year and all 
compensation and contributions paid to or for such employee in prior 
years as well as in the current year. Thus, a contribution which is in 
the nature of additional compensation for services performed in prior 
years may be deductible, even if the total of such contributions and 
other compensation for the current year would be in excess of reasonable 
compensation for services performed in the current year, provided that 
such total plus all compensation and contributions paid to or for such 
employee in prior years represents a reasonable allowance for all 
services rendered by the employee by the end of the current year. A 
contribution under a plan which is primarily for the benefit of 
shareholders of the employer is not deductible. Such a contribution may 
constitute a dividend within the meaning of section 316.

[[Page 367]]

See also Secs. 1.162-6 and 1.162-8. In addition to the limitations 
referred to above, deductions under section 404(a) are also subject to 
further conditions and limitations particularly provided therein.
    (c) Deductions under section 404(a) are generally allowable only for 
the year in which the contribution or compensation is paid, regardless 
of the fact that the taxpayer may make his returns on the accrual method 
of accounting. Exceptions are made in the case of overpayments as 
provided in paragraphs (1), (3), and (7) of section 404(a), and, as 
provided by section 404(a)(6), in the case of payments made by a 
taxpayer on the accrual method of accounting not later than the time 
prescribed by law for filing the return for the taxable year of accrual 
(including extensions thereof). This latter provision is intended to 
permit a taxpayer on the accrual method to deduct such accrued 
contribution or compensation in the year of accrual, provided payment is 
actually made not later than the time prescribed by law for filing the 
return for the taxable year of accrual (including extensions thereof), 
but this provision is not applicable unless, during the taxable year on 
account of which the contribution is made, the taxpayer incurs a 
liability to make the contribution, the amount of which is accruable 
under section 461 for such taxable year. See section 461 and the 
regulations thereunder. There is another exception in the case of 
certain taxpayers who are required to make additional contributions as a 
result of the Act of June 15, 1955 (Public Law 74, 84th Cong., 69 Stat. 
134), and the regulations thereunder.

[T.D. 6500, 25 FR 11682, Nov. 26, 1960, as amended by T.D. 6676, 28 FR 
10144, Sept. 17, 1963]



Sec. 1.404(a)-1T  Questions and answers relating to deductibility of deferred compensation and deferred benefits for employees. (Temporary)

    Q-1: How does the amendment of section 404(b) by the Tax Reform Act 
of 1984 affect the deduction of contributions or compensation under 
section 404(a)?
    A-1: As amended by the Tax Reform Act of 1984, section 404(b) 
clarifies that section 404(a) shall govern the deduction of 
contributions paid and compensation paid or incurred by the employer 
under a plan, or method or arrangement, deferring the receipt of 
compensation or providing for deferred benefits to employees, their 
spouses, or their dependents. See section 404(b) and Sec. 1.404(b)-1T. 
Section 404 (a) and (d) requires that such a contribution or 
compensation be paid or incurred for purposes of section 162 or 212 and 
satisfy the requirements for deductibility under either of those 
sections. However, notwithstanding the above, section 404 does not apply 
to contributions paid or accrued with respect to a ``welfare benefit 
fund'' (as defined in section 419(e)) after July 18, 1984, in taxable 
years of employers (and payors) ending after that date. Also, section 
463 shall govern the deduction of vacation pay by a taxpayer that has 
elected the application of such section. For rules relating to the 
deduction of contributions paid or accured with respect to a welfare 
benefit fund, see section 419, Sec. 1.419-1T and Sec. 1.419A-2T. For 
rules relating to the deduction of vacation pay for which an election is 
made under section 463, see Sec. 301.9100-16T of this chapter and 
Sec. 1.463-1T.

[T.D. 8073, 51 FR 4320, Feb. 4, 1986, as amended by T.D. 8435, 57 FR 
43896, Sept. 23, 1992]



Sec. 1.404(a)-2   Information to be furnished by employer claiming deductions; taxable years ending before December 31, 1971.

    (a) For the first taxable year for which a deduction from gross 
income is claimed under section 404(a) (1), (2), (3), or (7), the 
employer must file the following information (unless such information 
has been previously filed in accordance with the regulations under 
section 23(p) of the Internal Revenue Code of 1939) for each plan 
involved to establish that it meets the requirements of section 401(a) 
or 404(a)(2), and that deductions claimed do not exceed the amount 
allowable under paragraphs (1), (2), (3), and (7) of section 404(a), as 
the case may be:
    (1) Verified copies of all the instruments constituting or 
evidencing the plan, including trust indentures, group annuity 
contracts, specimen copy of each type of individual contract, and

[[Page 368]]

specimen copy of formal announcement and comprehensive detailed 
description to employees, with all amendments to any such instruments.
    (2) A statement describing the plan which identifies it and which 
sets forth the name or names of the employers, the effective date of the 
plan and of any amendments thereto, the method of distribution or of 
disbursing benefits (whether by trustee, insurance company, or 
otherwise), the dates when the instruments or amendments were executed, 
the date of formal announcement and the dates when comprehensive 
detailed description of the plan and of each amendment thereto were made 
available to employees generally, the dates when the plan and when the 
trust or the contract evidencing the plan and of any amendments thereto 
were put into effect so that contributions thereunder were irrevocable 
and a summary of the provisions and rules relating to--
    (i) Employee eligibility requirements for participation in the plan,
    (ii) Employee contributions,
    (iii) Employer contributions,
    (iv) The basis or formula for determining the amount of each type of 
benefit and the requirements for obtaining such benefits and the vesting 
conditions,
    (v) The medium of funding (e. g., self-insured, unit purchase group 
annuity contract, individual level annual premium retirement endowment 
insurance contracts, etc.) and, if not wholly insured, the medium of 
contributions and the kind of investments, and
    (vi) The discontinuance or modification of the plan and 
distributions or benefit payments upon liquidation or termination.
    (3) A tabulation in columnar form showing the information specified 
below with respect to each of the 25 highest paid employees covered by 
the plan in the taxable year, listed in order of their nondeferred 
compensation (where there are several plans of deferred compensation, 
the information for each of the plans may be shown on a single 
tabulation without repetition of the information common to the several 
plans):
    (i) Name.
    (ii) Whether an officer.
    (iii) Percentage of each class of stock owned directly or indirectly 
by the employee or members of his family.
    (iv) Whether the principal duties consist in supervising the work of 
other employees.
    (v) Year of birth.
    (vi) Length of service for employer to the close of the year.
    (vii) Total nondeferred compensation paid or accrued during the 
taxable year with a breakdown of such compensation into the following 
components:
    (A) Basic compensation and overtime pay,
    (B) Other direct payments, such as bonuses and commissions,
    (C) Compensation paid other than in cash, such as goods, services, 
insurance not directly related to the benefits or provided from funds 
under the plan, etc.
    (viii) Amount allocated during the year for the benefit of the 
employee or his beneficiary (including any insurance provided thereby or 
directly related thereto), less the employee's contributions during the 
year, under each other plan of deferred compensation.
    (ix) Amount allocated during the year for the benefit of the 
employee or his beneficiary (including any insurance provided thereby or 
directly related thereto), less the employee's contributions during the 
year, under the plan. If a profit-sharing or stock bonus plan, also a 
breakdown of such amounts into the following components:
    (A) Amounts originally allocated in the year, and
    (B) Amounts reallocated in the year.
    (x) Amounts of employee contributions during the year under the 
plan,
    (xi) If a pension or annuity plan,
    (A) The retirement age and date and the form of the retirement 
benefit,
    (B) The annual rate or amount of the retirement benefit, and
    (C) The aggregate of all of the employee's contributions under the 
plan,

all based, in the case of an employee who is not on retirement benefit 
under the plan, upon the assumption of his continued employment at his 
current rate of compensation until his normal retirement age (or the end 
of the current year if later) and retirement on

[[Page 369]]

such date with the normal form of retirement benefit under the plan.
    (4) The following totals:
    (i) Total nondeferred compensation paid or accrued during the 
taxable year for all employees covered under the plan and also for all 
employees of the employer.
    (ii) Total amount allocated during the year for the benefit of 
employees, former or retired employees, or their beneficiaries 
(including any insurance provided thereby or directly related thereto), 
less employee contributions during the year under the plan and, if a 
profit-sharing or stock bonus plan, also a breakdown of such total into 
the following components:
    (A) Amount originally allocated in the year, and
    (B) Amount reallocated in the year.
    (5) A schedule showing the total number of employees as of the close 
of the year for each of the following groups, based on reasonable 
estimates:
    (i) All employees ineligible for coverage under the plan because of 
requirements as to employment classification, specifying the reasons 
applicable to the group (as, for example, temporary, seasonal, part 
time, hourly pay basis, etc.).
    (ii) All employees ineligible for coverage under the plan because of 
requirements as to length of service and not included in subdivision (i) 
of this subparagraph.
    (iii) All employees ineligible for coverage under the plan because 
of requirements as to minimum age and not included in subdivision (i) or 
(ii) of this subparagraph.
    (iv) All employees ineligible for coverage under the plan solely 
because of requirements as to minimum rate of compensation.
    (v) All employees ineligible for coverage under the plan other than 
those employees included in subdivision (i), (ii), (iii), or (iv) of 
this subparagraph, specifying the reason applicable to the group.
    (vi) All employees ineligible for coverage under the plan for any 
reasons, which should be the sum of subdivisions (i) to (v), inclusive, 
of this subparagraph.
    (vii) All employees eligible for coverage but not covered under the 
plan.
    (viii) All employees covered under the plan.
    (ix) All employees of the employer, which should be the sum of 
subdivisions (vi), (vii), and (viii) of this subparagraph.

If it is claimed that the requirements of section 401(a)(3)(A) are 
satisfied, also the data and computations necessary to show that such 
requirements are satisfied.
    (6) In the case of a trust, a detailed balance sheet and a detailed 
statement of receipts and disbursements during the year; in the case of 
a nontrusteed annuity plan, a detailed statement of the names of the 
insurers, the contributions paid by the employer and by the employees, 
and a statement as to the amounts and kinds of premium refunds or 
similar credits made available and the disposition of such credits in 
the year.
    (7) If a pension or annuity plan, a detailed description of all the 
methods, factors, and assumptions used in determining costs and in 
adjusting the costs for actual experience under the plan (including any 
loadings, contingency reserves, or special factors and the basis of any 
insured costs or liabilities involved therein) explaining their source 
and application in sufficient detail to permit ready analysis and 
verification thereof, and, in the case of a trust, a detailed 
description of the basis used in valuing the investments held.
    (8) A statement of the applicable limitations under section 404(a) 
(1), (2), (3), or (7) and an explanation of the method of determining 
such limitations, a summary of the data, and a statement of computations 
necessary to determine the allowable deductions for the taxable year. 
Also, in the case of a pension or annuity plan, a summary of the costs 
or liabilities and adjustments for the year under the plan based on the 
application of the methods, factors, and assumptions used under the 
plan, in sufficient detail to permit ready verification of the 
reasonableness thereof.
    (9) A statement of the contributions paid under the plan for the 
taxable year showing the date and amount of each payment. Also, a 
summary of the deductions claimed for the taxable year for the plan with 
a breakdown of

[[Page 370]]

the deductions claimed into the following components:
    (i) For contributions paid in the taxable year before giving effect 
to the provisions of paragraph (7) of section 404(a).
    (ii) For contributions paid in prior taxable years beginning after 
December 31, 1941, in accordance with the carryover provisions of 
paragraphs (1) and (3) of section 404(a), before giving effect to the 
provisions of paragraph (7) thereof, and in accordance with the 
carryover provisions of section 404(d).
    (iii) Any reductions or increases in the deductions in accordance 
with the provisions of paragraph (7) of section 404(a). However, if the 
information in this subdivision is filed prior to the filing of the 
information required by subparagraph (8) of this paragraph, then, in 
determining the limit of deduction under paragraph (7) of section 
404(a), the applicable percentage of the compensation otherwise paid or 
accrued during the year may be used.
    (b) For taxable years subsequent to the year for which all of the 
applicable information under paragraph (a) of this section (or 
corresponding provisions of prior regulations) has been filed, 
information is to be filed only to the following extent:
    (1) If there is any change in the plan, instruments, methods, 
factors, or assumptions upon which the data and information specified in 
paragraph (a) (1), (2), or (7) of this section are based, a detailed 
statement explaining the change and its effect is to be filed only for 
the taxable year in which the change is put into effect. However, if 
there is no such change, unless otherwise requested by the district 
director, merely a statement that there is no such change is to be 
filed.
    (2) The information specified in paragraph (a)(3) of this section 
which has been filed for a taxable year, unless otherwise requested by 
the district director and so long as the plan and the method and basis 
of allocations are not changed, is to be filed for subsequent years only 
to the extent of showing in the tabulation such information with respect 
to employees who, at any time in the taxable year, own, directly or 
indirectly, more than 5 percent of the voting stock, considering stock 
so owned by an individual's spouse or minor lineal descendant as owned 
by the individual for this purpose.
    (3) The information specified in paragraph (a) (4), (5), (6), (8), 
and (9) of this section.

In the case of corporate employers, the information required to be 
submitted by this paragraph shall, except as otherwise provided by the 
Commissioner, be filed on Form 2950 for taxable years ending on or after 
December 31, 1961. In the case of other employers, the information 
required to be submitted by this paragraph shall, except as otherwise 
provided by the Commissioner, be filed on Form 2950 for taxable years 
ending on or after December 31, 1962.
    (c) If a deduction is claimed under section 404(a)(5) for the 
taxable year, the taxpayer shall furnish such information as is 
necessary to show that the deduction is not allowable under the other 
paragraphs of section 404(a), that the amount paid is an ordinary and 
necessary expense or an expense for the production of income, and that 
the employees' rights to, or derived from, such employer's contribution 
or such compensation were nonforfeitable at the time the contribution or 
compensation was paid. In the case of corporate employers, the 
information required to be submitted by this paragraph shall, except as 
otherwise provided by the Commissioner, be filed on Form 2950 for 
taxable years ending on or after December 31, 1961. In the case of other 
employers, the information required to be submitted by this paragraph 
shall, except as otherwise provided by the Commissioner, be filed on 
Form 2950 for taxable years ending on or after December 31, 1962.
    (d) For the purpose of the information required by this section, 
contributions paid in a taxable year shall include those deemed to be so 
paid in accordance with the provisions of section 404(a)(6) and shall 
exclude those deemed to be paid in the prior taxable year in accordance 
with such provisions. As used in this section, ``taxable year'' refers 
to the taxable year of the employer and, unless otherwise requested by 
the district director, a ``year'' which is not specified as a ``taxable 
year'' may be taken as the taxable year of the employer or as the plan,

[[Page 371]]

trust, valuation, or group contract year with respect to which 
deductions are being claimed provided the same rule is followed 
consistently so that there is no gap or overlap in the information 
furnished for each item. In any case the date or period to which each 
item of information furnished relates should be clearly shown. All the 
information required by this section should be filed with the tax return 
for the taxable year in which the deduction is claimed, except that, 
unless sooner requested by the district director, such information, 
other than that specified in paragraph (a)(4)(i) and (9) of this 
section, may be filed within 12 months after the close of the taxable 
year provided there is filed with the tax return a statement that the 
information cannot reasonably be filed therewith, setting forth the 
reasons therefor.
    (e) In any case all the information and data required by this 
section must be filed in the office of the district director in which 
the employer files his tax returns and must be filed independently of 
any information and data otherwise submitted in connection with a 
determination of the qualification of the trust or plan under section 
401(a). The district director may, in addition, require any further 
information that he considers necessary to determine allowable 
deductions under section 404 or qualification under section 401. For 
taxable years ending on or before December 31, 1961, the district 
director may waive the filing of such information required by this 
section which he finds unnecessary in a particular case. For taxable 
years ending after December 31, 1961, the Commissioner may waive the 
filing of such information.
    (f) Records substantiating all data and information required by this 
section to be filed must be kept at all times available for inspection 
by internal revenue officers at the main office or place of business of 
the employer.
    (g) In the case of a plan which covers employees, some or all of 
whom are self-employed individuals and with respect to which a deduction 
is claimed under section 404(a) (1), (2), (3), or (7), paragraphs (a) 
and (b) of this section, and the provision of paragraph (d) of this 
section relating to the time for filing the information required by this 
section, shall not apply, but in lieu of the information required to be 
submitted by paragraphs (a) and (b) of this section, the employer shall, 
with the return for the taxable year in which the deduction is claimed, 
submit the information required by the form provided by the Internal 
Revenue Service for such purpose.
    (h) When a custodial account forms a part of a plan for which a 
deduction is claimed under section 404(a) (1), (2), (3), or (7), the 
information which under this section is to be submitted with respect to 
a qualified trust must be submitted with respect to such custodial 
account. Thus, for purposes of this section--
    (1) The term ``trust'' includes custodial account,
    (2) The term ``trustee'' includes custodian, and
    (3) The term ``trust indenture'' includes custodial agreement.
    (i) Except as provided under Sec. 1.503(d)-1(a) and Sec. 601.201 of 
this chapter (Statement of Procedural Rules) in the case of a request 
for the determination of qualification of a trust under section 401 and 
exemption under section 501, paragraphs (a) through (h) of this section 
shall not apply for taxable years ending on or after December 31, 1971. 
For information to be furnished for taxable years ending on or after 
December 31, 1971, see Sec. 1.404(a)-2A.

[T.D. 6500, 25 FR 11683, Nov. 26, 1960, as amended by T.D. 6599, 27 FR 
4475, May 10, 1962; T.D. 6676, 28 FR 10144, Sept. 17, 1963; T.D. 7165, 
37 FR 5025, Mar. 9, 1972; T.D. 7168, 37 FR 5491, Mar. 16, 1972]



Sec. 1.404(a)-2A   Information to be furnished by employer; taxable years ending on or after December 31, 1971, and before December 31, 1975.

    (a) In general. For any taxable year ending on or after December 31, 
1971, any employer who maintains a pension, annuity, stock bonus, 
profit-sharing, or other funded plan of deferred compensation shall file 
the forms prescribed by this section. An employer (including a self-
employed individual) maintaining such a plan shall furnish such 
information as is required by the forms and the instructions relating 
thereto. The forms shall be filed in the manner and at the time 
prescribed

[[Page 372]]

under paragraph (c) of this section. See Sec. 1.404(a)-2 with respect to 
information to be furnished for taxable years ending before December 31, 
1971. For purposes of this section, in the case of a plan of several 
employers described in Sec. 1.401-1(d), each employer shall be deemed to 
be maintaining a separate plan corresponding to the plan of which the 
trust is a part. For information required to be furnished with respect 
to a funded deferred compensation plan maintained by an employer who is 
exempt from tax under section 501(a), see Sec. 1.6033-2(a)(2)(ii)(i).
    (b) Forms. The forms prescribed by this section are:
    (1) Form 4848, generally relating to information concerning the 
qualification of the plan, and deductions for contributions made on 
behalf of employees or self-employed individuals,
    (2) Form 4849, generally relating to the financial position of the 
trust, fund, or custodial or fiduciary account which is a part of the 
plan, and
    (3) For any taxable year ending on or after December 31, 1971, and 
before December 31, 1972, Forms 2950 and 2950SE, relating to the 
identification of plans to which an employer has made a contribution and 
information with respect to a deduction for a contribution made on 
behalf of a self-employed individual, respectively.
    (c) Filing requirements. (1) Form 4848 shall be filed by the 
employer for each taxable year during which he maintains a pension, 
annuity, stock bonus, profit-sharing, or other funded plan of deferred 
compensation. Such form shall be filed on or before the 15th day of the 
5th month following the close of the employer's taxable year. For rules 
relating to the extension of time for filing, see section 6081 and the 
regulations thereunder and the instructions for Form 4848.
    (2) Form 4849 shall be filed by the employer as an attachment to 
Form 4848 for each taxable year during which he maintains a pension, 
annuity, stock bonus, profit-sharing, or other funded plan of deferred 
compensation unless the employer (i) has been notified in writing that 
Form 4849 will be filed by the fiduciary for such plan as an attachment 
to Form 990-P or (ii) is not required to file Form 4849 under the 
instructions relating thereto.
    (3) For any taxable year ending on or after December 31, 1971, and 
before December 31, 1972, Form 2950 shall be filed with the employer's 
tax return for any such taxable year during which a pension, annuity, 
stock bonus, profit-sharing, or other funded plan of deferred 
compensation is maintained.
    (4) For any taxable year ending on or after December 31, 1971, and 
before December 31, 1972, Form 2950SE shall be filed by each self-
employed individual with his income tax return for any such taxable year 
in which he claims a deduction for contributions made on his behalf.
    (d) Additional information. In addition to the information otherwise 
required to be furnished by this section, the district director may 
require any further information that he considers necessary to determine 
allowable deductions under section 404 or qualification under section 
401.
    (e) Records. Records substantiating all data and information 
required by this section to be filed must be kept at all times available 
for inspection by internal revenue officers at the main office or place 
of business of the employer.

[T.D. 7165, 37 FR 5025, Mar. 9, 1972, as amended by T.D. 7223, 37 FR 
24748, Nov. 21, 1972; T.D. 7551, 43 FR 29292, July 7, 1978]



Sec. 1.404(a)-3   Contributions of an employer to or under an employees' pension trust or annuity plan that meets the requirements of section 401(a); 
          application of section 404(a)(1).

    (a) If contributions are paid by an employer to or under a pension 
trust or annuity plan for employees and the general conditions and 
limitations applicable to deductions for such contributions are 
satisfied (see Sec. 1.404(a)-1), the contributions are deductible under 
section 404(a) (1) or (2) if the further conditions provided therein are 
also satisfied. As used in this section, a ``pension trust'' means a 
trust forming part of a pension plan and an ``annuity plan'' means a 
pension plan under which retirement benefits are provided under annuity 
or insurance contracts

[[Page 373]]

without a trust. This section is also applicable to contributions to a 
foreign situs pension trust which could qualify for exemption under 
section 501(a) except that it is not created or organized and maintained 
in the United States. For the meaning of ``pension plan'' as used in 
this section, see paragraph (b)(1)(i) of Sec. 1.401-1. Where disability 
pensions, insurance, or survivorship benefits incidental and directly 
related to the retirement benefits under a pension or annuity plan are 
provided for the employees or their beneficiaries by contributions under 
the plan, deductions on account of such incidental benefits are also 
covered under section 404(a) (1) or (2). See paragraph (b)(2) of 
Sec. 1.72-16 as to taxability to employees of cost of incidental life 
insurance protection. Similarly, where medical benefits described in 
section 401(h) as defined in paragraph (a) of Sec. 1.401-14 are provided 
for retired employees, their spouses, or their dependents under the 
plan, deductions on account of such subordinate benefits are also 
covered under section 404(a) (1) or (2). In order to be deductible under 
section 404(a)(1), contributions to a pension trust must be paid in a 
taxable year of the employer which ends with or within a year of the 
trust for which it is exempt under section 501(a). Contributions paid in 
such a taxable year of the employer may be carried over and deducted in 
a succeeding taxable year of the employer in accordance with section 
404(a)(1)(D), whether or not such succeeding taxable year ends with or 
within a taxable year of the trust for which it is exempt under section 
501(a). See Sec. 1.404(a)-7 for rules relating to the limitation on the 
amount deductible in such a succeeding taxable year of the employer. See 
Sec. 1.404(a)-8 as to conditions for deductions under section 404(a)(2) 
in the case of an annuity plan. In either case, the deductions are also 
subject to further limitations provided in section 404(a)(1). The 
limitations provided in section 404(a)(1) are, with an exception 
provided for certain years under subparagraph (A) thereof (see 
Sec. 1.404(a)-4), based on the actuarial costs of the plan.
    (b) In determining costs for the purpose of limitations under 
section 404(a)(1), the effects of expected mortality and interest must 
be discounted and the effects of expected withdrawals, changes in 
compensation, retirements at various ages, and other pertinent factors 
may be discounted or otherwise reasonably recognized. A properly 
weighted retirement age based on adequate analyses of representative 
experience may be used as an assumed retirement age. Different basic 
assumptions or rates may be used for different classes of risks or 
different groups where justified by conditions or required by contract. 
In no event shall costs for the purpose of section 404(a)(1) exceed 
costs based on assumptions and methods which are reasonable in view of 
the provisions and coverage of the plan, the funding medium, reasonable 
expectations as to the effects of mortality and interest, reasonable and 
adequate regard for other factors such as withdrawal and deferred 
retirement (whether or not discounted) which can be expected to reduce 
costs materially, reasonable expenses of operation, and all other 
relevant conditions and circumstances. In any case, in determining the 
costs and limitations, an adjustment shall be made on account of any 
experience more favorable than that assumed in the basis of limitations 
for prior years. Unless such adjustments are consistently made every 
year by reducing the limitations otherwise determined by any decrease in 
liability or cost arising from experience in the next preceding taxable 
year which was more favorable than the assumptions on which the costs 
and limitations were based, the adjustment shall be made by some other 
method approved by the Commissioner.
    (c) The amount of a contribution to a pension or annuity plan that 
is deductible under section 404(a) (1) or (2) depends upon the methods, 
factors, and assumptions which are used to compute the costs of the plan 
and the limitation of section 404(a)(1) which is applied. Since the 
amount that is deductible for one taxable year may affect the amount 
that is deductible for other taxable years, the methods, factors, and 
assumptions used in determining costs and the method of determining the 
limitation which have been used for determining the deduction for a 
taxable year for which the return has

[[Page 374]]

been filed shall not be changed for such taxable year, except when the 
Commissioner determines that the methods, factors, assumptions, or 
limitations were not proper, or except when a change is necessitated by 
reason of the use of different methods, factors, assumptions, or 
limitations for another taxable year. However, different methods, 
factors, and assumptions, or a different method of determining the 
limitation, if they are proper, may be used in determining the deduction 
for a subsequent taxable year.
    (d) Any expenses incurred by the employer in connection with the 
plan, such as trustee's and actuary's fees, which are not provided for 
by contributions under the plan are deductible by the employer under 
section 162 (relating to trade or business expenses), or 212 (relating 
to expenses for production of income) to the extent that they are 
ordinary and necessary.
    (e) In case deductions are allowable under section 404(a)(3), as 
well as under section 404(a) (1) or (2), the limitations under section 
404(a) (1) and (3) are determined and applied without giving effect to 
the provisions of section 404(a)(7) but the amounts allowable as 
deductions are subject to the further limitations provided in section 
404(a)(7). See Sec. 1.404(a)-13.
    (f)(1) Amounts contributed by an employer under the plan for the 
funding of medical benefits described in section 401(h) as defined in 
paragraph (a) of Sec. 1.401-14 must satisfy the general requirements 
which are applicable to deductions allowable under section 404 and which 
are set forth in Sec. 1.404(a)-1 including, for example, the 
requirements described in paragraph (b) of such section. Accordingly, 
such amounts must constitute an ordinary and necessary expense relating 
to either the trade or business or the production of income and must 
not, when added to all other compensation paid by the employer to the 
employee on whose behalf such a contribution is made, constitute more 
than reasonable compensation. However, in determining the amount which 
is deductible with respect to contributions to provide retirement 
benefits under the plan, amounts contributed for the funding of medical 
benefits described in section 401(h) shall not be taken into 
consideration.
    (2) The amounts deductible with respect to employer contributions to 
fund medical benefits described in section 401(h) shall not exceed the 
total cost of providing such benefits. The total cost of providing such 
benefits shall be determined in accordance with any generally accepted 
actuarial method which is reasonable in view of the provisions and 
coverage of the plan, the funding medium, and other applicable 
considerations. The amount deductible for any taxable year with respect 
to such cost shall not exceed the greater of--
    (i) An amount determined by distributing the remaining unfunded 
costs of past and current service credits as a level amount, or as a 
level percentage of compensation, over the remaining future service of 
each employee, or
    (ii) 10 percent of the cost which would be required to completely 
fund or purchase such medical benefits.

In determining the amount deductible, an employer must apply either 
subdivision (i) of this subparagraph for all employees or subdivision 
(ii) of this subparagraph for all employees. If contributions paid by an 
employer in a taxable year to fund such medical benefits under a pension 
or annuity plan exceed the limitations of this subparagraph but 
otherwise satisfy the conditions for deduction under section 404, then 
the excess contributions are carried over and are deductible in 
succeeding taxable years of the employer which end with or within 
taxable years of the trust for which it is exempt under section 501(a) 
in order of time to the extent of the difference between the amount paid 
and deductible in each succeeding year and the limitation applicable to 
such year under this subparagraph. For purposes of subdivision (i) of 
this subparagraph, if the remaining future service of an employee is one 
year or less, it shall be treated as one year.

[T.D. 6500, 25 FR 11685, Nov. 26, 1960, as amended by T.D. 6722, 29 FR 
5073, Apr. 14, 1964; T.D. 7165, 37 FR 5025, Mar. 9, 1972]

[[Page 375]]



Sec. 1.404(a)-4   Pension and annuity plans; limitations under section 404(a)(1)(A).

    (a) Subject to the applicable general conditions and limitations 
(see Sec. 1.404(a)-3), the initial limitation under section 404(a)(1)(A) 
is 5 percent of the compensation otherwise paid or accrued during the 
taxable year to all employees under the pension or annuity plan. This 
initial 5-percent limitation applies to the first taxable year for which 
a deduction is allowed for contributions to or under such a plan and 
also applies to any subsequent year (other than one described in 
paragraph (d) of this section) for which the 5-percent figure is not 
reduced as provided in this section. For years to which the initial 5-
percent limitation applies, no adjustment on account of prior experience 
is required. If the contributions do not exceed the initial 5-percent 
limitation in the first taxable year to which this limitation applies, 
the taxpayer need not submit actuarial data for such year.
    (b) For the first taxable year following the first year to which the 
initial 5-percent limitation applies, and for every fifth year 
thereafter, or more frequently where preferable to the taxpayer, the 
taxpayer shall submit with his return an actuarial certification of the 
amount reasonably necessary to provide the remaining unfunded cost of 
past and current service credits of all employees under the plan with a 
statement explaining all the methods, factors, and assumptions used in 
determining such amount. This amount may be determined as the sum of (1) 
the unfunded past service cost as of the beginning of the year, and (2) 
the normal cost for the year. Such costs shall be determined by methods, 
factors, and assumptions appropriate as a basis of limitations under 
section 404(a)(1)(C). Whenever requested by the district director, a 
similar certification and statement shall be submitted for the year or 
years specified in such request. The district director will make 
periodical examinations of such data at not less than 5-year intervals. 
Based upon such examinations the Commissioner will reduce the limitation 
under section 404(a)(1)(A) below the 5-percent limitation for the years 
with respect to which he finds that the 5-percent limitation exceeds the 
amount reasonably necessary to provide the remaining unfunded cost of 
past and current service credits of all employees under the plan. Where 
the limitation is so reduced, the reduced limitation shall apply until 
the Commissioner finds that a subsequent actuarial valuation shows a 
change to be necessary. Such subsequent valuation may be made by the 
taxpayer at any time and submitted to the district director with a 
request for a change in the limitation. See, however, paragraph (d) of 
this section with respect to taxable years to which the limitation under 
section 404(a)(1)(A) does not apply.
    (c) For the purpose of limitations under section 404(a)(1)(A), 
``compensation otherwise paid or accrued'' means all of the compensation 
paid or accrued except that for which a deduction is allowable under a 
plan that qualifies under section 401(a), including a plan that 
qualifies under section 404(a)(2). Where two or more pension or annuity 
plans cover the same employee, under section 404(a)(1)(A) the deductions 
with respect to each such plan are subject to the limitations applicable 
to the particular plan and the total deductions for all such plans are 
also subject to the limitations which would be applicable thereto if 
they constituted a single plan. Where, because of the particular 
provisions applicable to a large class of employees under a plan, the 
costs with respect to such employees are nominal in comparison with 
their compensation, after the first year to which the initial 5-percent 
limitation applies, deductions under section 404(a)(1)(A) are subject to 
limitations determined by considering the plan applicable to such class 
as if it were a separate plan. Deductions are allowable to the extent of 
the applicable limitations under section 404(a)(1)(A) even where these 
are greater than the applicable limitations under section 404(a)(1)(B) 
or section 404(a)(1)(C).
    (d) The limitation under section 404(a)(1)(A) shall not be used for 
purposes of determining the amount deductible for a taxable year of the 
employer which ends with or within a taxable year of the pension trust 
during which it is not exempt under section

[[Page 376]]

501(a), or, in the case of an annuity plan, during which it does not 
meet the requirements of section 404(a)(2), or which ends after the 
trust or plan has terminated. See Sec. 1.404(a)-7 for rules relating to 
the limitation which is applicable for purposes of determining the 
amount deductible for such a taxable year of the employer.

[T.D. 6500, 25 FR 11685, Nov. 26, 1960, as amended by T.D. 6534, 26 FR 
515, Jan. 20, 1961]



Sec. 1.404(a)-5   Pension and annuity plans; limitations under section 404(a)(1)(B).

    (a) Subject to the applicable general conditions and limitations 
(see Sec. 1.404(a)-3), under section 404(a)(1)(B), deductions may be 
allowed to the extent of limitations based on costs determined by 
distributing the remaining unfunded cost of the past and current service 
credits with respect to all employees covered under the trust or plan as 
a level amount or level percentage of compensation over the remaining 
service of each such employee except that, as to any three individuals 
with respect to whom more than 50 percent of such remaining unfunded 
cost attributable to such individuals shall be distributed evenly over a 
period of at least five taxable years. See, however, paragraph (e) of 
this section with respect to taxable years to which the limitation under 
section 404(a)(1)(B) does not apply.
    (b) The statutory limitation for any taxable year under section 
404(a)(1)(B) is any excess of the amount of the costs described in 
paragraph (a) of this section for the year over the amount allowable as 
a deduction under section 404(a)(1)(A).
    (c) For this purpose, such excess, adjusted for prior experience, 
may be computed for each year as follows, all determinations being made 
as of the beginning of the year:
    (1) Determine the value of all benefits expected to be paid, after 
the beginning of the year for all employees, any former employees, and 
any other beneficiaries, then covered under the plan.
    (2) If employees contribute under the plan, determine the value of 
all contributions expected to be made after the beginning of the year by 
employees then covered under the plan.
    (3) Determine the value of all funds of the plan as of the beginning 
of the year.
    (4) Determine the amount remaining to be distributed as a level 
amount or as a level percentage of compensation over the remaining 
future service of each employee by subtracting from subparagraph (1) of 
this paragraph the sum of subparagraphs (2) and (3) of this paragraph.
    (5) Determine the value of all compensation expected to be paid 
after the beginning of the year to all employees then covered under the 
plan.
    (6) Determine an accrual rate for each employee by dividing 
subparagraph (5) of this paragraph into subparagraph (4) of this 
paragraph.
    (7) Compute the excess under section 404(a)(1)(B) for the year by 
multiplying the compensation paid to all employees covered under the 
plan during the year by any excess of subparagraph (6) of this paragraph 
over 5 percent. In general, where this method is used, the limitation 
under section 404(a)(1)(B) will be equal to the excess so computed 
without further adjustment on account of prior favorable experience, 
provided all the factors and assumptions used are reasonable in view of 
all applicable considerations (see Sec. 1.404(a)-3) and provided 
subparagraph (5) of this paragraph is not less than five times the 
annual rate of compensation in effect at the beginning of the year.
    (d) Instead of determining the excess deductible under section 
404(a)(1)(B) by the method shown in paragraph (c), such excess may be 
based upon cost determined by some other method which is reasonable and 
appropriate under the circumstances. Thus, such excess may be based on 
the amounts necessary with respect to each individual covered employee 
to provide the remaining unfunded cost of all his benefits under the 
plan distributed as a level amount over the period remaining until the 
normal commencement of his retirement benefits, in accordance with other 
generally accepted actuarial methods which are reasonable and 
appropriate in view of the provisions of the plan, the funding medium, 
and other applicable considerations.

[[Page 377]]

    (e) The limitation under section 404(a)(1)(B) shall not be used for 
purposes of determining the amount deductible for a taxable year of the 
employer which ends with or within a taxable year of the pension trust 
during which it is not exempt under section 501(a), or, in the case of 
an annuity plan, during which it does not meet the requirements of 
section 404(a)(2), or which ends after the trust or plan has terminated. 
See Sec. 1.404(a)-7 for rules relating to the limitation which is 
applicable for purposes of determining the amount deductible for such a 
taxable year of the employer.

[T.D. 6500, 25 FR 11686, Nov. 26, 1960, as amended by T.D. 6534, 26 FR 
515, Jan. 20, 1961]



Sec. 1.404(a)-6   Pension and annuity plans; limitations under section 404(a)(1)(C).

    (a) Application to a taxable year of the employer which ends with or 
within a taxable year of the pension trust or annuity plan for which it 
is exempt under section 501(a) or meets the requirements of section 
404(a)(2). (1) The rules in this paragraph are applicable with respect 
to the limitation under section 404(a)(1)(C) for taxable years of the 
employer which end with or within a taxable year of the pension trust 
for which it is exempt under section 501(a), or, in the case of an 
annuity plan, during which it meets the requirements of section 
404(a)(2). See paragraph (b) of this section for rules relating to the 
limitation under section 404(a)(1)(C) for other taxable years of the 
employer.
    (2) Subject to the applicable general conditions and limitations 
(see Sec. 1.404(a)-3), in lieu of amounts deductible under the 
limitations of section 404(a)(1)(A) and section 404(a)(1)- (B), 
deductions may be allowed under section 404(a)(1)(C) to the extent of 
limitations based on normal and past service or supplementary costs of 
providing benefits under the plan. ``Normal cost'' for any year is the 
amount actuarially determined which would be required as a contribution 
by the employer in such year to maintain the plan if the plan had been 
in effect from the beginning of service of each then included employee 
and if such costs for prior years had been paid and all assumptions as 
to interest, mortality, time of payment, etc., had been fulfilled. Past 
service or supplementary cost at any time is the amount actuarially 
determined which would be required at such time to meet all the future 
benefits provided under the plan which would not be met by future normal 
costs and employee contributions with respect to the employees covered 
under the plan at such time.
    (3) The limitation under section 404(a)(1)(C) for any taxable year 
to which this paragraph applies is the sum of normal cost for the year 
plus an amount not in excess of one-tenth of the past service or 
supplementary cost as of the date the past service or supplementary 
credits are provided under the plan. For this purpose, the normal cost 
may be determined by any generally accepted actuarial method and may be 
expressed either as (i) the aggregate of level amounts with respect to 
each employee covered under the plan, (ii) a level percentage of payroll 
with respect to each employee covered under the plan, or (iii) the 
aggregate of the single premium or unit costs for the unit credits 
accruing during the year with respect to each employee covered under the 
plan, provided, in any case, that the method is reasonable in view of 
the provisions and coverage of the plan, the funding medium, and other 
applicable considerations. The limitation may include one-tenth of the 
past service or supplementary cost as of the date the provisions 
resulting in such cost were put into effect, but it is subject to 
adjustments for prior favorable experience. See Sec. 1.404(a)-3. In any 
case, past service or supplementary costs shall not be included in the 
limitation for any year in which the amount required to fund fully or to 
purchase such past service or supplementary credits has been deducted, 
since no deduction is allowable for any amount (other than the normal 
cost) which is paid in after such credits are fully funded or purchased.
    (b) Application to a taxable year of the employer which does not end 
with or within a taxable year of the pension trust or annuity plan for 
which it is exempt under section 501(a) or meets the requirements of 
section 404(a)(2). (1) The rules in this paragraph are applicable with 
respect to the limitation under section

[[Page 378]]

404(a)(1)(C) for taxable years of the employer which end with or within 
a taxable year of the pension trust during which it is not exempt under 
section 501(a), or, in the case of an annuity plan, during which it does 
not meet the requirements of section 404(a)(2), or which end after the 
trust or plan has terminated. Since contributions paid in such taxable 
years of the employer are not deductible under section 404(a) (1) or (2) 
(except as provided in section 404(a)(6)), the limitation under section 
404(a)(1)(C) for such taxable years relates only to the amount of any 
excess contributions that may be carried over to such taxable years 
under section 404(a)(1)(D).
    (2) Subject to the applicable general conditions and limitations 
(see Sec. 1.404(a)-3), deductions may be allowed under section 
404(a)(1)(C) for taxable years of the employer to which this paragraph 
applies to the extent of limitations based on past service or 
supplementary costs of providing benefits under the plan. For definition 
of the ``past service or supplementary cost at any time'', see paragraph 
(a)(2) of this section.
    (3) The limitation under section 404(a)(1)(C) for any taxable year 
to which this paragraph applies is an amount not in excess of one-tenth 
of the past service or supplementary cost as of the date the past 
service or supplementary credits are provided under the plan. The 
limitation under section 404(a)(1)(C) is subject, however, to 
adjustments for prior favorable experience. In any case, no amounts are 
deductible under section 404(a)(1)(C) for any year to which this 
paragraph applies if the amount required to fund fully or to purchase 
the past service or supplementary credits has been deducted in prior 
taxable years of the employer.

[T.D. 6534, 26 FR 515, Jan. 20, 1961]



Sec. 1.404(a)-7   Pension and annuity plans; contributions in excess of limitations under section 404(a)(1); application of section 404(a)(1)(D).

    When contributions paid by an employer in a taxable year to or under 
a pension or annuity plan exceed the limitations applicable under 
section 404(a)(1) but otherwise satisfy the conditions for deduction 
under section 404(a) (1) or (2), then in accordance with section 
404(a)(1)(D), the excess contributions are carried over and are 
deductible in succeeding taxable years of the employer in order of time 
pursuant to the following rules:
    (a) In the case of a succeeding taxable year of the employer which 
ends with or within a taxable year of the pension trust during which it 
is not exempt under section 501(a), or, in the case of an annuity plan, 
during which it meets the requirements of section 404(a)(2), such excess 
contributions are deductible to the extent of the difference between the 
amount paid and deductible in such succeeding taxable year and the 
limitation applicable to such year under section 404(a)(1) (A), (B), or 
(C).
    (b) In the case of a succeeding taxable year of the employer which 
ends with or within a taxable year of the pension trust during which it 
is not exempt under section 501(a), or, in the case of an annuity plan, 
during which it does not meet the requirements of section 404(a)(2), or 
which ends after the trust or plan has terminated, such excess 
contributions are deductible to the extent of the limitation applicable 
to such year under section 404(a)(1)(C) (see paragraph (b) of 
Sec. 1.404(a)-6).

The provisions of section 404(a)(1)(D) are to be applied before giving 
effect to the provisions of section 404(a)(7) for any year. The 
carryover provisions of section 404(a)(1)(D), before effect has been 
given to section 404(a)(7), may be illustrated by the following example 
for a plan put into effect in a taxable year ending December 31, 1954:

                    Taxable Year Ending Dec. 31, 1954                   
Amount of contributions paid in year........................    $100,000
Limitation applicable to year...............................      60,000
Amount deductible for year..................................      60,000
                                                             -----------
    Excess carried over to succeeding years.................      40,000
                                                             ===========
                                                                        
                    Taxable Year Ending Dec. 31, 1955                   
                                                                        
Amount of contributions paid in year........................     $25,000
Carried over from previous years............................      40,000
                                                             -----------
    Total deductible subject to limitation..................      65,000
Limitation applicable to year...............................      50,000
Amount deductible for year..................................      50,000
                                                             -----------
    Excess carried over to succeeding years.................      15,000
                                                             ===========
                                                                        

[[Page 379]]

                                                                        
                    Taxable Year Ending Dec. 31, 1956                   
                                                                        
Amount of contributions paid in year........................     $10,000
Carried over from previous years............................      15,000
                                                             -----------
    Total deductible subject to limitation..................      25,000
Limitation applicable to year...............................      45,000
Amount deductible for year..................................      25,000
                                                             -----------
    Excess carried over to succeeding years.................        None
                                                                        



Sec. 1.404(a)-8   Contributions of an employer under an employees' annuity plan which meets the requirements of section 401(a); application of section 
          404(a)(2).

    (a) If contributions are paid by an employer under an annuity plan 
for employees and the general conditions and limitations applicable to 
deductions for such contributions are satisfied (see Sec. 1.404(a)-1), 
the contributions are deductible under section 404(a)(2) if the further 
conditions provided therein are satisfied. For the meaning of ``annuity 
plan'' as used here, see Sec. 1.404(a)-3. In order that contributions by 
the employer may be deducted under section 404(a)(2), all of the 
following conditions must be satisfied:
    (1) The contributions must be paid toward the purchase of retirement 
annuities (or for disability, severance, insurance, survivorship 
benefits incidental and directly related to such annuities, or medical 
benefits described in section 401(h) as defined in paragraph (a) of 
Sec. 1.404(h)-1) under an annuity plan for the exclusive benefit of the 
employer's employees or their beneficiaries.
    (2) The contributions must be paid in a taxable year of the employer 
which ends with or within a year of the plan for which it meets the 
applicable requirements set forth in section 401(a) (3), (4), (5), (6), 
(7), (8), (11), (12), (13), (14), (15), (16), and (19). In the case of a 
plan which covers a self-employed individual, the contributions must be 
paid in a taxable year of the employer which ends with or within a year 
of the plan for which it also meets the requrements of section 401(a), 
(9), (10), (17), and (18) and of section 401(d) (other than paragraph 
(1)). In the case of a plan which covers a shareholder-employee within 
the meaning of section 1379(d), the contributions must be paid in a 
taxable year of the employer which ends with or within a year of the 
plan for which it also meets the requirements of section 401(a) (17) and 
(18). See section 401(a) and the regulations thereunder for the 
requirements and the applicable effective dates of the respective 
paragraphs set forth in section 401(a). Any contributions of an employer 
which are paid in a taxable year of the employer ending with or within a 
year of the plan for which it meets the applicable requirements of 
section 401 may be carried over and deducted in a succeeding taxable 
year of the employer in accordance with section 404(a)(1)(D), whether or 
not such succeeding taxable year ends with or within a taxable year of 
the plan for which it meets the requirements set out in section 401 (a) 
and (d). See section 401(b) and the regulations thereunder for special 
rules allowing certain plan amendments to be given retroactive effect. 
See section 404(a)(6) for a special rule for determining the time when a 
contribution is deemed to have been made.
    (3) There must be a definite written arrangement between the 
employer and the insurer that refunds of premiums, if any, shall be 
applied within the taxable year of the employer in which received or 
within the next succeeding taxable year toward the purchase of 
retirement annuities (or for disability, severance, insurance, 
survivorship benefits incidental and directly related to such annuities, 
or medical benefits described in section 401(h) as defined in paragraph 
(a) of Sec. 1.401(h)-1 under the plan. For the purpose of this 
condition, ``refunds of premiums'' means payments by the insurer on 
account of credits such as dividends, experience rating credits, or 
surrender or cancellation credits. The arrangement may be in the form of 
contract provisions or written directions of the employer or partly in 
one form and partly in another. This condition will be considered 
satisfied where--
    (i) All credits are applied regularly, as they are determined, 
toward the premiums next due under the contracts before any further 
employer contributions are so applied, and
    (ii) Under the arrangement,
    (A) No refund of premiums may be made during continuance of the plan 
unless applied as aforesaid, and

[[Page 380]]

    (B) If refunds of premiums may be made after discontinuance or 
termination, whichever is applicable, of the plan on account of 
surrenders or cancellations before all retirement annuities provided 
under the plan with respect to service before its discontinuance or 
termination have been purchased, such refunds will be applied in the 
taxable year of the employer in which received, or in the next 
succeeding taxable year, to purchase retirement annuities for employees 
by a procedure which does not contravene the conditions of section 
401(a)(4). If the plan also includes medical benefits described in 
section 401(h) as defined in paragraph (a) of Sec. 1.401(h)-1, any 
refund of premiums attributable to such benefits must, in accordance 
with these rules, be applied toward the purchase of medical benefits 
described in section 401(h).
    (4) Any amounts described in subparagraph (3) of this paragraph 
which are attributable to contributions on behalf of a self-employed 
individual must be applied toward the purchase of retirement benefits. 
Amounts which are so applied are not contributions and thus are not 
taken into consideration in determining--
    (i) The amount deductible with respect to contributions on his 
behalf, nor
    (ii) In the case of an owner-employee, the maximum amount of 
contributions that may be made on his behalf.
    (b) Where the above conditions are satisfied, the amounts deductible 
under section 404(a)(2) are governed by the limitations provided in 
section 404(a)(1). See Secs. 1.404(a)-3 to 1.404(a)-7, inclusive.

(Sec. 411 Internal Revenue Code of 1954 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42321, Aug. 23, 1977]



Sec. 1.404(a)(8)-1T  Deductions for plan contributions on behalf of self-employed individuals. (Temporary)

    Q: How does the amendment to section 404(a)(8)(D), made by section 
713(d)(6) of the Tax Reform Act of 1984 (TRA of 1984), affect section 
404(a)(8)(C)?
    A: In applying the rules of section 404(a)(8)(C), the Service will 
treat the amendment to section 404(a)(8)(D) as also having been made to 
section 404(a)(8)(C), pending enactment of technical corrections to TRA 
of 1984. The effect of treating the amendment as having also been made 
to section 404(a)(8)(C) is to increase the amount of contributions on 
behalf of a self-employed individual that will be treated as satisfying 
section 162 or 212. Generally, therefore, a contribution on behalf of a 
self-employed individual is treated as satisfying section 162 or 212 if 
it is not in excess of the individual's earned income for the year, 
determined without regard to the deduction allowed by section 404 for 
the self-employed individual's contribution.

[T.D. 8073, 51 FR 4321, Feb. 4, 1986]



Sec. 1.404(a)-9   Contributions of an employer to an employees' profit-sharing or stock bonus trust that meets the requirements of section 401(a); application 
          of section 404(a)(3)(A).

    (a) If contributions are paid by an employer to a profit-sharing or 
stock bonus trust for employees and the general conditions and 
limitations applicable to deductions for such contributions are 
satisfied (see Sec. 1.404(a)-1), the contributions are deductible under 
section 404(a)(3)(A) if the further conditions provided therein are also 
satisfied. In order to be deductible under the first, second, or third 
sentence of section 404(a)(3)(A), the contributions must be paid (or 
deemed to have been paid under section 404(a)(6)) in a taxable year of 
the employer which ends with or within a taxable year of the trust for 
which it is exempt under section 501(a) and the trust must not be 
designed to provide retirement benefits for which the contributions can 
be determined actuarially. Excess contributions paid in such a taxable 
year of the employer may be carried over and deducted in a succeeding 
taxable year of the employer in accordance with the third sentence of 
section 404(a)(3)(A), whether or not such succeeding taxable year ends 
with or within a taxable year of the trust for which it is exempt under 
section 501(a). This section is also applicable to contributions to a 
foreign situs profit-sharing or stock bonus trust which could qualify 
for exemption under section 501(a) except

[[Page 381]]

that it is not created or organized and maintained in the United States.
    (b) The amount of deductions under section 404(a)(3)(A) for any 
taxable year is subject to limitations based on the compensation 
otherwise paid or accrued by the employer during such taxable year to 
employees who are beneficiaries under the plan. For purposes of 
computing this limitation, the following rules are applicable:
    (1) In the case of a taxable year of the employer which ends with or 
within a taxable year of the trust for which it is exempt under section 
501(a), the limitation shall be based on the compensation otherwise paid 
or accrued by the employer during such taxable year of the employer to 
the employees who, in such taxable year of the employer, are 
beneficiaries of the trust funds accumulated under the plan.
    (2) In the case of a taxable year of the employer which ends with or 
within a taxable year of the trust during which it is not exempt under 
section 501(a), or which ends after the trust has terminated, the 
limitation shall be based on the compensation otherwise paid or accrued 
by the employer during such taxable year of the employer to the 
employees who, at any time during the one-year period ending on the last 
day of the last calendar month during which the trust was exempt under 
section 501(a), were beneficiaries of the trust funds accumulated under 
the plan.

For purposes of this paragraph, ``compensation otherwise paid or 
accrued'' means all of the compensation paid or accrued except that for 
which a deduction is allowable under a plan that qualifies under section 
401(a), including a plan that qualifies under section 404(a)(2). The 
limitations under section 404(a)(3)(A) apply to the total amount 
deductible for contributions to the trust regardless of the manner in 
which the funds of the trust are invested, applied, or distributed, and 
no other deduction is allowable on account of any benefits provided by 
contributions to the trust or by the funds thereof. Where contributions 
are paid to two or more profit-sharing or stock bonus trusts satisfying 
the conditions for deduction under section 404(a)(3)(A), such trusts are 
considered as a single trust in applying these limitations.
    (c) The primary limitation on deductions for a taxable year is 15 
percent of the compensation otherwise paid or accrued by the employer 
during such taxable year to the employees who are beneficiaries under 
the plan. See paragraph (b) of this section for rules for determining 
who are the beneficiaries under the plan.
    (d) In order that the deductions may average 15 percent of 
compensation otherwise paid or accrued over a period of years, where 
contributions in some taxable year are less than the primary limitation 
but contributions in some succeeding taxable year exceed the primary 
limitation, deductions in each succeeding year are subject to a 
secondary limitation instead of to the primary limitation. The secondary 
limitation for any year is equal to the lesser of (1) twice the primary 
limitation for the year, or (2) any excess of (i) the aggregate of the 
primary limitations for the year and for all prior years over (ii) the 
aggregate of the deductions allowed or allowable under the limitations 
provided in section 404(a)(3)(A) for all prior years. Since 
contributions paid into a profit-sharing or stock bonus trust are 
deductible under section 404(a)(3)(A) only if they are paid (or deemed 
to have been paid under section 404(a)(6)) in a taxable year of the 
employer which ends with or within a taxable year of the trust for which 
it is exempt under section 501(a), the secondary limitation described in 
this paragraph is not applicable with respect to determining amounts 
deductible for a taxable year of the employer which ends with or within 
a taxable year of the trust during which it is not exempt under section 
501(a), or which ends after the trust has terminated. See paragraph (e) 
of this section for rules relating to amounts which are deductible in 
such a taxable year.
    (e) In any case when the contributions in a taxable year exceed the 
amount allowable as a deduction for the year under section 404(a)(3)(A), 
the excess is deductible in succeeding taxable years, in order of time, 
in accordance with the following limitations:
    (1) If the succeeding taxable year ends with or within a taxable 
year of

[[Page 382]]

the trust for which it is exempt under section 501(a), such excess is 
deductible in any such succeeding taxable year in which the 
contributions are less than the primary limitation for that year; but 
the total deduction for such succeeding taxable year cannot exceed the 
lesser of (i) the primary limitation for such year, or (ii) the sum of 
the contributions in such year and the excess contributions not deducted 
under the limitations of section 404(a)(3)(A) for prior years.
    (2) If the succeeding taxable year ends with or within a taxable 
year of the trust during which it is not exempt under section 501(a), or 
if such succeeding taxable year ends after the trust has terminated, the 
total deduction for such succeeding taxable year cannot exceed the 
lesser of (i) the primary limitation for such succeeding taxable year, 
or (ii) the excess contributions not deducted under the limitations of 
section 404(a)(3)(A) for prior years.

In no case, however, are excess contributions deductible in a succeeding 
taxable year if such contributions were not paid (or deemed to have been 
paid under section 404(a)(6)) in a taxable year of the employer which 
ends with or within a taxable year of the trust for which it is exempt 
under section 501(a).
    (f) In case deductions are allowable under section 404(a) (1) or 
(2), as well as under section 404(a)(3)(A), the limitations under 
section 404(a) (1) and (3)(A) are determined and applied without giving 
effect to the provisions of section 404(a)(7), but the amounts allowable 
as deductions are subject to the further limitations provided in section 
404(a)(7). See Sec. 1.404(a)-13.
    (g) The provisions of section 404(a)(3)(A) before giving effect to 
section 404(a)(7), may be illustrated as follows:

  Illustration of Provisions of Section 404(a)(3)(A) for a Plan Put Into Effect in the Taxable (Calendar) Year  
   1954, Before Giving Effect to Section 404(a)(7) (All Figures Represent Thousands of Dollars and All Taxable  
  (Calendar) Years Are Years Which End With or Within a Taxable Year of the Trust For Which it is Exempt Under  
                                                Section 501(a) )                                                
----------------------------------------------------------------------------------------------------------------
                                                                         Taxable (calendar) years               
                                                         -------------------------------------------------------
                                                           1954    1955    1956    1957    1958    1959    1960 
----------------------------------------------------------------------------------------------------------------
1. Amount of contributions:                                                                                     
  (i) In taxable year...................................     $65     $10     $15    $100     $70     $40     $30
  (ii) Carried over from prior taxable years............       0       8       0       0       4       5       3
2. Primary limitation applicable to year:                                                                       
  15 percent of covered compensation in year\1\.........      57      54      51      48      45      42      39
3. Secondary limitation applicable to year:                                                                     
  (i) Twice primary limitation..........................  ......  ......  ......      96      90      84  ......
                                                         =======================================================
  (ii) (a) Aggregate primary limitations (see item 2)...  ......  ......  ......     210     255     297  ......
    (b) Aggregate prior deductions (see item 4 (iii))...  ......  ......  ......      90     186     255        
    (c) Excess of (a) over (b)..........................  ......  ......  ......     120      69      42  ......
  (iii) Lesser of (i) or (ii)...........................  ......  ......  ......      96      69      42  ......
                                                         =======================================================
4. Amount deductible for year on account of:                                                                    
  (i) Contributions in year.............................      57      10      15      96      69      40      30
  (ii) Contributions carried over.......................       0       8       0       0       0       2       3
                                                         -------------------------------------------------------
  (iii) Total...........................................      57      18      15      96      69      42      33
5. Excess contributions carried over to succeeding                                                              
 years..................................................       8       0       0       4       5       3      0 
----------------------------------------------------------------------------------------------------------------
\1\ Compensation otherwise paid or accrued during the year to the employees who are beneficiaries of trust funds
  accumulated under the plan in the year.                                                                       

[T.D. 6500, 25 FR 11687, Nov. 26, 1960, as amended by T.D. 6534, 26 FR 
516, Jan. 20, 1961]

[[Page 383]]



Sec. 1.404(a)-10   Profit-sharing plan of an affiliated group; application of section 404(a)(3)(B).

    (a) Section 404(a)(3)(B) allows a corporation a deduction to the 
extent provided in paragraphs (b) and (c) of this section for a 
contribution which it makes for another corporation to a profit-sharing 
plan or a stock bonus plan under which contributions are determined by 
reference to profits, provided the following tests are met:
    (1) The corporation for which the contribution is made and the 
contributing corporation are members of an affiliated group of 
corporations as defined in section 1504, relating to the filing of 
consolidated returns, and both such corporations participate in the 
plan. However, it is immaterial whether all the members of such group 
participate in the plan.
    (2) The corporation for which the contribution is made is required 
under the plan to make the contribution, but such corporation is 
prevented from making such contribution because it has neither current 
nor accumulated earnings or profits, or because its current and 
accumulated earnings or profits are insufficient to make the required 
contribution. To the extent that such a corporation has any current or 
accumulated earnings or profits, it is not considered to be prevented 
from making its required contribution to the plan.
    (3) The contribution is made out of the current or accumulated 
earnings or profits of the contributing corporation.
    (b) The amount that is deductible under section 404(a)(3)(B) is 
determined by applying the rules of section 404(a)(3)(A) and 
Sec. 1.404(a)-9 as if the contribution were made by the corporation for 
which it is made. For example, the primary limitation described in 
paragraph (e) of Sec. 1.404(a)-9 is determined by reference to the 
compensation otherwise paid or accrued to the employees of the 
corporation for which the contribution is made, and the secondary 
limitation described in paragraph (d) of Sec. 1.404(a)-9 and the 
contribution carryover described in paragraph (c) of Sec. 1.404(a)-9 are 
determined by reference to the prior contributions and deductions of 
such corporation. The contributing corporation may deduct the amount so 
determined subject to the limitations contained in paragraph (c) of this 
section. The contributing corporation shall not treat such amount as a 
contribution made by it in applying the rules of section 404(a)(3)(A) 
and Sec. 1.404(a)-9 either for the taxable year for which the 
contribution is made or for succeeding taxable years. The corporation 
for which the contribution is made shall treat the contribution as 
having been made by it in applying the rules of section 404(a)(3)(A) and 
Sec. 1.404(a)-9 for succeeding taxable years.
    (c) The allowance of the deduction under section 404(a)(3)(B) does 
not depend upon whether the affiliated group does or does not file a 
consolidated return. If a consolidated return is filed, it is immaterial 
which of the participating corporations makes the contribution and takes 
the deduction or how the contribution or the deduction is allocated 
among them. However, if a consolidated return is not filed, the 
contribution which is deductible under section 404(a)(3)(B) by each 
contributing corporation shall be limited to that portion of its total 
current and accumulated earnings or profits (adjusted for its 
contribution deductible without regard to section 404(a)(3)(B)) which 
the prevented contribution bears to the total current and accumulated 
earnings or profits of all the participating members of the group having 
such earnings or profits (adjusted for all contributions deductible 
without regard to section 404(a)(3)(B)). For the purpose of this 
section, current earnings or profits shall be computed as of the close 
of the taxable year without diminution by reason of any dividends during 
the taxable year, and accumulated earnings or profits shall be computed 
as of the beginning of the taxable year.
    (d) The application of section 404(a)(3)(B) may be illustrated by 
the following example in which the affiliated group does not file a 
consolidated return:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       (1)                           (2)         (3)         (4)        (5)      (6)      (7)       (8)       (9)      (10)       (11)  
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...............................................  ($10,000)  ($140,000)  ($150,000)   $200,000  \1/5\    $6,000  ........  ........  ........  .........

[[Page 384]]

                                                                                                                                                        
B...............................................    (5,000)     105,000     100,000    300,000    \3/                                                   
                                                                                                  10\     9,000    $9,000   $91,000  6/326 x   $1,674.85
                                                  .........  ..........  ..........  .........  .....  ........  ........  ........    91,000  .........
C...............................................     75,000     175,000     250,000    500,000  \1/2\    15,000    15,000   235,000  6/326 x    4,325.15
                                                  .........  ..........  ..........  .........  .....  ........  ........  ........   235,000  .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
  Total.........................................     60,000     140,000     200,000  1,000,000  .....    30,000    24,000   326,000  ........   6,000.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
Column:                                                                                                                                                 
(1) Member.                                                                                                                                             
(2) Earnings and profits of the taxable year.                                                                                                           
(3) Accumulated earnings and profits at beginning of taxable year.                                                                                      
(4) Total current and accumulated earnings and profits (column 2 plus column 3).                                                                        
(5) Compensation of participating employees.                                                                                                            
(6) Contribution formula: 50 percent of consolidated earnings and profits, allocated among participating member in proportion of covered payroll of each
  to covered payroll of consolidated group.                                                                                                             
(7) Individual contribution had it not been prevented.                                                                                                  
(8) Individual contribution made by each employer for its own employees.                                                                                
(9) Balance of accumulated earnings and profits (column 4 minus column 8).                                                                              
(10) Proportion of make-up contribution.                                                                                                                
(11) Make-up contribution.                                                                                                                              


[T.D. 6500, 25 FR 11688, Nov. 26, 1960]



Sec. 1.404(a)-11   Trusts created or organized outside the United States; application of section 404(a)(4).

    In order that a trust may constitute a qualified trust under section 
401(a) and be exempt under section 501(a), it must be created or 
organized in the United States and maintained at all times as a domestic 
trust. See paragraph (a) of Sec. 1.401-1. Paragraph (4) of section 
404(a) provides, however, that an employer which is a resident, a 
corporation, or other entity of the United States, making contributions 
to a foreign stock bonus, pension, or profit-sharing trust, shall be 
allowed deductions for such contributions, under the applicable 
conditions and within the prescribed limits of section 404(a), if such 
foreign trust would qualify for exemption under section 501(a) except 
for the fact that it is a trust created, organized, or maintained 
outside the United States. Moreover, if a nonresident alien individual, 
foreign corporation, or other entity is engaged in trade or business 
within the United States and makes contributions to a foreign stock 
bonus, pension, or profit-sharing trust, which would qualify under 
section 401(a) and be exempt under section 501(a) except that it is 
created, organized, or maintained outside the United States, such 
contributions are deductible subject to the conditions and limitations 
of section 404(a) and to the extent allowed by section 873 or 882(c).

[T.D. 6500, 25 FR 11689, Nov. 26, 1960]



Sec. 1.404(a)-12   Contributions of an employer under a plan that does not meet the requirements of section 401(a); application of section 404(a)(5).

    (a) In general. Section 404(a)(5) covers all cases for which 
deductions are allowable under section 404(a) (for contributions paid by 
an employer under a stock bonus, pension, profit sharing, or annuity 
plan or for any compensation paid on account of any employee under a 
plan deferring the receipt of such compensation) but not allowable under 
paragraph (1), (2), (3), (4), or (7) of such section. For the rules with 
respect to the taxability of an employee when rights under a nonexempt 
trust become substantially vested, see section 402(b) and the 
regulations thereunder.
    (b) Contributions made after August 1, 1969--(1) In general. A 
deduction is allowable for a contribution paid after August 1, 1969, 
under section 404(a)(5) only in the taxable year of the employer in 
which or with which ends the taxable year of an employee in which an 
amount attributable to such contribution is includible in his gross 
income as compensation, and then only to the extent allowable under 
section 404(a). See Sec. 1.404(a)-1. For example, if an employer A 
contributes $1,000 to the account of its employee E for its taxable 
(calendar) year 1977, but the amount in the account attributable to that 
contribution is not includible in E's gross income until his taxable 
(calendar) year 1980 (at which time the includible amount is $1,150), 
A's deduction for that contribution is $1,000 in

[[Page 385]]

1980 (if allowable under section 404(a)). For purposes of this (1), a 
contribution is considered to be so includible where the employee or his 
beneficiary excludes it from his gross income under section 101(b) or 
subchapter N. To the extent that property of the employer is transferred 
in connection with such a contribution, such transfer will constitute a 
disposition of such property by the employer upon which gain or loss is 
recognized, except as provided in section 1032 and the regulations 
thereunder. The amount of gain or loss recognized from such disposition 
shall be the difference between the value of such property used to 
measure the deduction allowable under this section and the employer's 
adjusted basis in such property.
    (2) Special rule for unfunded pensions and certain death benefits. 
If unfunded pensions are paid directly to former employees, such 
payments are includible in their gross income when paid, and 
accordingly, such amounts are deductible under section 404(a)(5) when 
paid. Similarly, if amounts are paid as a death benefit to the 
beneficiaries of an employee (for example, by continuing his salary for 
a reasonable period), and if such amounts meet the requirements of 
section 162 or 212, such amounts are deductible under section 404(a)(5) 
in any case when they are not includible under the other paragraphs of 
section 404(a).
    (3) Separate accounts for funded plans with more than one employee. 
In the case of a funded plan under which more than one employee 
participates, no deduction is allowable under section 404(a)(5) for any 
contribution unless separate accounts are maintained for each employee. 
The requirement of separate accounts does not require that a separate 
trust be maintained for each employee. However, a separate account must 
be maintained for each employee to which employer contributions under 
the plan are allocated, along with any income earned thereon. In 
addition, such accounts must be sufficiently separate and independent to 
qualify as separate shares under section 663(c). Nothing shall preclude 
a trust which loses its exemption under section 501(a) from setting up 
such acounts and meeting the separate account requirement of section 
404(a)(5) with respect to the taxable years in which such accounts are 
set up and maintained.
    (c) Contributions paid on or before August 1, 1969. No deduction is 
allowable under section 404(a)(5) for any contribution paid on or before 
August 1, 1969, by an employer under a stock bonus, pension, profit-
sharing, or annuity plan, or for any compensation paid on account of any 
employee under plan deferring the receipt of such compensation, except 
in the year when paid, and then only to the extent allowable under 
section 404(a). See Sec. 1.404(a)-1. If payments are made under such a 
plan and the amounts are not deductible under the other paragraphs of 
section 404(a), they are deductible under section 404(a)(5) to the 
extent that the rights of individual employees to, or derived from, such 
employer's contribution or such compensation are nonforfeitable at the 
time the contribution or compensation is paid. If unfunded pensions are 
paid directly to former employees, their rights to such payments are 
nonforfeitable, and accordingly, such amounts are deductible under 
section 404(a)(5) when paid. Similarly, if amounts are paid as a death 
benefit to the beneficiaries of an employee (for example, by continuing 
his salary for a reasonable period), and if such amounts meet the 
requirements of section 162 or 212, such amounts are deductible under 
section 404(a)(5) in any case where they are not deductible under the 
other paragraphs of section 404(a). As to what constitutes 
nonforfeitable rights of an employee in other cases, see Sec. 1.402(b)-
1(d)(2). If an amount is accrued but not paid during the taxable year, 
no deduction is allowable for such amount for such year. If an amount is 
paid during the taxable year to a trust or under a plan and the 
employee's rights to such amount are forfeitable at the time the amount 
is paid, no deduction is allowable for such amount for any taxable year.

(Secs. 83 and 7805 of the Internal Revenue Code of 1954 (83 Stat. 588; 
68A Stat. 917; 26 U.S.C. 83 and 7805))

[T.D. 7554, 43 FR 31926, July 24, 1978]

[[Page 386]]



Sec. 1.404(a)-13   Contributions of an employer where deductions are allowable under section 404(a) (1) or (2) and also under section 404(a)(3); application of 
          section 404(a)(7).

    (a) Where deductions are allowable under section 404(a) (1) or (2) 
on account of contributions under a pension or annuity plan and 
deductions are also allowable under section 404(a)(3) for the same 
taxable year on account of contributions to a profit-sharing or stock 
bonus trust, the total deductions under these sections are subject to 
the provisions of section 404(a)(7) unless no employee who is a 
beneficiary under the trusts or plans for which deductions are allowable 
under section 404(a) (1) or (2) is also a beneficiary under the trusts 
for which deductions are allowable under section 404(a)(3). The 
provisions of section 404(a)(7) apply only to deductions for overlapping 
trusts or plans, i.e., for all trusts or plans for which deductions are 
allowable under section 404(a) (1), (2), or (3) except (1) any trust or 
plan for which deductions are allowable under section 404(a) (1) or (2) 
and which does not cover any employee who is also covered under a trust 
for which deductions are allowable under section 404(a) (3), and (2) any 
trust for which deductions are allowable under section 404(a)(3) and 
which does not cover any employee who is also covered under a trust or 
plan for which deductions are allowable under section 404(a) (1) or (2). 
The limitations under section 404(a)(7) for any taxable year of the 
employer are based on the compensation otherwise paid or accrued during 
the year by the employer to all employees who, in such year, are 
beneficiaries of the funds accumulated under one or more of the 
overlapping trusts or plans. For purposes of the preceding sentence, if 
the taxable year of the employer with respect to which the limitation is 
being computed ends with or within a taxable year of any of the 
overlapping trusts or plans during which any such trust is not exempt 
under section 501(a) or, in the case of a plan, during which it does not 
meet the requirements of section 404(a)(2), or if such taxable year of 
the employer ends after any such trust or plan has terminated, then, 
with respect to such trust or plan, those employees, and only those 
employees, who, at any time during the one-year period ending on the 
last day of the last calendar month during which the trust was exempt 
under section 501(a), or the plan met the requirements of section 
404(a)(2), were beneficiaries of the funds accumulated under such trust 
or plan shall be considered the beneficiaries of such trust or plan in 
the taxable year of the employer with respect to which the limitation is 
being computed. For purposes of this paragraph, ``compensation otherwise 
paid or accrued'' means all of the compensation paid or accrued except 
that for which a deduction is allowable under a plan that qualifies 
under section 401(a), including a plan that qualifies under section 
404(a)(2).
    (b) Under section 404(a)(7), any excess of the total amount 
otherwise deductible for the taxable year under section 404(a) (1), (2), 
or (3) as contributions to overlapping trusts or plans over 25 percent 
of the compensation otherwise paid or accrued during the year to all the 
employees who are beneficiaries under such trusts or plans, is not 
deductible for such year but is deductible for succeeding taxable years, 
in order of time, so that the total deduction for contributions to such 
trusts or plans for a succeeding taxable year is equal to the lesser 
of--
    (1) 30 percent of the compensation otherwise paid or accrued during 
the taxable year to all the employees who are beneficiaries under such 
trusts or plans in the year, or
    (2) The sum of (i) the smaller of (a) 25 percent of the compensation 
otherwise paid or accrued during the taxable year to all employees who 
are beneficiaries under such trusts or plans in the year, or (b) the 
total of the amounts otherwise deductible under section 404(a) (1), (2), 
or (3) for the year for such trusts or plans and (ii) any carryover to 
the year from prior years under section 404(a)(7), i.e., any excess 
otherwise deductible under section 404(a) (1), (2), or (3), but not 
deducted for a prior taxable year because of the limitations under 
section 404(a)(7).
    (c) The limitations under section 404(a)(7) are determined and 
applied after all the limitations, deductions otherwise allowable, and 
carryovers under section 404(a) (1), (2), and (3) have

[[Page 387]]

been determined and applied, and, in particular, after effect has been 
given to the carryover provision in section 404(a)(1)(D) and in the 
second and third sentences of section 404(a)(3)(A). Where the 
limitations under section 404(a)(7) reduce the total amount deductible, 
the excess deductible in succeeding years is treated as a carryover 
which is distinct from, and additional to, any excess contributions 
carried over and deductible in succeeding years under the provisions in 
section 404(a)(1)(D) or in the third sentence of section 404(a)(3)(A). 
The application of the provisions of section 404(a)(7) and the treatment 
of carryovers for a case where the taxable years are calendar years and 
the overlapping trusts or plans consist of a pension trust and a profit-
sharing trust put into effect in 1954 and covering the same employees 
may be illustrated as follows:

  Illustration of Application of Provisions of Section 404(a)(7) and of 
   Treatment of Carryovers for Overlapping Pension and Profit-Sharing   
   Trusts Put Into Effect in 1954 and Covering the Same Employees (All  
 Figures Represent Thousands of Dollars and all Taxable (Calendar) Years
of the Employer are Years Which End With or Within A Taxable Year of the
           Trust for Which it is Exempt Under Section 501(a))           
------------------------------------------------------------------------
                                            Taxable calendar years      
                                     -----------------------------------
                                        1954     1955     1956     1957 
------------------------------------------------------------------------
   before giving effect to section                                      
              404(a)(7)                                                 
                                                                        
Pension trust contributions and                                         
 limitations, deductions, and                                           
 carryovers under section 404(a)(1):                                    
  1. Contributions paid in year.....     $215      $85     $140      $60
  2. Contributions carried over from                                    
   prior years......................        0        5        0       20
                                     -----------------------------------
  3. Total deductible for year                                          
   subject to limitation............      215       90      140       80
  4. Limitation applicable to year..      210      175      120       85
  5. Amount deductible for year.....      210       90      120       80
                                     -----------------------------------
  6. Contributions carried over to                                      
   succeeding years.................        5        0       20        0
                                     ===================================
Profit-sharing trust contributions                                      
 and limitations, deductions, and                                       
 carryovers under section 404(a)(3):                                    
  7. Contributions paid in year.....      200      125      105       65
  8. Contributions carried over from                                    
   prior years......................        0       35       10        0
                                     -----------------------------------
  9. Total deductible for year                                          
   subject to limitation............      200      160      115       65
  10. Limitation applicable to year.      165      150      135  \1\ 110
  11. Amount deductible for year....      165      150      115       65
                                     -----------------------------------
  12. Contributions carried over to                                     
   succeeding years.................       35       10        0        0
                                     ===================================
  application of section 404(a)(7)                                      
                                                                        
Totals for pension and profit-                                          
 sharing trust:                                                         
  13. Amount deductible for year                                        
   under section 404(a)(7):                                             
    (1) 30 percent of compensation                                      
     covered in year \2\............    (\3\)      300      270      180
    (2) (i) (a) 25 percent of                                           
     compensation covered in year                                       
     \2\............................      275      250      225      150
      (b) Total amount otherwise                                        
       deductible for year: item 5                                      
       plus item 11.................      375      240      235      145
                                     ===================================
      (c) Smaller of (a) or (b).....      275      240      225      145
    (ii) Carryover from prior years                                     
     under section 404(a)(7)........        0      100       40       10
                                     -----------------------------------
    (iii) Sum of (i)(c) and (ii)....      275      340      265      155
    (3) Amount deductible: Lesser of                                    
     (1) or (2)(iii)................      275      300      265      155
14. Carryover to succeeding years                                       
 under section 404(a)(7): item                                          
 13(2)(ii) plus item 3(2)(i)(b)                                         
 minus item 13(3)...................      100       40       10        0
------------------------------------------------------------------------
\1\ Includes carryover of 20 from 1956.                                 
\2\ Compensation otherwise paid or accrued during the year to the       
  employees who are beneficiaries under the trusts in the year.         
\3\ 30 percent limitation not applicable to first year of plan.         

[T.D. 6500, 25 FR 11689, Nov. 26, 1960, as amended by T.D. 6534, 26 FR 
517, Jan. 20, 1961]

[[Page 388]]



Sec. 1.404(a)-14  Special rules in connection with the Employee Retirement Income Security Act of 1974.

    (a) Purpose of this section. This section provides rules for 
determining the deductible limit under section 404(a)(1)(A) of the 
Internal Revenue Code of 1954 for defined benefit plans.
    (b) Definitions. For purposes of this section--
    (1) Section 404(a). The term ``old section 404(a)'' means section 
404(a) as in effect on September 1, 1974. Any reference to section 404 
without the designation ``old'' is a reference to section 404 as amended 
by the Employee Retirement Income Security Act of 1974.
    (2) Ten-year amortization base. The term ``10-year amortization 
base'' means either the past service and other supplementary pension and 
annuity credits described in section 404(a)(1)(A)(iii) or any base 
established in accordance with paragraph (g) of this section. A plan may 
have several 10-year amortization bases to reflect different plan 
amendments, changes in actuarial assumptions, changes in funding method, 
and experience gains and losses of previous years.
    (3) Limit adjustment. The term ``limit adjustment'' with respect to 
any 10-year amortization base is the lesser of--
    (i) The level annual amount necessary to amortize the base over 10 
years using the valuation rate, or
    (ii) The unamortized balance of the base,

in each case using absolute values (solely for the purpose of 
determining which is the lesser). To compute the level amortization 
amount, the base may be divided by the present value of an annuity of 
one dollar, obtained from standard annuity tables on the basis of a 
given interest rate (the valuation rate) and a known period (the 
amortization period).
    (4) Absolute value. The term ``absolute value'' for any number is 
the value of that number, treating negative numbers as if they were 
positive numbers. For example, the absolute value of 5 is 5 and the 
absolute value of minus 3 is 3. On the other hand, the true value of 
minus 3 is minus 3. This term is relevant to the computation of the 
limit adjustment described in paragraph (b)(3) and the remaining 
amortization period of combined bases described in paragraph (i)(3) of 
this section.
    (5) Valuation rate. The term ``valuation rate'' means the assumed 
interest rate used to value plan liabilities.
    (c) Use of plan in determining deductible limit for employer's 
taxable year. Although the deductible limit applies for an employer's 
taxable year, the deductible limit is determined on the basis of a plan 
year. If the employer's taxable year coincides with the plan year, the 
deductible limit for the taxable year is the deductible limit for the 
plan year that coincides with that year. If the employer's taxable year 
does not coincide with the plan year, the deductible limit under section 
404(a)(1)(A) (i), (ii), or (iii) for a given taxable year of the 
employer is one of the following alternatives:
    (1) The deductible limit determined for the plan year commencing 
within the taxable year.
    (2) The deductible limit determined for the plan year ending within 
the taxable year, or
    (3) A weighted average of alternatives (1) and (2). Such an average 
may be based, for example, upon the number of months of each plan year 
falling within the taxable year.

The employer must use the same alternative for each taxable year unless 
consent to change is obtained from the Commissioner under section 446 
(e).
    (d) Computation of deductible limit for a plan year--(1) General 
rules. The computation of the deductible limit for a plan year is based 
on the funding methods, actuarial assumptions, and benefit structure 
used for purposes of section 412, determined without regard to section 
412(g) (relating to the alternative minimum funding standard), for the 
plan year. The method of valuing assets for purposes of section 404 must 
be the same method of valuing assets used for purposes of section 412.
    (2) Special adjustments of computations under section 412. To apply 
the rules of this section (i.e., rules regarding the computation of 
normal cost with aggregate type funding methods, unfunded liabilities, 
and the full funding limitation described in paragraph (k) of the 
section, where applicable) with

[[Page 389]]

respect to a given plan year in computing deductible limits under 
section 404 (a)(1)(A), the following adjustments must be made:
    (i) There must be excluded from the total assets of the plan the 
amount of any plan contribution for a plan year for which the plan was 
qualified under section 401(a), 403(a) or 405(a) that has not been 
previously deducted, even though that amount may have been credited to 
the funding standard account under section 412(b)(3). In the case of a 
plan using a spread gain funding method which maintains an unfunded 
liability (e.g., the frozen initial liability method, but not the 
aggregate method), the amount described in the preceding sentence must 
be included in the unfunded liability of the plan.
    (ii) There must be included in the total assets of the plan for a 
plan year the amount of any plan contribution that has been deducted 
with respect to a prior plan year, even though that amount is considered 
under section 412 to be contributed in a plan year subsequent to that 
prior plan year. In the case of a plan using a spread gain funding 
method which does not maintain an unfunded liability, the amount 
described in the preceding sentence must be excluded from the unfunded 
liability of the plan.

The special adjustments described in paragraph (d)(2) (i) and (ii) of 
this section apply on a year-by-year basis for purposes of section 
404(a)(1)(A) only. Thus, the adjustments have no effect on the 
computation of the minimum funding requirement under section 412.
    (e) Special computation rules under section 404(a)(1)(A)(i)--(1) In 
general. For purposes of determining the deductible limit under section 
404(a)(1)(A)(i), the deductible limit with respect to a plan year is the 
sum of--
    (i) The amount required to satisfy the minimum funding standard of 
section 412(a) (determined without regard to section 412(g)) for the 
plan year and
    (ii) An amount equal to the includible employer contributions. The 
term ``includible employer contributions'' means employer contributions 
which were required by section 412 for the plan year immediately 
preceding such plan year, and which were not deductible under section 
404(a) for the prior taxable year of the employer solely because they 
were not contributed during the prior taxable year (determine with 
regard to section 404(a)(6)).
    (2) Rule for an employer using alternative minimum funding standard 
account and computing its deduction under section 404(a)(1)(A)(i). This 
paragraph (e)(2) applies if the minimum funding requirements for the 
plan are determined under the alternative minimum funding standard 
described in section 412(g) for both the current plan year and the 
immediately preceding plan year. In that case, the deductible limit 
under section 404(a)(1)(A)(i) (regarding the minimum funding requirement 
of section 412) for the current year is the sum of the amount determined 
under the rules of paragraph (e)(1) of this section.
    (i) Plus the charge under section 412(b)(2)(D), and
    (ii) Less the credit under section 412(b)(3)(D),

that would be required if in the current plan year the use of the 
alternative method were discontinued.
    (f) Special computation rules under section 404(a)(1)(A) (ii) and 
(iii)--(1) In general. Subject to the full funding limitation described 
in paragraph (k) of this section, the deductible limit under section 
404(a)(1)(A)(ii) and (iii) is the normal cost of the plan (determined in 
accordance with paragraph (d) of this section).
    (2) Adjustments in calculating limit under section 404 
(a)(1)(A)(iii). In calculating the deductible limit under section 
404(a)(1)(A)(iii), the normal cost of the plan is--
    (i) Decreased by the limit adjustments to any unamortized bases 
required by paragraph (g) of this section, for example, bases that are 
due to a net experience gain, a change in actuarial assumptions, a 
change in funding method, or a plan provision or amendment which 
decreases the accrued liability of the plan, and
    (ii) Increased by the limit adjustments of any unamortized 10-year 
amortization bases required by paragraph (g) or (j) of this section, for 
example, bases that are due to a net experience loss, a change in 
actuarial assumptions, a change in funding method, or a

[[Page 390]]

plan provision or amendment which increases the accrued liability.
    (3) Timing for computations and interest adjustments under section 
404(a)(1)(A) (ii) and (iii). Regardless of the actual time when 
contributions are made to a plan, in computing the deductible limit 
under section 404(a)(1)(A) (ii) and (iii) the normal cost and limit 
adjustments shall be computed as of the date when contributions are 
assumed to be made (``the computation date'') and adjusted for interest 
at the valuation rate from the computation date to the earlier of--
    (i) The last day of the plan year used to compute the deductible 
limit for the taxable year, or
    (ii) The last day of that taxable year. For additional provisions 
relating to the timing of computations and interest adjustments, see 
paragraph (h)(6) of this section (relating to the timing of computations 
and interest adjustments in the maintenance of 10-year amortization 
bases). For taxable years beginning before April 22, 1981, computations 
under the preceding sentence may, as an alternative, be based on prior 
published positions of the Internal Revenue Service under section 
404(a).
    (4) Special limit under section 404(a)(1)(A)(ii). If the deduction 
for the plan year is determined solely on the basis of section 
404(a)(1)(A)(ii) (that is, without regard to clauses (i) or (iii)), the 
special limitation contained in section 404(a)(1)(A)(ii), regarding the 
unfunded cost with respect to any three individuals, applies, 
notwithstanding the rules contained in paragraphs (d)(2) and (f)(1) of 
this section.
    (g) Establishment of a 10-year amortization base--(1) Experience 
gains and losses. In the case of a plan valued by the use of a funding 
method which is an immediate gain type of funding method (and therefore 
separately amortizes rather than includes experience gains and losses as 
a part of the normal cost of the plan), a 10-year amortization base must 
be established in any plan year equal to the net experience gain or loss 
required under section 412 to be determined with respect to that plan 
year. The base is to be maintained in accordance with paragraph (h) of 
this section. Such a base must not be established if the deductible 
limit is determined by use of a funding method which is a spread gain 
type of funding method (under which experience gains and losses are 
spread over future periods as a part of the plan's normal cost). 
Examples of the immediate gain type of funding method are the unit 
credit method, entry age normal cost method, and the individual level 
premium cost method. Examples of the spread gain type of funding method 
are the aggregate cost method, frozen initial liability cost method, and 
the attained age normal cost method.
    (2) Change in actuarial assumptions. (i) If the creation of an 
amortization base is required under the rules of section 412(b) 
(2)(B)(v) or (3)(B)(iii) (as applied to the funding method used by the 
plan), a 10-year amortization base must be established at the time of a 
change in actuarial assumptions used to value plan liabilities. The 
amount of the base is the difference between the accrued liability 
calculated on the basis of the new assumptions and the accrued liability 
calculated on the basis of the old assumptions. Both computations of 
accrued liability are made as of the date of the change in assumptions.
    (ii) A plan using a funding method of the spread gain type does not 
directly determine an accrued liability. If a plan using such a method 
is required under section 412(b) (2)(B)(v) or (3)(B)(iii) to create an 
amortization base, it must establish a base as described in paragraph 
(g)(2)(i) of this section for a change in actuarial assumptions by 
determining an accrued liability on the basis of another funding method 
(of the immediate gain type) that does determine an accrued liability. 
(The aggregate method is an example of a funding method that is not 
required under section 412(b) (2)(B)(v) or (3)(B)(iii) to create an 
amortization base.) The funding method chosen to determine the accrued 
liability of the plan in these cases must be the same method used to 
establish all other 10-year amortization bases maintained by the plan, 
if any. These bases must be maintained in accordance with paragraph (h) 
of this section.
    (3) Past service or supplemental credits. A 10-year base must be 
established when a plan is established or amended, if the creation of an 
amortizable base

[[Page 391]]

is required under the rules of section 412(b)(2)(B) (ii) or (iii), or 
(b)(3)(B)(i) (as applied to the funding method used by the plan). The 
amount of the base is the accrued liability arising from, or the 
decrease in accrued liability resulting from, the establishment or 
amendment of the plan. The base must be maintained in accordance with 
paragraph (h) of this section.
    (4) Change in funding method. If a change in funding method results 
in an increase or decrease in an unfunded liability required to be 
amortized under section 412, a 10-year base must be established equal to 
the increase or decrease in unfunded liability resulting from the change 
in funding method. The base must be maintained in accordance with 
paragraph (h) of this section.
    (h) Maintenance of 10-year amortization base--(1) In general. Each 
time a 10-year amortization base is established, whether by a change in 
funding method, by plan amendment, by change in actuarial assumptions, 
or by experience gains and losses, the base must, except as provided in 
paragraph (i) of this section, be separately maintained in order to 
determine when the unamortized amount of the base is zero. The sum of 
the unamortized balances of all of the 10-year bases must equal the 
plan's unfunded liability with the adjustments described in paragraph 
(d) of this section, if applicable. When the unamortized amount of a 
base is zero, the deductible limit is no longer adjusted to reflect the 
amortization of the base.
    (2) First year's base. See either paragraph (g) or paragraph (i) of 
this section for rules applicable with respect to the first year of a 
base.
    (3) Succeeding year's base. For any plan year after the first year 
of a base, the unamortized amount of the base is equal to--
    (i) The unamortized amount of the base as of the valuation date in 
the prior plan year, plus
    (ii) Interest at the valuation rate from the valuation date in the 
prior plan year to the valuation date in the current plan year on the 
amount described in subdivision (i), minus
    (iii) The contribution described in paragraph (h)(4) of this section 
with respect to the base for the prior plan year.

The valuation date is the date as of which plan liabilities are valued 
under section 412(c)(9). If such a valuation is performed less often 
than annually for purposes of section 412, bases must be adjusted for 
purposes of section 404 each year as of the date on which a section 412 
valuation would be performed were it required on an annual basis. See 
paragraph (b)(3) of this section for the definition of valuation rate.
    (4) Contribution allocation with respect to each base. A portion of 
the total contribution for the prior plan year is allocated to each 
base. Generally, this portion equals the product of--
    (i) The total contribution described in paragraph (h)(6) of this 
section with respect to all bases, and
    (ii) The ratio of the amount described in paragraph (b)(3)(i) of 
this section with respect to the base to the sum (using true rather than 
absolute values) of such amounts with respect to all remaining bases.

However, if the result of this computation with respect to a particular 
base exceeds the amount necessary to amortize such base fully, the 
smaller amount shall be deemed the contribution made with respect to 
such base. The unallocated excess with respect to a now fully amortized 
base shall be allocated among the other bases as indicated above.
    (5) Other allocation methods. The Commissioner may authorize the use 
of methods other than the method described in paragraph (h)(4) of this 
section for allocating contributions to bases.
    (6) Total contribution for all bases. The contribution with respect 
to all bases for the prior plan year (see paragraph (h)(3)(iii) of this 
section) is the difference between--
    (i) The sum of (A) the total deduction (including a carryover 
deduction) for the prior year, (B) interest on the actual contributions 
for the prior year (whether or not deductible) at the valuation rate for 
the period between the dates as of which the contributions are credited 
under section 412 and the valuation date in the current plan year,

[[Page 392]]

and (C) interest on the carryover described in section 404(a)(1)(D) that 
is available at the beginning of the prior taxable year at the valuation 
rate for the period between the current and prior valuation dates, and
    (ii) The normal cost for the prior plan year and interest on it at 
the valuation rate from the date as of which the normal cost is 
calculated to the current valuation date.
    (7) Effect of failure to contribute normal cost plus interest on 
unamortized amounts. The failure to make a contribution at least equal 
to the sum of the normal cost plus interest on the unamortized amounts 
has the following effects under the preceding rules of this section--
    (i) It does not create a new base.
    (ii) It results in an increase in the unamortized amount of each 
base and consequently extends the time before the base is fully 
amortized.
    (iii) The limit adjustment for any base is not increased (in 
absolute terms) even if the unamortized amount computed under paragraph 
(h) of this section exceeds the initial 10-year amortization base. Thus, 
if the total unamortized amount of the plan's bases at the beginning of 
the plan year is $100,000 (which is also the unfunded liability of the 
plan), and a required $50,000 normal cost contribution is not made for 
the plan year, the following effects occur. The total unamortized 
balance of the plan's bases increases by the $50,000 normal cost for the 
year (adjusted for interest), plus interest on the $100,000 balance of 
the bases; and, because of that increase, it will take a longer period 
to amortize the remaining balance of the bases. (The annual amortization 
amount does not change.)
    (8) Required adjustment to a 10-year base limit adjustment if 
valuation rate changed. If there is a change in the valuation rate, the 
limit adjustment for all unamortized 10-year amortization bases must be 
changed, in addition to establishing a new base as provided in paragraph 
(g)(2) of this section. The new limit adjustment for any base is the 
level amount necessary to amortize the unamortized amount of the base 
over the remaining amortization period using the new valuation rate. The 
remaining amortization period of the base is the number of years at the 
end of which the unamortized amount of the base would be zero if the 
contribution made with respect to that base equaled the limit adjustment 
each year. This calculation of the remaining period is made on the basis 
of the valuation rate used before the change. Both the remaining 
amortization period and the revised limit adjustment may be determined 
through the use of standard annuity tables. The remaining period may be 
computed in terms of fractional years, or it may be rounded off to a 
full year. The unamortized amount of the base as of the valuation date 
and the remaining amortization period of that base shall not be changed 
by any change in the valuation rate.
    (i) Combining bases--(1) General method. For purposes of section 404 
only, and not for purposes of section 412, different 10-year 
amortization bases may be combined into a single 10-year amortization 
base if such single base satisfies all of the requirements of paragraph 
(i) (2), (3), and (4) of this section at the time of the combining of 
the different bases.
    (2) Unamortized amount. The unamortized amount of the single base 
equals the sum, as of the date the combination is made, of the 
unamortized amount of the bases being combined (treating negative bases 
as having negative unamortized amounts).
    (3) Remaining amortization period. The remaining amortization period 
of the single base is equal to (i) the sum of the separate products of 
(A) the unamortized amount of each of these bases (using absolute 
values) and (B) its remaining amortization period, divided by (ii) the 
sum of the unamortized amounts of each of the bases (using absolute 
values). For purposes of this paragraph (i)(3), the remaining 
amortization period of each base being combined is that number of years 
at the end of which the unamortized amount of the base would be zero if 
the contribution made with respect to that base equaled the limit 
adjustment of that base in each year. This number may be determined 
through the use of standard annuity tables. The remaining amortization 
period described in this paragraph may be computed in terms of 
fractional years,

[[Page 393]]

or it may be rounded off to a whole year.
    (4) Limit adjustment. The limit adjustment for the single base is 
the level amount necessary to amortize the unamortized amount of the 
combined base over the remaining amortization period described in 
paragraph (i)(3) of this section, using the valuation rate. This amount 
may be determined through the use of standard annuity tables.
    (5) Fresh start alternative. In lieu of combining different 10-year 
amortization bases, a plan may replace all existing bases with one new 
10-year amortization base equal to the unfunded liability of the plan as 
of the time the new base is being established. This unfunded liability 
must be determined in accordance with the general rules of paragraphs 
(d) and (f) of this section. The unamortized amount of the base and the 
limit adjustment for the base will be determined as though the base were 
newly established.
    (j) Initial 10-year amortization base for existing plan--(1) In 
general. In the case of a plan in existence before the effective date of 
section 404(a), the 10-year amortization base on the effective date of 
section 404(a) is the sum of all 10 percent bases existing immediately 
before section 404(a) became effective for the plan, determined under 
the rules of old section 404(a).
    (2) Limit adjustment. The limit adjustment for the initial base is 
the lesser of the unamortized amount of such base or the sum of the 
amounts determined under paragraph (b)(3) of this section using the 
original balances of the remaining bases (under old section 404(a) 
rules) as the amount to be amortized.
    (3) Unamortized amount. The employer may choose either to establish 
a single initial base reflecting both all prior 10-percent bases and the 
experience gain or loss for the immediately preceding actuarial period, 
or to establish a separate base for the prior 10-percent bases and 
another for the experience gain or loss for the immediately preceding 
period. If the initial 10-year amortization base reflects the net 
experience gain or loss from the immediately preceding actuarial period, 
the unamortized amount of the initial base shall equal the total 
unfunded liability on the effective date of section 404(a) determined in 
accordance with the general rules of paragraphs (d) and (f) of this 
section. If, however, a separate base will be used to reflect that gain 
or loss, the unamortized amount of the initial base shall equal such 
unfunded liability on the effective date of section 404(a), reduced by 
the net experience loss or increased by the net experience gain for the 
immediately preceding actuarial period. In this case, a separate 10-year 
amortization base must be established on the effective date equal to the 
net experience gain or loss. Thus, if the effective date unfunded 
liability is $100,000 and an experience loss of $15,000 is recognized on 
that date, and if the loss is to be treated as a separate base, the 
unamortized balances of the two bases would be $85,000 and $15,000. If 
the unfunded liability were the same $100,000, but a gain of $15,000 
instead of a loss were recognized on that date, the unamortized balances 
of the two bases would be $115,000 and a credit base of $15,000. In both 
cases, if only one 10-year base is to be established on the effective 
date, its unamortized balance would be $100,000 (the unfunded liability 
of the plan). See paragraphs (d) and (f) for rules for determining the 
unfunded liability of the plan.
    (k) Effect of full funding limit on 10-year-amortization bases. The 
amount deductible under section 404(a)(1)(A) (i), (ii), or (iii) for a 
plan year may not exceed the full funding limitation for that year. See 
section 412 and paragraphs (d), (e), and (f) of this section for rules 
to be used in the computation of the full funding limitation. If the 
total deductible contribution (including carryover) for a plan year 
equals or exceeds the full funding limitation for the year, all 10-year 
amortization bases maintained by the plan will be considered fully 
amortized, and the deductible limit for subsequent plan years will not 
be adjusted to reflect the amortization of these bases.
    (l) Transitional rules--(1) Plan years beginning before April 22, 
1981. In determining the deductible limit for plan years beginning 
before April 22, 1981, a contribution will be deductible under section 
404(a)(1)(A) if the computation of the deductible limit is based on an 
interpretation of section 404(a)(1)(A)

[[Page 394]]

that is reasonable when considered with prior published positions of the 
Internal Revenue Service. A computation of the deductible limit may 
satisfy the preceding sentence even if it does not satisfy the rules 
contained in paragraphs (c) through (i) of this section.
    (2) Transitional approaches. The deductible limit determined for the 
first plan year with respect to which a plan applies the rules contained 
in paragraphs (c) through (i) of this section must be computed using one 
of the following approaches--
    (i) The plan (whether or not in existence before the effective date 
of section 404(a)) may apply the rules of paragraph (j) for establishing 
the initial base for an existing plan, treating 10-year bases (if any) 
as 10 percent bases in adding bases.
    (ii) The plan may apply the fresh start alternative for combining 
bases under paragraph (i)(5).
    (iii) The plan may retroactively establish 10-year amortization 
bases for years with respect to which section 404(a)(1)(A) and the rules 
of this section would have applied but for the transition rule contained 
in paragraph (l)(1) of this section. Contributions actually deducted are 
used in retroactively establishing and maintaining these bases under 
paragraph (h). However, a deduction already taken shall not be 
recomputed because of the retroactive establishment of a base.
    (m) Effective date of section 404(a). In the case of a plan which 
was in existence on January 1, 1974, section 404(a) generally applies 
for contributions on account of taxable years of an employer ending with 
or within plan years beginning after December 31, 1974. In the case of a 
plan not in existence on January 1, 1974, section 404(a) generally 
applies for contributions on account of taxable years of an employer 
ending with or within plan years beginning after September 4, 1974. See 
Sec. 1.410(a)-2(c) for rules concerning the time of plan existence. See 
also Sec. 1.410(a)-2(d), which provides that a plan in existence on 
January 1, 1974, may elect to have certain provisions, including the 
amendments to section 404(a) contained in section 1013 of the Employee 
Retirement Income Security Act of 1974, apply to a plan year beginning 
after September 2, 1974, and before the otherwise applicable effective 
date contained in that section.

[T.D. 7760, 46 FR 6914, Jan. 22, 1981; 46 FR 15685, Mar. 9, 1981]



Sec. 1.404(b)-1   Method of contribution, etc., having the effect of a plan; effect of section 404(b).

    Section 404(a) is not confined to formal stock bonus, pension, 
profit- sharing, and annuity plans, or deferred compensation plans, but 
it includes any method of contributions or compensation having the 
effect of a stock bonus, pension, profit-sharing, or annuity plan, or 
similar plan deferring the receipt of compensation. Thus, where a 
corporation pays pensions to a retired employee or employees or to their 
beneficiaries in such amounts as may be determined from time to time by 
the board of directors or responsible officers of the company, or where 
a corporation is under an obligation, whether funded or unfunded, to pay 
a pension or other deferred compensation to an employee or his 
beneficiaries, there is a method having the effect of a plan deferring 
the receipt of compensation for which deductions are governed by section 
404(a). If an employer on the accrual basis defers paying any 
compensation to an employee until a later year or years under an 
arrangement having the effect of a stock bonus, pension, profit-sharing, 
or annuity plan, or similar plan deferring the receipt of compensation, 
he shall not be allowed a deduction until the year in which the 
compensation is paid. This provision is not intended to cover the case 
where an employer on the accrual basis defers payment of compensation 
after the year of accrual merely because of inability to pay such 
compensation in the year of accrual, as, for example, where the funds of 
the company are not sufficient to enable payment of the compensation 
without jeopardizing the solvency of the company, or where the liability 
accrues in the earlier year, but the amount payable cannot be exactly 
determined until the later year.

[T.D. 6500, 25 FR 11690, Nov. 26, 1960]

[[Page 395]]



Sec. 1.404(b)-1T  Method or arrangement of contributions, etc., deferring the receipt of compensation or providing for deferred benefits. (Temporary)

    Q-1: As amended by the Tax Reform Act of 1984, what does section 
404(b) of the Internal Revenue Code provide?
    A-1: As amended, section 404(b) clarifies that any plan, or method 
or arrangement, deferring the receipt of compensation or providing for 
deferred benefits (other than compensation) is to be treated as a plan 
deferring the receipt of compensation for purposes of section 404 (a) 
and (d). Accordingly, section 404 (a) and (d) (in the case of employees 
and nonemployees; respectively) shall govern the deduction of 
contributions paid or compensation paid or incurred with respect to such 
a plan, or method or arrangement. Section 404 (a) and (d) requires that 
such a contribution or compensation be paid or incurred for purposes of 
section 162 or 212 and satisfy the requirements for deductibility under 
either of those sections. Thus, for example, under section 404 (a)(5) 
and (b), if otherwise deductible under section 162 or 212, a 
contribution paid or incurred with respect to a nonqualified plan, or 
method or arragement, providing for deferred benefits is deductible in 
the taxable year of the employer in which or with which ends the taxable 
year of the employee in which the amount attributable to the 
contribution is includible in the gross income of the employee (without 
regard to any applicable exclusion under Chapter 1, Subtitle A, of the 
Internal Revenue Code). Section 404 (a) and (d) applies to all 
compensation and benefit plans, or methods or arrangements, however 
denominated, which defer the receipt of any amount of compensation or 
benefit, including fees or other payments. Thus, a limited partnership 
(using the accrual method of accounting) may not accrue deductions for a 
fee owed to an unrelated person (using the cash method of accounting ) 
who performs services for the partnership until the partnership taxable 
year in which or with which ends the taxable year of the service 
provider in which the fee is included in income. However, 
notwithstanding the above, section 404 does not apply to contributions 
paid or accrued with respect to a ``welfare benefit fund'' (as defined 
in section 419(e)) after July 18, 1984, in taxable years of employers 
(and payors) ending after that date. Also, section 463 shall govern the 
deduction of vacation pay by a taxpayer that has elected the application 
of such section. For rules relating to the deduction of contributions 
paid or accrued with respect to a welfare benefit fund, see section 419, 
Sec. 1.419-1T and Sec. 1.419A-2T. For rules relating to the deduction of 
vacation pay for which an election is made under section 463, see 
Sec. 301.9100-16T of this chapter and Sec. 1.463-1T.
    Q-2: When does a plan, or method or arrangement, defer the receipt 
of compensation or benefits for purposes of section 404 (a), (b), and 
(d)?
    A-2: (a) For purposes of section 404 (a), (b), and (d), a plan, or 
method or arrangement, defers the receipt of compensation or benefits to 
the extent it is one under which an employee receives compensation or 
benefits more than a brief period of time after the end of the 
employer's taxable year in which the services creating the right to such 
compensation or benefits are performed. The determination of whether a 
plan, or method or arrangement, defers the receipts of compensation or 
benefits is made separately with respect to each employee and each 
amount of compensation or benefit. Compensation or benefits received by 
an employee's spouse or dependent or any other person, but taxable to 
the employee, are treated as received by the employee for purposes of 
section 404. An employee is determined to receive compensation or 
benefits within or beyond a brief period of time after the end of the 
employer's taxable year under the rules provided in this Q&A. For the 
treatment of expenses with respect to transactions between related 
taxpayers, see section 267.
    (b)(1) A plan, or method or arrangement, shall be presumed to be one 
deferring the receipt of compensation for more than a brief period of 
time after the end of an employer's taxable year to the extent that 
compensation is received after the 15th day of the 3rd calendar month 
after the end of the employer's taxable year in which the related 
services are rendered (``the 2\1/2\

[[Page 396]]

month period''). Thus, for example, salary under an employment contract 
or a bonus under a year-end bonus declaration is presumed to be paid 
under a plan, or method or arrangement, deferring the receipt of 
compensation, to the extent that the salary or bonus is received beyond 
the applicable 2\1/2\ month period. Further, salary or a year-end bonus 
received beyond the applicable 2\1/2\ month period by one employee shall 
be presumed to constitute payment under a plan, or method or 
arrangement, deferring the receipt of compensation for such employee 
even though salary or bonus payments to all other employees are not 
similarly treated because they are received within the 2\1/2\ month 
period. Benefits are ``deferred benefits'' if, assuming the benefits 
were cash compensation, such benefits would be considered deferred 
compensation. Thus, a plan, or method or arrangement, shall be presumed 
to be one providing for deferred benefits to the extent benefits for 
services are received by an employee after the 2\1/2\ month period 
following the end of the employer's taxable year in which the related 
services are rendered.
    (2) The taxpayer may rebut the presumption established under the 
previous subparagraph with respect to an amount of compensation or 
benefits only by setting forth facts and circumstances the preponderance 
of which demonstrates that it was impracticable, either administratively 
or economically, to avoid the deferral of the receipt by an employee of 
the amount of compensation or benefits beyond the applicable 2\1/2\ 
month period and that, as of the end of the employer's taxable year such 
impracticability was unforeseeable. For example, the presumption may be 
rebutted with respect to an amount of compensation to the extent that 
receipt of such amount is deferred beyond the applicable 2\1/2\ month 
period (i) either because the funds of the employer were not sufficient 
to make the payment within the 2\1/2\ month period without jeopardizing 
the solvency of the employer or because it was not reasonably possible 
to determine within the 2\1/2\ month period whether payment of such 
amount was to be made, and (ii) the circumstance causing the deferral 
described in (i) was unforeseeable as of the close of the employer's 
taxable year. Thus, the presumption with respect to the receipt of an 
amount of compensation or benefit is not rebutted to the extent it was 
foreseeable, as of the end of the employer's taxable year, that the 
amount would be received after the applicable 2\1/2\ month period. For 
example, if, as of the end of the employer's taxable year, it is 
foreseeable that calculation of a year-end bonus to be paid to an 
employee under a given formula will not be completed and thus the bonus 
will not be received (and is in fact not received) by the end of the 
applicable 2\1/2\ month period, the presumption that the bonus is 
deferred compensation is not rebutted.
    (c) A plan, or method or arrangement, shall not be considered as 
deferring the receipt of compensation or benefits for more than a brief 
period of time after the end of the employer's taxable year to the 
extent that compensation or benefits are received by the employee on or 
before the end of the applicable 2\1/2\ month period. Thus, for example, 
salary under an employment contract or a bonus under a year-end bonus 
declaration is not considered paid under a plan, or method or 
arrangement, deferring the receipt of compensation to the extent that 
such salary or bonus is received by the employee on or before the end of 
the applicable 2\1/2\ month period.
    (d) Solely for purposes of applying the rules of paragraphs (b) and 
(c) of this Q&A, in the case of an employer's taxable year ending on or 
after July 18, 1984, and on or before March 21, 1986, compensation or 
benefits that relate to services rendered in such taxable year shall be 
deemed to have been received within the applicable 2\1/2\ month period 
if such receipt actually occurs after such 2\1/2\ month period but on or 
before March 21, 1986.
    Q-3: When does section 404(b), as amended by the Tax Reform Act of 
1984, become effective?
    A-3: With the exceptions discussed below, section 404(b), as 
amended, and the rules under Q&A-2 are effective with respect to amounts 
paid or incurred after July 18, 1984, in taxable years of employers (and 
payors) ending after that date. In the case of an extended vacation pay 
plan maintained

[[Page 397]]

pursuant to a collective bargaining agreement (a) between employee 
representatives and one or more employers, and (b) in effect on June 22, 
1984, section 404(b) is not effective before the date on which such 
collective bargaining agreement terminates (determined without regard to 
any extension thereof agreed to after June 22, 1984). For purposes of 
the preceding sentence, any plan amendment made pursuant to a collective 
bargaining agreement relating to the plan which amends the plan solely 
to conform to any requirement added under section 512 of the Tax Reform 
Act of 1984 shall not be treated as a termination of such collective 
bargaining agreement. For purposes of this section, an ``extended 
vacation pay plan'' is one under which covered employees gradually over 
a specified period of years earn the right to additional vacation 
benefits, no part of which, under the terms of the plan, can be taken 
until the end of the specified period.

[T.D. 8073, 51 FR 4321, Feb. 4, 1986; 51 FR 7262, Mar. 3, 1986; 51 FR 
11303, Apr. 2, 1986, as amended by T.D. 8435, 57 FR 43896, Sept. 23, 
1992]



Sec. 1.404(c)-1   Certain negotiated plans; effect of section 404(c).

    (a) Section 404(a) does not apply to deductions for contributions 
paid by an employer under a negotiated plan which meets the following 
conditions:
    (1) The contributions under the plan are held in trust for the 
purpose of paying, either from principal or income or both, for the 
benefit of employees and their families, at least medical or hospital 
care, and pensions on retirement or death of employees; and
    (2) Such plan was established before January 1, 1954, as a result of 
an agreement between employee representatives and the Government of the 
United States during a period of Government operation, under seizure 
powers, of a major part of the productive facilities of the industry in 
which such employer is engaged.

If these conditions are met, such contributions shall be deductible 
under section 162, to the extent that they constitute ordinary and 
necessary business expenses.
    (b) The term ``as a result of an agreement'' is intended primarily 
to cover a trust established under the terms of an agreement referred to 
in paragraph (a)(2) of this section. It will also include a trust 
established under a plan of an employer, or group of employers, who are 
in competition with the employers whose facilities were seized by reason 
of producing the same commodity, and who would therefore be expected to 
establish such a trust as a reasonable measure to maintain a sound 
position in the labor market producing the commodity. Thus, for example, 
if a trust was established under such an agreement in the bituminous 
coal industry, a similar trust established about the same time in the 
anthracite coal industry would be covered by this provision.
    (c) If any such trust becomes qualified for exemption under section 
501(a), the deductibility of contributions by an employer to such trust 
on or after the date of such qualification would no longer be governed 
by section 404(c), even though the trust may later lose its exemption 
under section 501(a).

[T.D. 6500, 25 FR 11690, Nov. 26, 1960]



Sec. 1.404(d)-1T  Questions and answers relating to deductibility of deferred compensation and deferred benefits for independent contractors. (Temporary)

    Q-1: How does the amendment of section 404(b) by the Tax Reform Act 
of 1984 affect the deduction of contributions or compensation under 
section 404(d)?
    A-1: As amended by the Tax Reform Act of 1984, section 404(b) 
clarifies that section 404(d) shall govern the deduction of 
contributions paid and compensation paid or incurred by a payor under a 
plan, or method or arrangement, deferring the receipt of compensation or 
providing for deferred benefits for service providers with respect to 
which there is no employer-employee relationship. In such a case, 
section 404 (a) and (b) and the regulations thereunder apply as if the 
person providing the services were the employee and the person to whom 
the services are provided were the employer. Section 404(a) requires 
that such a contribution or compensation be paid or

[[Page 398]]

incurred for purposes of section 162 or 212 and satisfy the requirements 
for deductibility under either of those sections. However, 
notwithstanding the above, section 404 does not apply to contributions 
paid or accrued with respect to a ``welfare benefit fund'' (as defined 
in section 419(e)) after June 18, 1984, in taxable years of employers 
(and payors) ending after that date. Also, section 463 shall govern the 
deduction of vacation pay by a taxpayer that has elected under such 
section. For rules relating to the deduction of contributions paid or 
accrued with respect to a welfare benefit fund, see section 419, 
Sec. 1.419-1T and Sec. 1.419A-2T. For rules relating to the deduction of 
vacation pay for which an election is made under section 463, see 
Sec. 301.9100-16T of this chapter and Sec. 1.463-1T.

[T.D. 8073, 51 FR 4322, Feb. 4, 1986, as amended by T.D. 8435, 57 FR 
43896, Sept. 23, 1992]




sec. 1.404(e)-1   Contributions on behalf of a self-employed individual to or under a pension, annuity, or profit-sharing plan meeting the requirements of 
          section 401; application of section 404(a) (8), (9), and (10) 
          and section 404 (e) and (f).

    (a) In general. (1) The Self-Employed Individuals Tax Retirement Act 
of 1962 (76 Stat. 809) permits certain self-employed individuals to be 
treated as employees for purposes of pension, annuity, and profit-
sharing plans included in paragraph (1), (2), or (3) of section 404(a). 
Therefore, for taxable years of an employer beginning after December 31, 
1962, employer contributions to qualified plans on behalf of self-
employed individuals are deductible under section 404 subject to the 
limitations of paragraphs (b) and (c) of this section.
    (2) In the case of contributions to qualified plans on behalf of 
self-employed individuals, the amount deductible differs from the amount 
allowed as a deduction. In general, the amount deductible is 10 percent 
of the earned income derived by the self-employed individual from the 
trade or business with respect to which the plan is established, or 
$2,500, whichever is the lesser. This is the amount referred to in 
section 401 when reference is made to the amounts which may be deducted 
under section 404 or the amount of contributions deductible under 
section 404. Thus, this is the amount taken into consideration in 
determining whether contributions under the plan are discriminatory. The 
amount allowed as a deduction with respect to contributions on behalf of 
a self-employed individual is one-half of the amount deductible. The 
amount allowed as a deduction is relevant only for purposes of 
determining the amount an employer may deduct from gross income.
    (b) Determination of the amount deductible. (1) If a plan covers 
employees, some of whom are self-employed individuals, the determination 
of the amount deductible is made on the basis of independent 
consideration of the common-law employees and of the self-employed 
individuals. See subparagraphs (2) and (3) of this paragraph. For 
purposes of determining the amount deductible with respect to 
contributions on behalf of a self-employed individual, such 
contributions shall be considered to satisfy the conditions of section 
162 (relating to trade or business expenses) or 212 (relating to 
expenses for the production of income), but only to the extent that such 
contributions do not exceed the earned income of such individual derived 
from the trade or business with respect to which the plan is 
established. However, the portion of such contribution, if any, 
attributable to the purchase of life, accident, health, or other 
insurance protection shall be considered payment of a personal expense 
which does not satisfy the requirements of section 162 or 212. See 
paragraph (f) of this section. For the additional rules applicable where 
contributions are made by more than one employer on behalf of a self-
employed individual, see paragraph (d) of this section.
    (2) If contributions are made to a plan included in section 404(a) 
(1), (2), or (3) on behalf of employees, some of whom are self-employed 
individuals, the amount deductible with respect to contributions on 
behalf of the common-law employees covered under the plan shall be 
determined as if such employees were the only employees for whom 
contributions and benefits are provided under the plan. Accordingly, for 
purposes of such determination, the percentage of compensation 
limitations of

[[Page 399]]

section 404(a) (1), (3), and (7) are applicable only with respect to the 
compensation otherwise paid or accrued during the taxable year by the 
employer to the common-law employees. Similarly, the costs referred to 
in section 404(a)(1) (B) and (C) shall be the costs of funding the 
benefits of the common-law employees. Also, the provisions of section 
404(a)(1)(D), (3), and (7), relating to certain carryover deductions, 
shall be applicable only to amounts contributed, or to the amounts 
deductible, on behalf of such employees.
    (3) If contributions are made to a plan included in section 404(a) 
(1), (2), or (3) on behalf of individuals some or all of whom are self-
employed individuals, the amount deductible in any taxable year with 
respect to contributions on behalf of such individuals shall be 
determined as follows:
    (i) The provisions of section 404(a) (1), (2), (3), and (7) shall be 
applied as if such individuals were the only participants for whom 
contributions and benefits are provided under the plan. Thus, the costs 
referred to in such provisions shall be the costs of funding the 
benefits of the self-employed individuals. If such costs are less than 
an amount equal to the amount determined under subdivision (iii) of this 
subparagraph, the maximum amount deductible with respect to such 
individuals shall be the costs of their benefits.
    (ii) The provisions of section 404(a)(1)(D), the second and third 
sentences of section 404(a)(3)(A), and the second sentence of section 
404(a)(7), relating to certain carryover deductions, are not applicable 
to contributions on behalf of self-employed individuals. Contributions 
on behalf of self-employed individuals are deductible, if at all, only 
in the taxable year in which the contribution is paid or deemed paid 
under section 404(a)(6).
    (iii) The amount deductible for the taxable year of the employer 
with respect to contributions on behalf of a self-employed individual 
shall not exceed the lesser of $2,500 or 10 percent of the earned income 
derived by such individual for such taxable year from the trade or 
business with respect to which the plan is established.
    (iv) If a self-employed individual receives in any taxable year 
earned income with respect to which deductions are allowable to two or 
more employers, the aggregate amounts deductible shall not exceed the 
lesser of $2,500 or 10 percent of such earned income. See paragraph (d) 
of this section.
    (c) Special limitation on the amount allowed as a deduction for 
self-employed individuals. The amount allowed as a deduction under 
section 404(a) (1), (2), (3), and (7) in any taxable year with respect 
to contributions made on behalf of a self-employed individual shall be 
an amount equal to one-half of the amount deductible with respect to 
such contributions under paragraph (b)(3) of this section. However, for 
purposes of section 401, the amount which may be deducted, or the amount 
deductible, under section 404 with respect to contributions made on 
behalf of self-employed individuals shall be determined without regard 
to the special limitation of this paragraph.
    (d) Rules applicable where contributions are made by more than one 
employer on behalf of a self-employed individual. (1) Under paragraph 
(b)(3)(iv) of this section, if a self-employed individual receives in 
any taxable year earned income with respect to which deductions are 
allowable to two or more employers, the aggregate amounts deductible 
shall not exceed the lesser of $2,500 or 10 percent of such earned 
income. This limitation does not apply to contributions made under a 
plan on behalf of an employee who is not self-employed in the trade or 
business with respect to which the plan is established, even though such 
employee may be covered as a self-employed individual under a plan or 
plans established by other trades or businesses.
    (2) In any case in which the application of subparagraph (1) of this 
paragraph reduces the amount otherwise deductible, the amount deductible 
by each employer shall be that amount which bears the same ratio to the 
aggregate amount deductible with respect to all trades or businesses (as 
determined in subparagraph (1) of this paragraph) as the earned income 
derived from that employer bears to the aggregate of the earned income 
derived from all of the trades or businesses

[[Page 400]]

with respect to which plans are established. The amount allowed as a 
deduction to each employer is one-half of the amount determined (in 
accordance with the preceding sentence) to be deductible by such 
employer.
    (e) Partner's distributive share of contributions and deductions. 
For purposes of sections 702(a)(8) and 704, a partner's distributive 
share of contributions on behalf of self-employed individuals under a 
qualified pension, annuity, or profit-sharing plan is the contribution 
made on his behalf, and his distributive share of deductions allowed the 
partnership under section 404 for contributions on behalf of self-
employed individuals is that portion of the deduction which is 
attributable to contributions made on his behalf under the plan. The 
contribution on behalf of a partner and the deduction with respect 
thereto must be accounted for separately by such partner, for his 
taxable year with or within which the partnership's taxable year ends, 
as an item described in section 702(a)(8).
    (f) Contributions allocable to insurance protection. For purposes of 
determining the amount deductible with respect to contributions on 
behalf of a self-employed individual, amounts allocable to the purchase 
of life, accident, health, or other insurance protection shall not be 
taken into account. Such amounts are neither deductible nor considered 
as contributions for purposes of determining the maximum amount of 
contributions that may be made on behalf of an owner-employee. The 
amount of a contribution allocable to insurance shall be an amount equal 
to a reasonable net premium cost, as determined by the Commissioner, for 
such amount of insurance for the appropriate period. See paragraph 
(b)(5) of Sec. 1.72-16.
    (g) Rules applicable to loans. For purposes of section 404, any 
amount paid, directly or indirectly, by an owner-employee in repayment 
of any loan which under section 72(m)(4)(B) was treated as an amount 
received from a qualified trust or plan shall be treated as a 
contribution to such trust or under such plan on behalf of such owner-
employee.
    (h) Definitions. For purposes of section 404 and the regulations 
thereunder--
    (1) The term ``employee'' includes an employee as defined in section 
401(c)(1) and paragraph (b) of Sec. 1.401-10, and the term ``employer'' 
means the person treated as the employer of such individual under 
section 401(c)(4);
    (2) The term ``owner-employee'' means an owner-employee as defined 
in section 401(c)(3) and paragraph (d) of Sec. 1.401-10;
    (3) The term ``earned income'' means earned income as defined in 
section 401(c)(2) and paragraph (c) of Sec. 1.401-10; and
    (4) The term ``compensation'' when used with respect to an 
individual who is an employee described in subparagraph (1) of this 
paragraph shall be considered to be a reference to the earned income of 
such individual derived from the trade or business with respect to which 
the plan is established.
    (i) Years to which this section applies. This section applies to 
taxable years of employers beginning before January 1, 1974. For taxable 
years beginning after December 31, 1973, see Sec. 1.404(e)-1A.

[T.D. 6673, 28 FR 10145, Sept. 17, 1963; as amended by T.D. 7636, 44 FR 
47056, Aug. 10, 1979]




Sec. 1.404(e)-1A  Contributions on behalf of a self-employed individual to or under a qualified pension, annuity, or profit-sharing plan.

    (a) In general. This section provides rules relating to employer 
contributions to qualified plans on behalf of self-employed individuals 
described in subsections (a) (8) and (9), (e), and (f) of section 404. 
Unless otherwise specifically provided, this section applies to taxable 
years of an employer beginning after December 31, 1973. See section 
1.404(e)-1 for rules relating to plans for self-employed individuals for 
taxable years beginning before January 1, 1974. Paragraph (b) of this 
section provides general rules of deductibility, paragraph (c) provides 
rules relating to defined contribution plans, paragraph (d) provides 
rules relating to defined benefit plans, paragraph (e) provides rules 
relating to combinations of plans, paragraph (f) provides rules for 
partnerships, paragraph (g) provides rules for insurance, paragraph (h) 
provides

[[Page 401]]

rules for loans, and paragraph (i) provides definitions.
    (b) Determination of the amount deductible. (1) If a defined 
contribution plan covers employees, some of whom are self-employed 
individuals, the determination of the amount deductible is made on the 
basis of independent consideration of the common-law employees and of 
the self-employed individuals. See subparagraphs (2) and (3) of this 
paragraph. For purposes of determining the amount deductible with 
respect to contributions on behalf of a self-employed individual, such 
contributions shall be considered to satisfy the conditions of section 
162 (relating to trade or business expenses) or 212 (relating to 
expenses for the production of income), but only to the extent that such 
contributions do not exceed the earned income of such individual derived 
from the trade or business with respect to which the plan is 
established. However, the portion of such contribution, if any, 
attributable to the purchase of life, accident, health, or other 
insurance protection shall be considered payment of a personal expense 
which does not satisfy the requirements of section 162 or 212. See 
paragraph (g) of this section.
    (2)(i) If contributions are made on behalf of employees, some of 
whom are self-employed individuals, to a defined contribution plan 
described in section 414(i) and included in section 404(a) (1), (2), or 
(3), the amount deductible with respect to contributions on behalf of 
the common-law employees covered under the plan shall be determined as 
if such employees were the only employees for whom contributions and 
benefits are provided under the plan. Accordingly, for purposes of such 
determination, the percentage of compensation limitations of section 
404(a) (3) and (7) are applicable only with respect to the compensation 
otherwise paid or accrued during the taxable year by the employer with 
respect to the common-law employees. Similarly, the costs referred to in 
section 404(a)(1) (A) and (B) shall be the costs of funding the benefits 
of the common-law employees. Also, the provisions of section 
404(a)(1)(D), (3), and (7), relating to certain carryover deductions, 
shall be applicable only to amounts contributed or to the amounts 
deductible on behalf of such employees.
    (ii) The amount deductible, by reason of contributions on behalf of 
employees to a defined benefit plan, shall be determined without regard 
to the self-employed or common law status of each employee.
    (3)(i) If contributions are made on behalf of individuals, some or 
all of whom are self-employed individuals, to a defined contribution 
plan described in section 414(i) and included in section 404(a) (1), 
(2), or (3), the amount deductible in any taxable year with respect to 
contributions on behalf of such individuals shall be determined as 
follows:
    (A) The provisions of section 404(a) (1), (2), (3), and (7) shall be 
applied as if such individuals were the only participants for whom 
contributions and benefits are provided under the plan. Thus, the costs 
referred to in such provisions shall be the costs of funding the 
benefits of the self-employed individuals. If such costs are less than 
an amount equal to the amount determined under paragraph (c) of this 
section, the maximum amount deductible with respect to such individuals 
shall be the cost of their benefits.
    (B) The provisions of section 404(a) (1), (D), the third sentence of 
section 404(a) (3), (A), and the second sentence of section 404(a)(7), 
relating to certain carryover deductions are applicable to contributions 
on behalf of self-employed individuals made in taxable years of an 
employer beginning after December 31, 1975.
    (C) For any employer taxable year in applying the 15 percent limit 
on deductible contributions set forth section in 404(a)(3) and the 25 
percent limit in section 404(a)(7) for any taxable year of the employer, 
the amount deductible under section 404(e)(4) and paragraph (c)(4) of 
this section (relating to the minimum deduction of $750 or 100 percent 
of earned income) shall be substituted for such limits with respect to 
the self-employed individuals on whose behalf contributions are 
deductible under section 404(e)(4) for the taxable year of the employer. 
In addition, although the limitations of section 415 are applicable to 
the plan for plan years beginning after December 31,

[[Page 402]]

1975, the defined contribution compensation limitation described in 
section 415(c)(1)(B) shall not be less than the amount deductible under 
section 404(e)(4) and paragraph (c)(4) of this section with respect to 
any self-employed individual for the taxable year of the employer wnding 
with or within the limitation year. The special rule in the second 
sentence of paragraph (3)(A) of section 404(a) is not applicable in 
determining the amounts deductible on behalf of self-employed 
individuals.
    (ii) The limitations of this subparagraph are not applicable to a 
defined benefit plan for self-employed individuals.
    (c) Defined contribution plans. (1) Under section 404(e)(1) in the 
case of a defined contribution plan, as defined in section 414(i), the 
amount deductible for the taxable year of the employer with respect to 
contributions on behalf of a self-employed individual shall not exceed 
the lesser of $7,500 or 15 percent of the earned income derived by such 
individual for such taxable year from the trade or business with respect 
to which the plan is established.
    (2) Under section 404(e)(2)(A) if a self-employed individual 
receives in any taxable year earned income with respect to which 
deductions are allowable to two or more employers under two or more 
defined contribution plans the aggregate amounts deductible shall not 
exceed the lesser of $7,500 or 15 percent of such earned income. This 
limitation does not apply to contributions made under a plan on behalf 
of an employee who is not self-employed in the trade or business with 
respect to which the plan is established.
    (3) Under section 404(e)(2)(B) in any case in which the applicable 
limitation of subparagraph (2) of this paragraph reduces the amount 
otherwise deductible with respect to contributions on behalf of any 
employee within the meaning of section 401(c)(1), the amount deductible 
by each employer for such employee shall be that amount which bears the 
same ratio to the aggregate amount deductible for such employee with 
respect to all trades or businesses (as determined in subparagraph (1) 
of this paragraph) as his earned income derived from the employer bears 
to the aggregate of his earned income derived from all of the trades or 
businesses with respect to which plans are established.
    Under section 404(e)(4), notwithstanding the provisions of 
subparagraphs (1) and (2) of this paragraph, the limitations on the 
amount deductible for the taxable year of the employer with respect to 
contributions on behalf of a self-employed individual shall not be less 
than the lesser of $750 or 100 percent of the earned income derived by 
such individual for such taxable year from the trade or business with 
respect to which the plan is established. If such individual receives in 
any taxable year earned income with respect to which deductions are 
allowable to two or more employers, 100 percent of such earned income 
shall be taken into account for purposes of the limitations determined 
under this subparagraph. This subparagraph does not apply to any taxable 
year beginning after December 31, 1975, to any employee whose adjusted 
gross income for that taxable year is greater than $15,000. In applying 
the preceding sentence, the adjusted gross income of an employee for a 
taxable year is determined separately for each individual, without 
regard to any community property laws, and without regard to the 
deduction allowable under section 404(a).
    (d) Defined benefit plans. In the case of a defined benefit plan, as 
defined in section 401(j), the special limitations provided by section 
404(e) and paragraph (c) of this section do not apply. See section 
401(j) for requirements applicable to defined benefit plans.
    (e) Combination of plans. For special rules applied if a self-
employed individual in any taxable year is a paraticipant in both a 
defined benefit plan and a defined contribution plan, see section 401(j) 
and the regulations thereunder.
    (f) Partner's distributive share of contributions and deductions. 
(1) For purposes of sections 702(a)(8) and 704 in the case of a defined 
contribution plan, a partner's distributive share of contributions on 
behalf of self-employed individuals under such a plan is the 
contribution made on his behalf, and his distributive share of 
deductions allowed the partnership under section 404 for contributions 
on behalf of a self-

[[Page 403]]

employed individual is that portion of the deduction which is 
attributable to contributions made on his behalf under the plan. The 
contribution on behalf of a partner and the deduction with respect 
thereto must be accounted for separately by such partner, for his 
taxable year with or within which the partnership's taxable year ends, 
as an item described in section 702(a)(8).
    (2) In the case of a defined benefit plan, a partner's distributive 
share of contributions on behalf of self-employed individuals and his 
distributive share of deductions allowed the partnership under section 
404 for such contributions is determined in the same manner as his 
distributive share of partnership taxable income. See section 704, 
relating to the determination of the distributive share and the 
regulations thereunder.
    (g) Contributions allocable to insurance protection. Under Section 
404(e)(3), for purposes of determining the amount deductible with 
respect to contributions on behalf of a self-employed individual, 
amounts allocable to the purchase of life, accident, health, or other 
insurance protection shall not be taken into account. Such amounts are 
neither deductible nor considered as contributions for purposes of 
determining the maximum amount of contributions that may be made on 
behalf of an owner-employee. The amount of a contribution allocable to 
insurance shall be an amount equal to a reasonable net premium cost, as 
determined by the Commissioner, for such amount of insurance for the 
appropriate period. See paragraph (b)(5) of Sec. 1.72-16.
    (h) Rules applicable to loans. Under section 404(f), for purposes of 
section 404, any amount paid, directly or indirectly, by an owner-
employee in repayment of any loan which under section 72(m)(4)(B) was 
treated as an amount recieved from a qualified trust or plan shall be 
treated as a contribution to such trust or under such plan on behalf of 
such owner-employee.
    (i) Definitions. Under section 404(a)(8), for purposes of section 
404 and the regulations thereunder--
    (1) The term ``employee'' includes an employee as defined in section 
401(c)(1) and the term ``employer'' means the person treated as the 
employer of such individual under section 401(c)(4);
    (2) The term ``owner-employee'' means an owner-employee as defined 
in section 401(c)(3);
    (3) The term ``earned income'' means earned income as defined in 
section 401(c)(2); and
    (4) The term ``compensation'' when used with respect to an 
individual who is an employee described in subparagraph (1) of this 
paragraph shall be considered to be a reference to the earned income of 
such individual derived from the trade or business with respect to which 
the plan is established.

[T.D. 7636, 44 FR 47056, Aug. 10, 1979]




Sec. 1.404(g)-1  Deduction of employer liability payments.

    (a) General rule. Employer liability payments shall be treated as 
contributions to a stock bonus, pension, profit-sharing, or annuity plan 
to which section 404 applies. Such payments that satisfy the limitations 
of this section shall be deductible under section 404 when paid without 
regard to any other limitations in section 404.
    (b) Employer liability payments. For purposes of this section, 
employer liability payments mean:
    (1) Any payment to the Pension Benefit Guaranty Corporation (PBGC) 
for termination or withdrawal liability imposed under section 4062 
(without regard to section 4062(b)(2)), 4063, or 4064 of the Employee 
Retirement Insurance Security Act of 1974 (ERISA). Any bond or escrow 
payment furnished under section 4063 of ERISA shall not be considered as 
a payment of liability until applied against the liability of the 
employer.
    (2) Any payment to a non-multiemployer plan pursuant to a commitment 
to the PBGC made in accordance with PBGC Determination of Plan 
Sufficiency and Termination of Sufficient Plans. See PBGC regulations, 
29 CFR 2617.13(b) for rules concerning these commitments. Such payments 
shall not exceed an amount necessary to provide for, and used to fund, 
the benefits guaranteed under section 4022 of ERISA.
    (3) Any payment to a multiemployer plan for withdrawal liability 
imposed

[[Page 404]]

under part 1 of subtitle E of title IV of ERISA. Any bond or escrow 
payment furnished under such part shall not be considered as a payment 
of liability until applied against the liability of the employer.
    (c) Limitations, etc.--(1) Permissible expenses. A payment shall be 
deductible under section 404(g) and this section only if the payment 
satisfies the conditions of section 162 or section 212. Payments made by 
an entity which is liable for such payments because it is a member of a 
commonly controlled group of corporations, or trades or businesses, 
within the meaning of section 414 (b) or (c), shall not fail to satisfy 
such conditions merely because the entity did not directly employ 
participants in the plan with respect to which the liability payments 
were made.
    (2) Qualified plan. A payment shall be deductible under section 
404(g) and this section only if the payment is made in a taxable year of 
the employer ending within or with a taxable year of the trust for which 
the trust is exempt under section 501(a). For purposes of this 
paragraph, the payment timing rules of section 404(a)(6) shall apply.
    (3) Full funding limitation. (i) If the employer liability payment 
is to a plan, the total amount deductible for such payment and for other 
plan contributions may not exceed an amount equal to the full funding 
limitation as defined in section 412(c)(7) for the taxable year with 
respect to which the contributions are deemed made under section 404.
    (ii) If the total contributions to the plan for the taxable year 
including the employer liability payment exceed the amount equal to this 
full funding limitation, the employer liability payment shall be 
deductible first.
    (iii) Any amount paid in a taxable year in excess of the amount 
deductible in such year under the full funding limitation shall be 
treated as a liability payment and be deductible in the succeeding 
taxable years in order of time to the extent of the difference between 
the employer liability payments made in each succeeding year and the 
maximum amount deductible for such year under the full funding 
limitation.
    (4) Maximum deduction allowable under section 404. The amount 
deductible under section 404 is limited to the higher of the maximum 
amount deductible by the employer under section 404(a) or the amount 
otherwise deductible under section 404(g). If the contributions are to a 
plan to which more than one employer contributes, this limit shall apply 
to each employer separately rather than all employers in the aggregate. 
Thus, each employer may deduct the greater of its allocable share of the 
deduction determined under sections 404(a) and 413(b)(7) or 413(c)(6) or 
its allocable share of the amount deductible under section 404(g). 
However, pursuant to the rule in subdivision (ii) of subparagraph (3), 
in determining each employer's allocable share under section 404(a), the 
total amount deductible under section 404(a) by all employers shall not 
exceed the difference between the full funding limitation and the total 
amount deductible by all employers under section 404(g).
    (5) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. In the 1983 taxable year, Employer A makes a withdrawal 
liability payment of $700,000 to multiemployer Plan X to which Employer 
A and Employer B are required to contribute. Employer A's allocable 
share of the deduction allowable under sections 404(a) and 413(b)(7) in 
the 1983 taxable year is $600,000. Employer B's allocable share of the 
deduction allowable under section 404(a) and 413(b)(7) in the 1983 
taxable year is $400,000.
    The full funding limitation for the 1983 taxable year is $1,000,000. 
Based on paragraph (c)(4) of this section, Employer A may deduct 
$700,000, the amount of the withdrawal liability payment. However, the 
deduction of Employer B is limited to $300,000, the difference between 
the full funding limitation and the amount deductible under section 
404(g).

    (d) Effective date etc.--(1) General rule. This section is effective 
for employer payments made after September 25, 1980.
    (2) Transitional rule. For employer payments made before September 
26, 1980, for purposes of section 404, any amount paid by an employer 
under section 4062, 4063, or 4064 of the Employee Retirement Income 
Security Act of 1974 shall be treated as a contribution to which section 
404 applies by such

[[Page 405]]

employer to or under a stock bonus, pension, profit-sharing, or annuity 
plan.

[T.D. 8085, 51 FR 16297, May 2, 1986]




Sec. 1.404(k)-1T  Questions and answers relating to the deductibility of certain dividend distributions. (Temporary)

    Q-1: What does section 404(k) provide?
    A-1: Section 404(k) allows a corporation a deduction for dividends 
actually paid in accordance with section 404(k)(2) with respect to stock 
of such corporation held by an employee stock ownership plan (as defined 
in section 4975(e)(7)) maintained by the corporation (or by any other 
corporation that is a member of a ``controlled group of corporations'' 
within the meaning of section 409(l)(4) that includes the corporation), 
but only if such dividends may be immediately distributed under the 
terms of the plan and all of the applicable qualification and 
distribution rules. The deduction is allowed under section 404(k) for 
the taxable year of the corporation during which the dividends are 
received by the participants.
    Q-2: Is the deductibility of dividends paid to plan participants 
under section 404(k) affected by a plan provision which permits 
participants to elect to receive or not receive payment of dividends?
    A-2: No. Dividends actually paid in cash to plan participants in 
accordance with section 404(k) are deductible under section 404(k) 
despite such an election provision.
    Q-3: Are dividends paid in cash directly to plan participants by the 
corporation and dividends paid to the plan and then distributed in cash 
to plan participants under section 404(k) treated as distributions under 
the plan holding stock to which the dividends relate for purposes of 
sections 72, 401 and 402?
    A-3: Generally, yes. However, a deductible dividend under section 
404(k) is treated for purposes of section 72 as paid under a contract 
separate from any other contract that is part of the plan. Thus, a 
deductible dividend is treated as a plan distribution and as paid under 
a separate contract providing only for payment of deductible dividends. 
Therefore, a deductible dividend under section 404(k) is a taxable plan 
distribution even though an employee has unrecovered employee 
contributions or basis in the plan.

[T.D. 8073, 51 FR 4322, Feb. 4, 1986]




Sec. 1.405-1   Qualified bond purchase plans.

    (a) Introduction. Section 405 relates to the requirements for 
qualification of, and the tax treatment of funds contributed to, 
retirement plans of an employer for the benefit of his employees which 
are funded through the purchase of United States retirement plan bonds. 
Such bonds may be purchased under a qualified bond purchase plan 
described in section 405(a) and paragraph (b) of this section. The 
qualified bond purchase plan is an alternative method of providing some 
of the deferred compensation benefits provided by plans described in 
section 401. In addition, retirement bonds may be purchased under a 
qualified pension or profit-sharing plan described in section 401. A 
qualified bond purchase plan or a qualified pension or profit-sharing 
plan under which retirement bonds are purchased may cover only common-
law employees, self-employed individuals, or both. A qualified bond 
purchase plan may be established after December 31, 1962, and retirement 
bonds may be purchased by a qualified pension or profit-sharing plan 
after December 31, 1962. For the terms and conditions of the retirement 
bonds, see section 405(b) and Treasury Department Circular, Public Debt 
Series--No. 1-63.
    (b) Qualified bond purchase plans. (1) A qualified bond purchase 
plan is a definite written program and arrangement which is communicated 
to the employees and established and maintained by an employer solely to 
purchase for and distribute to his employees or their beneficiaries 
retirement bonds. These bonds must be purchased in the name of the 
employee on whose behalf the contributions are made. The plan must be a 
permanent plan which meets the requirements of section 401(a) (3), (4), 
(5), (6), (7), (8), (16), and (19), and, if applicable, the requirements 
of section 401(a) (9) and (10) and of section 401(d) (other than 
paragraphs (1), (5)(B), (8), (16), and (19)). The rules set forth in the 
regulations relating to

[[Page 406]]

those provisions shall be applicable to qualified bond purchase plans.
    (2) A qualified bond purchase plan must provide that an employee's 
right to the proceeds of a bond purchased in his name are nonforfeitable 
and will in no event inure to the benefit of the employer or be 
reallocated in any manner.
    (c) Benefits under a qualified bond purchase plan. (1) Except as 
provided in subparagraph (2) of this paragraph, a qualified bond 
purchase plan must conform to the definition of a pension plan in 
paragraph (b)(1)(i) of Sec. 1.401-1, or the definition of a profit-
sharing plan in paragraph (b)(1)(ii) of Sec. 1.401-1. For example, if 
the qualified bond purchase plan is a profit-sharing plan, the plan must 
include the definite allocation formula described in paragraph 
(b)(1)(ii) of Sec. 1.401-1. In addition, if such a profit-sharing plan 
covers any owner-employee, the plan must also include the definite 
contribution formula described in section 401(d)(2)(B).
    (2)(i) Under a qualified bond purchase plan, the bonds may be 
distributed to the employees at any time, and the plan need not prohibit 
the distribution or redemption of the bonds until the retirement of the 
employee. Accordingly, even though a qualified bond purchase plan is 
designed as a pension plan, it need not provide systematically for the 
payment of definitely determinable benefits. However, provisions for 
distribution must apply in a nondiscriminatory manner.
    (ii) A qualified bond purchase plan which is designed as a pension 
plan may not contain a formula for contributions or benefits which might 
require the reallocation of amounts to an employee's credit or which 
might provide for the reversion of any amounts to the employer.
    (d) Contributions under a qualified bond purchase plan. (1) The 
retirement bonds will be issued in the denominations of $50, $100, $500, 
and $1,000. Therefore, the contribution otherwise called for under the 
plan may not coincide with an amount that can be invested in retirement 
bonds. Accordingly, the plan must provide that the contributions on 
behalf of an individual employee for any year shall be rounded to the 
nearest multiple of $50.
    (2) Since the employee's rights to any bonds purchased for him under 
a qualified bond purchase plan must be nonforfeitable, a qualified bond 
purchase plan must, in order to conform to the requirements of section 
401(a)(4) with respect to the early termination of the plan, restrict 
the contributions on behalf of any employee to the amount which could be 
allocated to him under paragraph (c) of Sec. 1.401-4.
    (e) Definitions. For purposes of this section and Secs. 1.405-2 and 
1.405-3--
    (1) The term ``employee'' includes an employee as defined in section 
401(c)(1) and paragraph (b) of Sec. 1.401-10, and the term ``employer'' 
means the person treated as the employer of such individual under 
section 401(c)(4);
    (2) The term ``owner-employee'' means an owner-employee as defined 
in section 401(c)(3) and paragraph (d) of Sec. 1.401-10;
    (3) The term ``earned income'' means earned income as defined in 
section 401(c)(2) and paragraph (c) of Sec. 1.401-10; and
    (4) The term ``retirement bond'' means a United States Retirement 
Plan Bond, as described in section 405(b) and Treasury Department 
Circular, Public Debt Series--No. 1-63.

[T.D. 6675, 28 FR 10131, Sept. 17, 1963, as amended by T.D. 7748, 46 FR 
1697, Jan. 7, 1981]




Sec. 1.405-2   Deduction of contributions to qualified bond purchase plans.

    (a) In general. An employer shall be allowed a deduction for 
contributions paid to or under a qualified bond purchase plan in the 
same manner and to the same extent as if such contributions were made to 
a trust described in section 401(a) which is exempt from tax under 
section 501(a). A deduction will be allowed only for the taxable year in 
which the contributions are paid, or treated as paid, except as provided 
by section 404(a) (1), (3), and (7). For purposes of the deduction, a 
contribution is paid at the time the application for the bond is made 
and the full purchase price paid.
    (b) Rules for applying section 404. If a qualified bond purchase 
plan is designed as a pension plan as defined in paragraph (b)(1)(i) of 
Sec. 1.401-1, the limitations of section 404 applicable to qualified 
pension trusts shall apply.

[[Page 407]]

See Secs. 1.404(a)-3 through 1.404(a)-7. Similarly, if a qualified bond 
purchase plan is designed as a profit-sharing plan as defined in 
paragraph (b)(1)(ii) of Sec. 1.401-1, the limitations of section 404 
applicable to qualified profit-sharing trusts shall apply. See 
Secs. 1.404(a)-9 and 1.404(a)-10. In addition, if a qualified bond 
purchase plan designed as a pension plan covers some or all of the 
employees who are covered by a qualified profit-sharing plan established 
and maintained by the same employer, or if a qualified bond purchase 
plan which is designed as a profit-sharing plan covers some or all the 
employees who are also covered by a qualified pension or annuity plan 
established and maintained by the same employer, section 404(a)(7) is 
applicable. See Sec. 1.404(a)-(13). Furthermore, if a qualified bond 
purchase plan covers employees some or all of whom are employees within 
the meaning of section 401(c)(1), the provisions of section 404(a) (8), 
(9), and (10) and 404(e) shall also apply.
    (c) Accrual method taxpayers. In the case of a taxpayer using the 
accrual method of accounting, a contribution to a qualified bond 
purchase plan will be deemed paid on the last day of the year of accrual 
if--
    (1) During the taxable year of accrual the taxpayer incurs a 
liability to make the contribution, the amount of which is accruable 
under section 461 for such taxable year, and
    (2) Payment is in fact made no later than the time prescribed by the 
law for filing the return for the taxable year of accrual (including 
extensions thereof).

[T.D. 6675, 28 FR 10131, Sept. 17, 1963]




Sec. 1.405-3   Taxation of retirement bonds.

    (a) In general. (1) As in the case of employer contributions under a 
qualified pension, annuity, profit-sharing, or stock bonus plan, 
employer contributions on behalf of his common-law employees under a 
qualified bond purchase plan are not includible in the gross income of 
the employees when made, and employer contributions on behalf of self-
employed individuals are deductible as provided in section 405(c) and 
Sec. 1.405-2. Further, an employee or his beneficiary does not realize 
gross income upon the receipt of a retirement bond pursuant to a 
qualified bond purchase plan or from a trust described in section 401(a) 
which is exempt from tax under section 501(a). Upon redemption of such a 
bond, ordinary income will be realized to the extent the proceeds 
thereof exceed the basis (determined in accordance with paragraph (b) of 
this section) of the bond. The proceeds of a retirement bond are not 
entitled to the special tax treatment of section 72(n) and Sec. 1.72-18.
    (2) In the event a retirement bond is surrendered for partial 
redemption and reissuance of the remainder, the person surrendering the 
bond shall be taxable on the proceeds received to the extent such 
proceeds exceed the basis in the portion redeemed. In such case, the 
basis shall be determined (in accordance with paragraph (b) of this 
section) as if the portion redeemed and the portion reissued had been 
issued as separate bonds.
    (3) In the event a retirement bond is redeemed after the death of 
the registered owner, the amount taxable (as determined in accordance 
with subparagraph (1) of this paragraph) is income in respect of a 
decedent under section 691.
    (4) The provisions of section 402(a)(2) are not applicable to a 
retirement bond. In general, section 402(a)(2) provides for capital 
gains treatment of certain distributions from a qualified trust which 
constitute the total distributions payable with respect to any employee. 
The proceeds of a retirement bond received upon redemption will not be 
entitled to such capital gain treatment even though the bond is received 
as a part of, or as the whole of, such a total distribution. Nor will 
such a bond be taken into consideration in determining whether the 
distribution represents the total amount payable by the trust with 
respect to an employee. Thus, a distribution by a qualified trust may 
constitute a total distribution payable with respect to an employee for 
purposes of section 402(a)(2) even though the trust retains retirement 
bonds registered in the name of such employee.
    (b) Basis. (1) This paragraph is applicable in determining the basis 
of any retirement bond distributed pursuant to a qualified bond purchase 
plan or distributed by a trust qualifying under

[[Page 408]]

section 401. In the case of such a bond purchased for an individual at 
the time he is a common-law employee, the basis is that portion of the 
purchase price attributable to employee contributions. In the case of 
such a bond purchased for an individual at the time he is a self-
employed individual, the basis shall be determined under subparagraph 
(3) of this paragraph.
    (2) At the time a retirement bond is purchased, there shall be 
indicated on the application for the retirement bond whether the 
individual for whom the retirement bond is purchased is a common-law 
employee or a self-employed individual, and in the case of common-law 
employees the amount of the purchase price, if any, attributable to the 
employee's contribution. The answers to these questions will appear on 
the retirement bond, and when the retirement bond is purchased for a 
common-law employee, the basis for the retirement bond is presumed to be 
the amount of the purchase price which the retirement bond indicates was 
contributed by the employee.
    (3)(i) Except as provided in subdivision (ii) of this subparagraph, 
for purposes of determining the basis of retirement bonds purchased for 
an individual while he was a self-employed individual, all such bonds 
redeemed during a taxable year shall be considered in the aggregate as a 
single retirement bond. The basis of such retirement bonds shall be the 
difference between the aggregate of their face amounts and the lesser 
of:
    (A)1 One-half the aggregate of their face amounts, or
    (B) The aggregate of the unused amounts allowed as a deduction at 
the end of the taxable year (as determined in subparagraph (4) of this 
paragraph).
    (ii) The basis of a retirement bond purchased for a self-employed 
individual which is redeemed after his death is the amount determined by 
multiplying the face amount of such retirement bond by a fraction--
    (A) The numerator of which is the aggregate of the face amounts of 
all the bonds registered in the individual's name at his death which 
were purchased while he was a self-employed individual reduced by the 
aggregate of the unused amounts allowed as a deduction at his death (as 
determined in subparagraph (4) of this paragraph), and
    (B) The denominator of which is the aggregate of the face amounts of 
all such bonds.
    (4)(i) In the case of retirement bonds purchased under a qualified 
bond purchase plan, the aggregate of the unused amounts allowed as a 
deduction at the end of any taxable year shall be an amount equal to the 
total of the amounts allowable for such taxable year, and the amounts 
allowed in all prior taxable years, as a deduction under section 405(c) 
for contributions used to purchase retirement bonds for the registered 
owner while he was a self-employed individual, reduced by an amount 
equal to the portion of the face amounts of such retirement bonds 
redeemed in prior taxable years which were included in the registered 
owner's gross income.
    (ii) In the case of retirement bonds purchased by a trust described 
in section 401(a) and exempt under section 501(a), there shall be 
allocated to the retirement bond the deduction under section 404 
attributable to the contributions used to purchase the retirement bond. 
The amount so allocated shall be treated in the same manner as the 
deduction allowed under section 405(c) for purposes of computing the 
unused amounts allowed as a deduction under subdivision (i) of this 
subparagraph. Further, the amount so allocated shall not be included in 
the investment in the contract for purposes of section 72 in determining 
the portion of the other assets distributed by the trust included in 
gross income.
    (5) The application of the rule of subparagraphs (3) and (4) of this 
paragraph may be illustrated by the following examples:

    Example (1). B, a self-employed individual, adopts a qualified bond 
purchase plan in 1963. During 1963 the plan purchased $2,000 worth of 
retirement bonds in his name. As a result of overestimating his income 
for 1963, only $400 was allowed B as a deduction pursuant to section 
405(c). In 1964, prior to B's retirement in June of that year, the plan 
purchased a $500 retirement bond in B's name for which a deduction was 
allowable pursuant to section 405(c) in the amount of $250. B redeemed a 
retirement bond with a face

[[Page 409]]

amount of $500 in September of 1964 and another with a face amount of 
$500 in October of 1964. Of the proceeds received in 1964 from the 
redemption of the bonds, $1,000 plus interest, B shall exclude from his 
gross income $500 (face amount of the retirement bonds, $1,000, less 
$500, one-half of the face amount, the latter being less than the 
aggregate of the unused amounts allowed as a deduction, $250 allowable 
for the taxable year in which the bonds were redeemed plus $400, the 
unused amounts allowed in prior taxable years, or $650). The aggregate 
of the unused amounts allowed as a deduction shall be reduced by the 
amount so excluded ($650-$500=$150). During the following year, B 
redeems another retirement bond with a face amount of $500. Of the 
proceeds received from the redemption of such retirement bond, $500 plus 
interest, B shall exclude from his gross income $350 (face amount of the 
retirement bonds, $500, less $150, the aggregate of the unused amounts 
allowed as a deduction, the latter being less than one-half of the face 
amount of the bond, $250). The aggregate of the unused amounts allowed 
as a deduction is reduced to zero ($150-$150=0). Upon redemption of the 
remaining retirement bonds registered in B's name, B shall exclude from 
his gross income with respect to such proceeds an amount equal to the 
face amounts of the bonds redeemed.
    Example (2). C, a self-employed individual, participated in a 
qualified bond purchase plan during the years 1963 through 1966. The 
plan purchased in his name retirement bonds in the aggregate of $10,000. 
C deducted $4,000 from his gross income for the four years ($1,000 for 
each year) with respect to the purchase of such retirement bonds. C 
retired in December of 1966 and during the following year redeemed one 
retirement bond with a face amount of $1,000. C excluded from his gross 
income $500 of the proceeds of the bond. C died without redeeming any of 
the remaining retirement bonds registered in his name. The basis of each 
remaining retirement bond shall be determined by multiplying the face 
amount of each retirement bond by $5,500$9,000. The numerator is 
the aggregate of the face amounts registered in C's name (as a self-
employed individual) at his death, $9,000, reduced by the aggregate of 
the unused amounts allowed as a deduction at his death, $3,500 (amounts 
allowed as a deduction under section 405(c), $4,000, reduced by the 
portion of the face amount of the retirement bond redeemed by C which 
was included in C's gross income, $500), or $5,500. The denominator is 
the face amount of the retirement bonds registered in his name as a 
self-employed individual at his death, $9,000.

[T.D. 6675, 28 FR 10131, Sept. 17, 1963]




Sec. 1.406-1  Treatment of certain employees of foreign subsidiaries as employees of the domestic corporation.

    (a) Scope--(1) General rule. For purposes of applying the rules in 
part 1 of subchapter D of chapter 1 of subtitle A of the Code and the 
regulations thereunder with respect to a pension, profit-sharing, or 
stock bonus plan described in section 401(a), an annuity plan described 
in section 403(a), or a bond purchase plan described in section 405(a), 
of a domestic corporation, an individual who is a citizen of the United 
States and who is an employee of a foreign subsidiary (as defined in 
section 3121(1)(8) and the regulations thereunder) of such domestic 
corporation shall be treated as an employee of such domestic corporation 
if the requirements of paragraph (b) of this section are satisfied.
    (2) Cross-references. For rules relating to nondiscrimination 
requirements and the determination of compensation, see paragraph (c) of 
this section. For rules under which termination of the status of an 
individual as an employe of the domestic corporation in certain 
instances will not be considered as separation from service for certain 
purposes, see paragraph (d) of this section. For rules regarding 
deductibility of contribution, see paragraph (e) of this section. For 
rules regarding treatment of such individual as an employee of the 
domestic corporation under related provisions, see paragraph (f) of this 
section.
    (b) Application of this section--(1) Requirements. This section 
shall apply and the employee of the foreign subsidiary shall be treated 
as an employee of domestic corporation for the purposes set forth in 
paragraph (a)(1) of this section only if each of the following 
requirements is satisfied:
    (i) The domestic corporation must have entered into an agreement 
under section 3121(l) to provide social security coverage which applies 
to the foreign subsidiary of which such individual is an employee and 
which has not been terminated under section 3121(l)(3) or (4).
    (ii) The plan, referred to in paragraph (a)(1) of this section, must 
expressly provide for contributions or benefits

[[Page 410]]

for individuals who are citizens of the United States and who are 
employees of one or more of its foreign subsidiaries to which an 
agreement entered into by such domestic corporation under section 
3121(l) applies. The plan must apply to all of the foreign subsidiaries 
to which such agreement applies.
    (iii) Contributions under a funded plan of deferred compensation 
(whether or not a plan described in section 401(a), 403(a), or 405(a)) 
must not be provided by any other person with respect to the 
remuneration paid to such individual by the foreign subsidiary.
    (2) Supplementary rules. Subparagraph (l)(ii) of this paragraph does 
not modify the requirements for qualification of a plan described in 
section 401(a), 403(a), or 405(a) and the regulations thereunder. It is 
not necessary that the plan provide benefits or contributions for all 
United States citizens who are employees of such foreign subsidiaries. 
If the plan is amended to cover individuals who are employees by reason 
of paragraph (a)(1) of this section, the plan will not qualify unless it 
meets the coverage requirements of section 410(b)(1) (section 401(a)(3), 
as in effect on September 1, 1974, for plan years to which section 410 
does not apply; see Sec. 1.410(a)-2 for the effective dates of section 
401) and the nondiscrimination requirements of section 401(a)(4). In 
addition, the administrative rules contained in Sec. 1.401(a)-3(e) 
(relating to the determination of the contributions or benefits provided 
by the employer under the Social Security Act) will also apply for 
purposes of determining whether the plan meets the requirements of 
section 401. For purposes of subparagraph (1)(iii) of this paragraph, 
contributions will not be considered as provided under a funded plan 
merely because the foreign subsidiary is required under the laws of the 
foreign jurisdiction to pay social insurance taxes or to make similar 
payments with respect to the wages paid to the employee.
    (c) Special rules--(1) Nondiscrimination requirements. For purposes 
of applying sections 401(a)(4) and 410(b)(1)(B) (section 401(a)(3)(B), 
as in effect on September 1, 1974, for plan years to which section 410 
does not apply) and the regulations thereunder (relating to 
nondiscrimination concerning benefits and contributions and coverage of 
employees) with respect to an employee of the foreign subsidiary who is 
treated as an employee of the domestic corporation under paragraph 
(a)(1) of this section--
    (i) If the employee is an officer, shareholder, or (with respect to 
plan years to which section 410 does not apply) person whose principal 
duties consist in supervising the work of other employees of the foreign 
subsidiary of the domestic corporation, he shall be treated as having 
such capacity with respect to the domestic corporation; and
    (ii) The determination as to whether the employee is a highly 
compensated employee shall be made by comparing his total compensation 
(determined under subparagraph (2) of this paragraph) with the 
compensation of all the employees of the domestic corporation (including 
individuals treated as employees of the domestic corporation pursuant to 
section 406 and this section).
    (2) Determination of compensation. For purposes of applying section 
401(a)(5) and the regulations thereunder, relating to classifications 
that will not be considered discriminatory, with respect to an employee 
of the foreign subsidiary who is treated as an employee of the domestic 
corporation under paragraph (a)(1) of this section--
    (i) The total compensation of the employee shall be the remuneration 
of the employee from the foreign subsidiary (including any allowances 
that are paid to the employee because of his employment in a foreign 
country) which would constitute his total compensation if his services 
had been performed for the domestic corporation;
    (ii) The basic or regular rate of compensation of the employee shall 
be determined for the employee in the same manner as it is determined 
under section 401 for other employees of the domestic corporation; and
    (iii) The amount paid by the domestic corporation which is 
equivalent to the tax imposed with respect to the employee by section 
3101 (relating to the tax on employees under the Federal Insurance 
Contributions Act) shall be

[[Page 411]]

treated as having been paid by the employee and shall be included in his 
compensation.
    (d) Termination of status as deemed employee not to be treated as 
separation from service for purposes of capital gain provisions and 
limitation of tax. For purposes of applying the rules, relating to the 
treatment of certain distributions which are made after an employee's 
separation from service, set forth in section 72(n) as in effect on 
September 1, 1974 (with respect to taxable years ending after December 
31, 1969, and to which section 402(e) does not apply), and in sections 
402(a)(2) and (e) and 403(a)(2) with respect to distributions or 
payments made after December 31, 1973, and in taxable years beginning 
after December 31, 1973) with respect to an employee of a foreign 
subsidiary who is treated as an employee of a domestic corporation under 
paragraph (a)(1) of this section, the employee shall not be considered 
as separated from the service of the domestic corporation solely by 
reason of the occurrence of any one or more of the following events:
    (1) The termination, under the provisions of section 3121(l), of the 
agreement entered into by the domestic corporation under that section 
which covers the employment of the employee;
    (2) The employee's becoming an employee of another foreign 
subsidiary of the domestic corporation with respect to which such 
agreement does not apply,
    (3) The employee's ceasing to be an employee of the foreign 
subsidiary by reason of which employment he was treated as an employee 
of such domestic corporation, if he becomes an employee of another 
corporation controlled by such domestic corporation; or
    (4) The termination of the provision of the plan described in 
paragraph (b)(1)(ii) of this section, for coverage of United States 
citizens who are employees of foreign subsidiaries covered by an 
agreement under section 3121(l).

For purposes of subparagraph (3) of this paragraph, a corporation is 
considered to be controlled by a domestic corporation if such domestic 
corporation owns directly or indirectly more than 50 percent of the 
voting stock of the corporation.
    (e) Deductibility of contributions--(1) In general. For purposes of 
applying sections 404 and 405(c) with respect to the deduction for 
contributions made to or under a pension, profit-sharing, or stock bonus 
plan described in section 401(a), an annuity plan described in section 
403(a), or a bond purchase plan described in section 405(a), by a 
domestic corporation, or by another corporation which is entitled to 
deduct its contributions under section 404(a)(3)(B), on behalf of an 
employee of a foreign subsidiary treated as an employee of the domestic 
corporation under paragraph (a)(1) of this section--
    (i) Except as provided in subdivision (ii) of this subparagraph, no 
deduction shall be allowed to such domestic corporation or to any other 
corporation which would otherwise be entitled to deduct its 
contributions on behalf of such employee under one of such sections;
    (ii) There shall be allowed as a deduction from the gross income of 
the foreign subsidiary which is effectively connected with the conduct 
of a trade or business within the United States (within the meaning of 
section 882 and the regulations thereunder) an amount which is allocable 
and apportionable to such gross income under the rules of Sec. 1.861-8 
and which in no event may exceed the amount which (but for subdivision 
(i) of this subparagraph) would be deductible under section 404 or 
section 405(c) by the domestic corporation if the individual were an 
employee of the domestic corporation and if his compensation were paid 
by the domestic corporation; and
    (iii) Any reference to compensation shall be considered to be a 
reference to the total compensation of such individual (determined by 
applying paragraph (c)(2) of this section).
    (2) Year of deduction. Any amount deductible by the foreign 
subsidiary under section 406(d) and this paragraph shall be deductible 
for its taxable year with or within which ends the taxable year of the 
domestic corporation for which the contribution was made.
    (3) Special rules. Whether contributions to a plan on behalf of an 
employee of the foreign subsidiary who is

[[Page 412]]

treated as an employee of the domestic corporation under paragraph 
(a)(1) of this section, or whether forfeitures with regard to such 
employee, will require an inclusion in the income of the domestic 
corporation or an adjustment in the basis of its stock in the foreign 
subsidiary, shall be determined in accordance with the rules of general 
application of subtitle A of chapter 1 of the Code (relating to income 
taxes). For example, an unreimbursed contribution by the domestic 
corporation to a plan which meets the requirements of section 401(a) 
will be treated, to the extent each employee's rights to the 
contribution are nonforfeitable, as a contribution of capital to the 
foreign subsidiary to the extent that such contributions are made on 
behalf of the employees of such subsidiary.
    (f) Treatment as an employee of the domestic corporation under 
related provisions. An individual who is treated as an employee of a 
domestic corporation under paragraph (a)(1) of this section shall also 
be treated as an employee of such domestic corporation, with respect to 
the plan having the provision described in paragraph (b)(1)(ii) of this 
section, for purposes of applying section 72(d) (relating to employees' 
annuities), section 72(f) (relating to special rules for computing 
employees' contributions), section 101(b) (relating to employees' death 
benefits), section 2039 (relating to annuities), and section 2517 
(relating to certain annuities under qualified plans) and the 
regulations thereunder.
    (g) Nonexempt trust. If the plan of the domestic corporation is a 
qualified plan described under section 401(a), the fact that a trust 
which forms a part of such plan is not exempt from tax under section 
501(a) shall not affect the treatment of an employee of a foreign 
subsidiary as an employee of a domestic corporation under section 406(a) 
and paragraph (a)(1) of this section.

(Sec. 411 Internal Revenue Code of 1954 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42321, Aug. 23, 1978]




Sec. 1.407-1  Treatment of certain employees of domestic subsidiaries engaged in business outside the United States as employees of the domestic parent 
          corporation.

    (a) Scope--(1) General rule. For purposes of applying the rules in 
part 1 of subchapter D of chapter 1 of subtitle A of the Code and the 
regulations thereunder with respect to a pension, profit-sharing, or 
stock bonus plan described in section 401(a), an annuity plan described 
in section 403(a), or a bond purchase plan described in section 405(a), 
of a domestic parent corporation (as defined in paragraph (b)(3)(ii) of 
this section), an individual who is a citizen of the United States and 
who is an employee of a domestic subsidiary (as defined in paragraph 
(b)(3)(i) of this section) of such domestic parent corporation shall be 
treated as an employee of such domestic parent corporation if the 
requirements of paragraph (b) of this section are satisfied.
    (2) Cross-references. For rules relating to nondiscrimination 
requirements and the determination of compensation, see paragraph (c) of 
this section. For rules under which termination of the status of an 
individual as an employee of the domestic parent corporation in certain 
instances will not be considered as separation from service for certain 
purposes, see paragraph (d) of this section. For rules regarding 
deductibility of contributions, see paragraph (e) of this section. For 
rules regarding treatment of such individual as an employee of the 
domestic parent corporation under related provisions, see paragraph (f) 
of this section.
    (b) Application of this section--(1) Requirements. This section 
shall apply and the employee of the domestic subsidiary shall be treated 
as an employee of the domestic parent corporation for the purposes set 
forth in paragraph (a)(1) of this section only if each of the following 
requirements is satisfied:
    (i) The plan, referred to in paragraph (a)(1) of this section, must 
expressly provide for contributions of benefits for individuals who are 
citizens of the United States and who are employees

[[Page 413]]

of one or more of the domestic subsidiaries of the domestic parent 
corporation. The plan must apply to every domestic subsidiary.
    (ii) Contributions under a funded plan of deferred compensation 
(whether or not a plan described in section 401(a), 403(a), or 405(a)) 
must not be provided by any other person with respect to the 
remuneration paid to such individual by the domestic subsidiary.
    (2) Supplementary rules. Subparagraph (1)(i) of this paragraph does 
not modify the requirements for qualification of a plan described in 
section 401(a), 403(a), or 405(a) and the regulations thereunder. It is 
not necessary that the plan provide benefits or contributions for all 
United States citizens who are employees of such domestic subsidiaries. 
It the plan is amended to cover individuals who are employees by reason 
of paragraph (a)(1) of this section, the plan will not qualify unless it 
meets the coverage requirements of section 410(b)(1) (section 401(a)(3), 
as in effect on September 1, 1974, for plan years to which section 410 
does not apply; see Sec. 1.410 (a)-2 for the effective dates of section 
401) and the nondiscrimination requirements of section 410(a)(4). The 
administrative rules contained in Sec. 1.401 (a)-3(e) (relating to the 
determination of the contributions or benefits provided by the employer 
under the Social Security Act) will also apply for purposes of 
determining whether the plan meets the requirements of section 401. For 
purposes of subparagraph (1)(ii) of this paragraph, contributions will 
not be considered as provided under a funded plan merely because the 
domestic subsidiary employer pays the tax imposed by section 3111 
(relating to tax on employers under the Federal Insurance Contributions 
Act) with respect to such employee or is required under the laws of a 
foreign jurisdiction to pay social insurance taxes or to make similar 
payments with respect to the wages paid to the employee.
    (3) Definitions--(i) Domestic subsidiary. For purposes of this 
section, a corporation shall be treated as a domestic subsidiary for any 
taxable year only if each of the following requirements is satisfied:
    (A) It is a domestic corporation 80 percent or more of the 
outstanding voting stock of which is owned by another domestic 
corporation;
    (B) 95 percent of more of its gross income for the three-year period 
immediately preceding the close of its taxable year which ends on or 
before the close of the taxable year of such other domestic corporation 
(or for such part of such period during which it was in existence) was 
derived from sources without the United States, determined pursuant to 
sections 861 through 864 and the regulations thereunder; and
    (C) 90 percent or more of its gross income for such period (or such 
part) was derived from the active conduct of a trade or business.

If for the period (or part thereof) referred to in (B) and (C) of this 
subdivision such corporation has no gross income, the provisions of (B) 
and (C) shall be treated as satisfied if it is reasonable to anticipate 
that, with respect to the first taxable year thereafter for which such 
corporation has gross income, such provisions will be satisfied.
    (ii) Domestic parent corporation. The domestic parent corporation of 
any domestic subsidiary is the domestic corporation which owns 80 
percent or more of the outstanding voting stock of such domestic 
subsidiary.
    (c) Special rules--(1) Nondiscrimination requirements. For purposes 
of applying sections 401(a)(4) and 410(b)(1)(B) (section 401(a)(3)(B), 
as in effect on Septemeber 1, 1974, for plan years to which section 410 
does not apply) and the regulation thereunder (relating to 
nondiscrimination concerning benefits and contributions and coverage of 
employees) with respect to an employee of the domestic subsidiary who is 
treated as an employee of the domestic parent corporation under 
paragraph (a)(1) of this section--
    (i) If the employee is an officer, shareholder, or (with respect to 
plan years to which section 410 does not apply) a person whose principal 
duties consist in supervising the work of other employees of the 
domestic subsidiary of the domestic parent corporation, he shall be 
treated as having such capacity with respect to the domestic parent 
corporation; and
    (ii) The determination as to whether the employee is a highly 
compensated employee shall be made by comparing

[[Page 414]]

his total compensation determined under subparagraph (2) of this 
paragraph with the compensation of all the employees of the domestic 
parent corporation (including individuals treated as employees of the 
domestic parent corporation pursuant to section 407 and this section).
    (2) Determination of compensation. For purposes of applying section 
401(a) (5) and the regulations thereunder, relating to classifications 
that will not be considered discriminatory, with respect to an employee 
of the domestic subsidiary who is treated as an employee of the domestic 
parent corporation under paragraph (a)(1) of this section--
    (i) The total compensation of the employee shall be the remuneration 
of the employee from the domestic subsidiary (including any allowances 
that are paid to the employee because of his employment in a foreign 
country) which would constitute his total compensation if his services 
had been performed for such domestic parent corporation; and
    (ii) The basic or regular rate of compensation of the employee shall 
be determined for the employee in the same manner as it is determined 
under section 401 for other employees of the domestic parent 
corporation.
    (d) Termination of status as deemed employee not to be treated as 
separation from service for purposes of captial gain provisions and 
limitation of tax. For purposes of applying the rules, relating to 
treatment of certain distributions which are made after an employee's 
separation from service, set forth in section 72(n) as in effect on 
September 1, 1974 (with respect to taxable years ending after December 
31, 1969, and to which section 402(e) does not apply), and in sections 
402 (a)(2) and (e) and 403(a)(2) (with respect to distributions or 
payments made after December 31, 1973, and in taxable years beginning 
after December 31, 1973) with respect to an employee of a domestic 
subsidiary who is treated as an employee of a domestic parent 
corporation under paragraph (a)(1) of this section, the employee shall 
not be considered as separated from the service of the domestic parent 
corporation solely by reason of the occurrence of any one or more of the 
following events:
    (1) The fact that the corporation of which such individual is an 
employee ceases, for any taxable year, to be a domestic subsidiary 
within the mean of paragraph (b)(3)(i) of this section;
    (2) The employee' ceasing to be an employee of the domestic 
subsidiary of such domestic parent corporation, if he becomes an 
employee of another corporation controlled by such domestic parent 
corporation; or
    (3) The termination of the provision of the plan described in 
paragraph (b)(1)(i) of this section, requiring coverage of the United 
States citizens who are employees of domestic subsidiaries of the 
domestic parent corporation.

For purposes of subparagraph (2) of this paragraph, a corporation is 
considered to be controlled by a domestic parent corporation if the 
domestic parent corporation owns directly or indirectly more than 50 
percent of the voting stock of the corporation.
    (e) Deductibility of contributions--(1) In general. For purposes of 
applying sections 404 and 405(c) with respect to the deduction for 
contributions made to or under a pension, profit-sharing, or stock bonus 
plan described in section 401(a), and annuity plan described in section 
403(a), or a bond purchase plan described in section 405(a), by a 
domestic parent corporation, or by another corporation which is entitled 
to deduct its contributions under section 404(a)(3)(B), on behalf of an 
employee of a domestic subsidiary treated as an employee of the domestic 
parent corporation under paragraph (a)(1) of this section--
    (i) Except as provided in subdivision (ii) of this subparagraph, no 
deduction shall be allowed to the domestic parent corporation which 
would otherwise be entitled to deduct its contributions on behalf of 
such employee under one of such sections;
    (ii) There shall be allowed as a deduction to the domestic 
subsidiary of which such individual is an employee an amount equal to 
the amount which (but for subdivision (i) of this subparagraph) would be 
deductible under section 404 or section 405(c) by the domestic parent 
corporation if the individual

[[Page 415]]

were an employee of the domestic parent corporation and if his 
compensation were paid by the domestic corporation; and
    (iii) Any reference to compensation shall be considered to be a 
reference to the total compensation of such individual determined by 
applying paragraph (c)(2) of this section).
    (2) Year of deduction. Any amount deductible by the domestic 
subsidiary under section 407(d) and this paragraph shall be deductible 
for its taxable year with or within which ends the taxable year of the 
domestic parent corporation for which the contribution was made.
    (3) Special rules. Whether contributions to a plan on behalf of an 
employee of the domestic subsidiary who is treated as an employee of the 
domestic parent corporation under paragraph (a)(1) of this section, or 
whether forfeitures with regard to such employee, will require an 
inclusion in the income of the domestic parent corporation or an 
adjustment in the basis of its stock in the domestic subsidiary, shall 
be determined in accordance with the rules of general application of 
subtitle A of chapter 1 of the Code (relating to income taxes). For an 
example, and unreimbursed contribution by the domestic parent 
corporation to a plan which meets the requirements of section 401(a) 
will be treated, to the extent each employee's rights to the 
contribution are nonforfeitable, as a contribution of capital to the 
domestic subsidiary to the extent that such contributions are made on 
behalf of the employees of such subsidiary.
    (f) Treatment as an employee of the domestic parent corporation 
under related provisions. An individual who is treated as an employee of 
a domestic parent corporation under paragraph (a)(1) of this section 
shall also be treated as an employee of such domestic corporation, with 
respect to the plan having the provision described in paragraph 
(b)(1)(i) of this section, for purposes of applying section 72(d) 
(relating to special rules for computing employees' contributions), 
section 72(f) (relating to special rules for computing employees' 
contributions), section 101(b) (relating to employees' section 101(b) 
(relating to employees' death benefits), section 2039 (relating to 
annuities), and section 2517 (relating to certain annuities under 
qualified plans) and the regulations thereunder.
    (g) Nonexempt trust. If the plan of the domestic parent corporation 
is a qualified plan described under section 401(a), the fact that a 
trust which forms a part of such plan is not exempt from tax under 
section 501(a) shall not affect the treatment of an employee of a 
domestic subsidiary as an employee of a domestic parent corporation 
under section 407(a) and paragraph (a)(1) of this section.

(Sec. 411 Internal Revenue Code of 1954 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42323, Aug. 23, 1977]




Sec. 1.408-1  General rules.

    (a) In general. Section 408 prescribes rules relating to individual 
retirement accounts and individual retirement annuities. In addition to 
the rules set forth in Secs. 1.408-2 and 1.408-3, relating respectively 
to individual retirement accounts and individual retirement annuities, 
the rules set forth in this section shall also apply.
    (b) Exemption from tax. The individual retirement account or 
individual retirement annuity is exempt from all taxes under subtitle A 
of the Code other than the taxes imposed under section 511, relating to 
tax on unrelated business income of charitable, etc., organizations.
    (c) Sanctions--(1) Excess contributions. If an individual retirement 
account or individual retirement annuity accepts and retains excess 
contributions, the individual on whose behalf the account is established 
or who is the owner of the annuity will be subject to the excise tax 
imposed by section 4973.
    (2) Prohibited transactions by owner or beneficiary of individual 
retirement account--(i) Under section 408(e)(2), if, during any taxable 
year of the individual for whose benefit any individual retirement 
account is established, that individual or the individual's beneficiary 
engages in any transaction prohibited by section 4975 with respect to 
such account, such account ceases to be an individual retirement account 
as of the first day of such taxable year. In

[[Page 416]]

any case in which any individual retirement account ceases to be an 
individual retirement account by reason of the preceding sentence as of 
the first day of any taxable year, section 408(d)(1) applies as if there 
were a distribution on such first day in an amount equal to the fair 
market value (on such first day) of all assets in the account (on such 
first day). The preceding sentence applies even though part of the fair 
market value of the individual retirement account as of the first day of 
the taxable year is attributable to excess contributions which may be 
returned tax-free under section 408(d)(4) or 408(d)(5).
    (ii) If the trust with which the individual engages in any 
transaction described in subdivision (i) of this subparagraph is 
established by an employer or employee association under section 408(c), 
only the employee who engages in the prohibited transaction is subject 
to disqualification of his separate account.
    (3) Prohibited transaction by person other than owner or beneficiary 
of account. If any person other than the individual on whose behalf an 
individual retirement account is established or the individual's 
beneficiary engages in any transaction prohibited by section 4975 with 
respect to such account, such person shall be subject to the taxes 
imposed by section 4975.
    (4) Pledging account as security. Under section 408(e)(4), if, 
during any taxable year of the individual for whose benefit an 
individual retirement account is established, that individual uses the 
account or any portion thereof as security for a loan, the portion so 
used is treated as distributed to that individual.
    (5) Borrowing on annuity contract. Under section 408(e)(3), if 
during any taxable year the owner of an individual retirement annuity 
borrows any money under or by use of such contract, the contract ceases 
to be an individual retirement annuity as of the first day of such 
taxable year. See Sec. 1.408-3(c).
    (6) Premature distributions. If a distribution (whether a deemed 
distribution or an actual distribution) is made from an individual 
retirement account, or individual retirement annuity, to the individual 
for whose benefit the account was established, or who is the owner of 
the annuity, before the individual attains age 59\1/2\ (unless the 
individual has become disabled within the meaning of section 72(m)(7)), 
the tax under Chapter 1 of the Code for the taxable year in which such 
distribution is received is increased under section 408(f)(1) or (f)(2). 
The increase equals 10 percent of the amount of the distribution which 
is includible in gross income for the taxable year. Except in the case 
of the credits allowable under section 31, 39, or 42, no credit can be 
used to offset the increased tax described in this subparagraph. See, 
however, Sec. 1.408-4(c)(3).
    (d) Limitation on contributions and benefits. An individual 
retirement account or individual retirement annuity is subject to the 
limitation on contributions and benefits imposed by section 415 for 
years beginning after December 31, 1975.
    (e) Community property laws. Section 408 shall be applied without 
regard to any community property laws.

[T.D. 7714, 45 FR 52790, Aug. 8, 1980]



Sec. 1.408-2  Individual retirement accounts.

    (a) In general. An individual retirement account must be a trust or 
a custodial account (see paragraph (d) of this section). It must satisfy 
the requirements of paragraph (b) of this section in order to qualify as 
an individual retirement account. It may be established and maintained 
by an individual, by an employer for the benefit of his employees (see 
paragraph (c) of this section), or by an employee association for the 
benefit of its members (see paragraph (c) of this section).
    (b) Requirements. An individual retirement account must be a trust 
created or organized in the United States (as defined in section 
7701(a)(9)) for the exclusive benefit of an individual or his 
beneficiaries. Such trust must be maintained at all times as a domestic 
trust in the United States. The instrument creating the trust must be in 
writing and the following requirements must be satisfied.
    (1) Amount of acceptable contributions. Except in the case of a 
contribution to a simplified employee pension described in section 
408(k) and a rollover

[[Page 417]]

contribution described in section 408(d)(3), 402(a)(5), 402(a)(7), 
403(a)(4), 403(b)(8) or 409(b)(3)(C), the trust instrument must provide 
that contributions may not be accepted by the trustee for the taxable 
year in excess of $1,500 on behalf of any individual for whom the trust 
is maintained. An individual retirement account maintained as a 
simplified employee pension may provide for the receipt of up to $7,500 
for a calendar year.
    (2) Trustee. (i) The trustee must be a bank (as defined in section 
408(n) and the regulations thereunder) or another person who 
demonstrates, in the manner described in paragraph (e) of this section, 
to the satisfaction of the Commissioner, that the manner in which the 
trust will be administered will be consistent with the requirements of 
section 408 and this section.
    (ii) Section 11.408(a)(2)-1 of the Temporary Income Tax Regulations 
under the Employee Retirement Income Security Act of 1974 is superseded 
by this subparagraph (2).
    (3) Life insurance contracts. No part of the trust funds may be 
invested in life insurance contracts. An individual retirement account 
may invest in annuity contracts which provide, in the case of death 
prior to the time distributions commence, for a payment equal to the sum 
of the premiums paid or, if greater, the cash value of the contract.
    (4) Nonforfeitability. The interest of any individual on whose 
behalf the trust is maintained in the balance of his account must be 
nonforfeitable.
    (5) Prohibition against commingling. (i) The assets of the trust 
must not be commingled with other property except in a common trust fund 
or common investment fund.
    (ii) For purposes of this subparagraph, the term ``common investment 
fund'' means a group trust created for the purpose of providing a 
satisfactory diversification or investments or a reduction of 
administrative expenses for the individual participating trusts, and 
which group trust satisfies the requirements of section 408(c) (except 
that it need not be established by an employer or an association of 
employees) and the requirements of section 401(a) in the case of a group 
trust in which one of the individual participating trusts is an 
employees' trust described in section 401(a) which is exempt from tax 
under section 501(a).
    (iii) For purposes of this subparagraph, the term ``individual 
participating trust'' means an employees' trust described in section 
401(a) which is exempt from tax under section 501(a) or a trust which 
satisfies the requirements of section 408(a) provided that in the case 
of such an employees' trust, such trust would be permitted to 
participate in such a group trust if all the other individual 
participating trusts were employees' trusts described in section 401(a) 
which are exempt from tax under section 501(a).
    (6) Distribution of interest. (i) The trust instrument must provide 
that the entire interest of the individual for whose benefit the trust 
is maintained must be distributed to him in accordance with paragraph 
(b)(6)(ii) or (iii) of this section.
    (ii) Unless the provisions of paragraph (b)(6)(iii) of this section 
apply, the entire interest of the individual must be actually 
distributed to him not later than the close of his taxable year in which 
he attains age 70\1/2\.
    (iii) In lieu of distributing the individual's entire interest as 
provided in paragraph (b)(6)(ii) of this section, the interest may be 
distributed commencing not later than the taxable year described in such 
paragraph (b)(6)(ii). In such case, the trust must expressly provide 
that the entire interest of the individual will be distributed to the 
individual and the individual's beneficiaries, in a manner which 
satisfies the requirements of paragraph (b)(6)(v) of this section, over 
any of the following periods (or any combination thereof)--
    (A) The life of the individual,
    (B) The lives of the individual and spouse,
    (C) A period certain not extending beyond the life expectancy of the 
individual, or
    (D) A period certain not extending beyond the joint life and last 
survivor expectancy of the individual and spouse.
    (iv) The life expectancy of the individual or the joint life and 
last survivor expectancy of the individual and

[[Page 418]]

spouse cannot exceed the period computed by use of the expected return 
multiples in Sec. 1.72-9, or, in the case of payments under a contract 
issued by an insurance company, the period computed by use of the 
mortality tables of such company.
    (v) If an individual's entire interest is to be distributed over a 
period described in paragraph (b)(6)(iii) of this section, beginning in 
the year the individual attains 70\1/2\ the amount to be distributed 
each year must be not less than the lesser of the balance of the 
individual's entire interest or an amount equal to the quotient obtained 
by dividing the entire interest of the individual in the trust at the 
beginning of such year (including amounts not in the individual 
retirement account at the beginning of the year because they have been 
withdrawn for the purpose of making a rollover contribution to another 
individual retirement plan) by the life expectancy of the individual (or 
the joint life and last survivor expectancy of the individual and spouse 
(whichever is applicable)), determined in either case as of the date the 
individual attains age 70 in accordance with paragraph (b)(6)(iv) of 
this section, reduced by one for each taxable year commencing after the 
individual's attainment of age 70\1/2\. An annuity or endowment contract 
issued by an insurance company which provides for non-increasing 
payments over one of the periods described in paragraph (b)(6)(iii) of 
this section beginning not later than the close of the taxable year in 
which the individual attains age 70\1/2\ satisfies this provision. 
However, no distribution need be made in any year, or a lesser amount 
may be distributed, if beginning with the year the individual attains 
age 70\1/2\ the aggregate amounts distributed by the end of any year are 
at least equal to the aggregate of the minimum amounts required by this 
subdivision to have been distributed by the end of such year.
    (vi) If an individual's entire interest is distributed in the form 
of an annuity contract, then the requirements of section 408(a)(6) are 
satisfied if the distribution of such contract takes place before the 
close of the taxable year described in subdivision (ii) of this 
subparagraph, and if the individual's interest will be paid over a 
period described in subdivision (iii) of this subparagraph and at a rate 
which satisfies the requirements of subdivision (v) of this 
subparagraph.
    (vii) In determining whether paragraph (b)(6)(v) of this section is 
satisfied, all individual retirement plans maintained for an 
individual's benefit (except those under which he is a beneficiary 
described in section 408(a)(7)) at the close of the taxable year in 
which he reaches age 70\1/2\ must be aggregated. Thus, the total 
payments which such individual receives in any taxable year must be at 
least equal to the amount he would have been required to receive had all 
the plans been one plan at the close of the taxable year in which he 
attained age 70\1/2\.
    (7) Distribution upon death. (i) The trust instrument must provide 
that if the individual for whose benefit the trust is maintained dies 
before the entire interest in the trust has been distributed to him, or 
if distribution has been commenced as provided in paragraph (b)(6) of 
this section to the surviving spouse and such spouse dies before the 
entire interest has been distributed to such spouse, the entire interest 
(or the remaining part of such interest if distribution thereof has 
commenced) must, within 5 years after the individual's death (or the 
death of the surviving spouse) be distributed or applied to the purchase 
of an immediate annuity for this beneficiary or beneficiaries (or the 
beneficiary or beneficiaries of the surviving spouse) which will be 
payable for the life of such beneficiary or beneficiaries (or for a term 
certain not extending beyond the life expectancy of such beneficiary or 
beneficiaries) and which annuity contract will be immediately 
distributed to such beneficiary or beneficiaries. A contract described 
in the preceding sentence is not includible in gross income upon 
distribution. Section 1.408-4(e) provides rules applicable to the 
taxation of such contracts. The first sentence of this paragraph (b)(7) 
shall have no application if distributions over a term certain commenced 
before the death of the individual for whose benefit the trust was 
maintained and the term certain is for a period

[[Page 419]]

permitted under paragraph (b)(6)(iii) (C) or (D) of this section.
    (ii) Each such beneficiary (or beneficiary of a surviving spouse) 
may elect to treat the entire interest in the trust (or the remaining 
part of such interest if distribution thereof has commenced) as an 
account subject to the distribution requirements of section 408(a)(6) 
and paragraph (b)(6) of this section instead of those of section 
408(a)(7) and paragraph (b)(7) of this section. Such an election will be 
deemed to have been made if such beneficiary treats the account in 
accordance with the requirements of section 408(a)(6) and paragraph 
(b)(6) of this section. An election will be considered to have been made 
by such beneficiary if either of the following occurs: (A) any amounts 
in the account (including any amounts that have been rolled over, in 
accordance with the requirements of section 408(d)(3)(A)(i), into an 
individual retirement account, individual retirement annuity, or 
retirement bond for the benefit of such individual) have not been 
distributed within the appropriate time period required by section 
408(a)(7) and paragraph (b)(7) of this section; or (B) any additional 
amounts are contributed to the account (or to the account, annuity, or 
bond to which the beneficiary has rolled such amounts over, as described 
in (1) above) which are subject, or deemed to be subject, to the 
distribution requirements of section 408(a)(6) and paragraph (b)(6) of 
this section.
    (8) Definition of beneficiaries. The term ``beneficiaries'' on whose 
behalf an individual retirement account is established includes (except 
where the context indicates otherwise) the estate of the individual, 
dependents of the individual, and any person designated by the 
individual to share in the benefits of the account after the death of 
the individual.
    (c) Accounts established by employers and certain association of 
employees--(1) In general. A trust created or organized in the United 
States (as defined in section 7701(a)(9)) by an employer for the 
exclusive benefit of his employees or their beneficiaries, or by an 
association of employees for the exclusive benefit of its members or 
their beneficiaries, is treated as an individual retirement account if 
the requirements of paragraphs (c)(2) and (c)(3) of this section are 
satisfied under the written governing instrument creating the trust. A 
trust described in the preceding sentence is for the exclusive benefit 
of employees or members even though it may maintain an account for 
former employees or members and employees who are temporarily on leave.
    (2) General requirements. The trust must satisfy the requirements of 
paragraphs (b) (1) through (7) of this section.
    (3) Special requirement. There must be a separate accounting for the 
interest of each employee or member.
    (4) Definitions--(i) Separate accounting. For purposes of paragraph 
(c)(3) of this section, the term ``separate accounting'' means that 
separate records must be maintained with respect to the interest of each 
individual for whose benefit the trust is maintained. The assets of the 
trust may be held in a common trust fund, common investment fund, or 
common fund for the account of all individuals who have an interest in 
the trust.
    (ii) Employee association. For purposes of this paragraph and 
section 408(c), the term ``employee association'' means any organization 
composed of two or more employees, including but not limited to, an 
employee association described in section 501(c)(4). Such association 
may include employees within the meaning of section 401(c)(1). There 
must be, however, some nexus between the employees (e.g.,  employees of 
same employer, employees in the same industry, etc.) in order to qualify 
as an employee association described in this subdivision (ii).
    (d) Custodial accounts. For purposes of this section and section 
408(a), a custodial account is treated as a trust described in section 
408(a) if such account satisfies the requirements of section 408(a) 
except that it is not a trust and if the assets of such account are held 
by a bank (as defined in section 401(d)(1) and the regulations 
thereunder) or such other person who satisfies the requirements of 
paragraph (b)(2)(ii) of this section. For purposes of this chapter, in 
the case of a custodial account treated as a trust by reason of the 
preceding sentence, the custodian

[[Page 420]]

of such account will be treated as the trustee thereof.
    (e)(1) In general. The trustee of a trust described in paragraph (b) 
of this section may be a person other than a bank if the person 
demonstrates to the satisfaction of the Commissioner that the manner in 
which the person will administer trusts will be consistent with the 
requirements of section 408. The person must demonstrate by written 
application that the requirements of paragraph (e)(2) to (e)(6) of this 
section will be met. The written application must be sent to address 
prescribed by the Commissioner in revenue rulings, notices, and other 
guidance published in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter). For procedural and 
administrative rules, see paragraph (e)(7) of this section.
    (2) Fiduciary ability. The applicant must demonstrate in detail its 
ability to act within the accepted rules of fiduciary conduct. Such 
demonstration must include the following elements of proof:
    (i) Continuity. (A) The applicant must assure the uninterrupted 
performance of its fiduciary duties nonwithstanding the death or change 
of its owners. Thus, for example, there must be sufficient diversity in 
the ownership of the applicant to ensure that the death or change of its 
owners will not interrupt the conduct of its business. Therefore, the 
applicant cannot be an individual.
    (B) Sufficient diversity in the ownership of an incorporated 
applicant is demonstrated in the following circumstances:
    (1) Individuals each of whom owns more than 20 percent of the voting 
stock in the applicant own, in the aggregate, no more than 50 percent of 
such stock;
    (2) The applicant has issued securities registered under section 12 
(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78l (b)) or 
required to be registered under section 12(g) (1) of that Act (15 U.S.C. 
78l (g)(1)); or
    (3) The applicant has a parent corporation within the meaning of 
section 1563 (a) (1) that has issued securities registered under section 
12 (b) of the Securities Exchange Act of 1934 (15 U.S.C. 78l (b)) or 
required to be registered under Section 12 (g) (1) of that Act (15 
U.S.C. 78l (g)(1)).
    (C) Sufficient diversity in the ownership of an applicant that is a 
partnership means that--
    (1) Individuals each of whom owns more than 20 percent of the 
profits interest in the partnership own, in the aggregate, no more than 
50 percent of such profits interest, and
    (2) Individuals each of whom owns more than 20 percent of the 
capital interest in the partnership own, in the aggregate, no more than 
50 percent of such capital interest.
    (D) For purposes of this subdivision, the ownership of stock and of 
capital and profits interests shall be determined in accordance with the 
rules for constructive ownership of stock provided in section 1563 (e) 
and (f) (2). For this purpose, the rules for constructive ownership of 
stock provided in section 1563(e) and (f) (2) shall apply to a capital 
or profits interest in a partnership as if it were a stock interest.
    (ii) Established location. The applicant must have an established 
place of business in the United States where it is accessible during 
every business day.
    (iii) Fiduciary experience. The applicant must have fiduciary 
experience or expertise sufficient to ensure that it will be able to 
perform its fiduciary duties. Evidence of fiduciary experience must 
include proof that a significant part of the business of the applicant 
consists of exercising fiduciary powers similar to those it will 
exercise if its application is approved. Evidence of fiduciary expertise 
must include proof that the applicant employs personnel experienced in 
the administration of fiduciary powers similar to those the applicant 
will exercise if its application is approved.
    (iv) Fiduciary responsibility. The applicant must assure compliance 
with the rules of fiduciary conduct set out in paragraph (e)(5) of this 
section.
    (v) Financial responsibility. The applicant must exhibit a high 
degree of solvency commensurate with the obligations imposed by this 
paragraph. Among the factors to be taken into account are the 
applicant's net worth, its liquidity, and its ability to pay its debts 
as they come due.

[[Page 421]]

    (3) Capacity to account. The applicant must demonstrate in detail 
its experience and competence with respect to accounting for the 
interests of a large number of individuals (including calculating and 
allocating income earned and paying out distributions to payees). 
Examples of accounting for the interests of a large number of 
individuals include accounting for the interests of a large number of 
shareholders in a regulated investment company and accounting for the 
interests of a large number of variable annuity contract holders.
    (4) Fitness to handle funds--(i) In general. The applicant must 
demonstrate in detail its experience and competence with respect to 
other activities normally associated with the handling of retirement 
funds.
    (ii) Examples. Examples of activities normally associated with the 
handling of retirement funds include:
    (A) To Receive, issue receipts for, and safely keep securities;
    (B) To collect income;
    (C) To execute such ownership certificates, to keep such records, 
make such returns, and render such statements as are required for 
Federal tax purposes;
    (D) To give proper notification regarding all collections;
    (E) To collect matured or called principal and properly report all 
such collections;
    (F) To exchange temporary for definitive securities;
    (G) To give proper notification of calls, subscription rights, 
defaults in principal or interest, and the formation of protective 
committees;
    (H) To buy, sell, receive, or deliver securities on specific 
directions.
    (5) Rules of fiduciary conduct. The applicant must demonstrate that 
under applicable regulatory requirements, corporate or other governing 
instruments, or its established operating procedures:
    (i) Administration of fiduciary powers. (A)(1) The owners or 
directors of the applicant will be responsible for the proper exercise 
of fiduciary powers by the applicant. Thus, all matters pertinent 
thereto, including the determination of policies, the investment and 
disposition of property held in a fiduciary capacity, and the direction 
and review of the actions of all employees utilized by the applicant in 
the exercise of its fiduciary powers, will be the responsibility of the 
owners or directors. In discharging this responsibility, the owners or 
directors may assign to designated employees, by action duly recorded, 
the administration of such of the applicant's fiduciary powers as may be 
proper to assign.
    (2) A written record will be made of the acceptance and of the 
relinquishment or closing out of all fiduciary accounts, and of the 
assets held for each account.
    (3) If the applicant has the authority or the responsibility to 
render any investment advice with regard to the assets held in or for 
each fiduciary account, the advisability of retaining or disposing of 
the assets will be determined at least once during each period of 12 
months.
    (B) All employees taking part in the performance of the applicant's 
fiduciary duties will be adequately bonded. Nothing in this subdivision 
(i)(B) shall require any person to be bonded in contravention of section 
412(d) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 
1112(d)).
    (C) The applicant will employ or retain legal counsel who will be 
readily available to pass upon fiduciary matters and to advise the 
applicant.
    (D) In order to segregate the performance of its fiduciary duties 
from other business activities, the applicant will maintain a separate 
trust division under the immediate supervision of an individual 
designated for that purpose. The trust division may utilize the 
personnel and facilities of other divisions of the applicant, and other 
divisions of the applicant may utilize the personnel and facilities of 
the trust division, as long as the separate identity of the trust 
division is preserved.
    (ii) Adequacy of net worth--(A) Initial net worth requirement. In 
the case of applications received after January 5, 1995, no initial 
application will be accepted by the Commissioner unless the applicant 
has a net worth of not less than $250,000 (determined as of the end of 
the most recent taxable year). Thereafter, the applicant must satisfy

[[Page 422]]

the adequacy of net worth requirements of paragraph (e)(5)(ii)(B) and 
(C) of this section.
    (B) No fiduciary account will be accepted by the applicant unless 
the applicant's net worth (determined as of the end of the most recent 
taxable year) exceeds the greater of--
    (1) $100,000, or
    (2) Four percent (or, in the case of a passive trustee described in 
paragraph (e)(6)(i)(A) of this section, two percent) of the value of all 
of the assets held by the applicant in fiduciary accounts (determined as 
of the most recent valuation date).
    (C) The applicant will take whatever lawful steps are necessary 
(including the relinquishment of fiduciary accounts) to ensure that its 
net worth (determined as of the close of each taxable year) exceeds the 
greater of--
    (1) $50,000, or
    (2) Two percent (or, in the case of a passive trustee described in 
paragraph (e)(6)(i)(A) of this section, one percent) of the value of all 
of the assets held by the applicant in fiduciary accounts (determined as 
of the most recent valuation date).
    (D) Assets held by members of SIPC--(1) For purposes of satisfying 
the adequacy-of-net-worth requirement of this paragraph, a special rule 
is provided for nonbank trustees that are members of the Securities 
Investor Protection Corporation (SIPC) created under the Securities 
Investor Protection Act of 1970 (SIPA)(15 U.S.C. 78aaa et seq., as 
amended). The amount that the net worth of a nonbank trustee that is a 
member of SIPC must exceed is reduced by two percent for purposes of 
paragraph (e)(5)(ii)(B)(2), and one percent for purposes of paragraph 
(e)(5)(ii)(C)(2), of the value of assets (determined on an account-by-
account basis) held for the benefit of customers (as defined in 15 
U.S.C. 78fff-2(e)(4)) in fiduciary accounts by the nonbank trustee to 
the extent of the portion of each account that does not exceed the 
dollar limit on advances described in 15 U.S.C. 78fff-3(a), as amended, 
that would apply to the assets in that account in the event of a 
liquidation proceeding under the SIPA.
    (2) The provisions of this special rule for assets held in fiduciary 
accounts by members of SIPC are illustrated in the following example.

    Example--(a) Trustee X is a broker-dealer and is a member of the 
Securities Investment Protection Corporation. Trustee X also has been 
approved as a nonbank trustee for individual retirement accounts (IRAs) 
by the Commissioner but not as a passive nonbank trustee. Trustee X is 
the trustee for four IRAs. The total assets of each IRA (for which 
Trustee X is the trustee) as of the most recent valuation date before 
the last day of Trustee X's taxable year ending in 1995 are as follows: 
the total assets for IRA-1 is $3,000,000 (all of which is invested in 
securities); the value of the total assets for IRA-2 is $500,000 
($200,000 of which is cash and $300,000 of which is invested in 
securities), the value of the total assets for IRA-3 is $400,000 (all of 
which is invested in securities); and the value of the total assets of 
IRA-4 is $200,000 (all of which is cash). The value of all assets held 
in fiduciary accounts, as defined in Sec. 1.408-2(e)(6)(viii)(A), is 
$4,100,000.
    (b) The dollar limit on advances described in 15 U.S.C. Sec. 78fff-
3(a) that would apply to the assets in each account in the event of a 
liquidation proceeding under the Securities Investor Protection Act of 
1970 in effect as of the last day of Trustee X's taxable year ending in 
1995 is $500,000 per account (no more than $100,000 of which is 
permitted to be cash). Thus, the dollar limit that would apply to IRA-1 
is $500,000; the dollar limit for IRA-2 is $400,000 ($100,000 of the 
cash and the $300,000 of the value of the securities); the dollar limit 
for IRA-3 is $400,000 (the full value of the account because the value 
of the account is less than $500,000 and no portion of the account is 
cash); and the dollar limit for IRA-4 is $100,000 (the entire account is 
cash and the dollar limit per account for cash is $100,000). The 
aggregate dollar limits of the four IRAs is $1,400,000.
    (c) For 1996, the amount determined under Sec. 1.408-2(e)(5)(ii)(B) 
is determined as follows for Trustee X: (1) four percent of $4,100,000 
equals $164,000; (2) two percent of $1,400,000 equals $28,000; and (3) 
$164,000 minus $28,000 equals $136,000. Thus, because $136,000 exceeds 
$100,000, the minimum net worth necessary for Trustee X to accept new 
accounts for 1996 is $136,000.
    (d) For 1996, the amount determined under Sec. 1.408-2(e)(5)(ii)(C) 
for Trustee X is determined as follows: (1) two percent of $4,100,000 
equals $82,000; (2) one percent of $1,400,000 equals $14,000; and (3) 
$82,000 minus $14,000 equals $68,000. Thus, because $68,000 exceeds 
$50,000, the minimum net worth necessary for Trustee X to avoid a 
mandatory relinquishment of accounts for 1996 is $68,000.

    (E) The applicant will determine the value of the assets held by it 
in trust at

[[Page 423]]

least once in each calendar year and no more than 18 months after the 
preceding valuation. The assets will be valued at their fair market 
value, except that the assets of an employee pension benefit plan to 
which section 103(b)(3)(A) of the Employee Retirement Income Security 
Act of 1974 (29 U.S.C. 1023(b)(3)(A)) applies will be considered to have 
the value stated in the most recent annual report of the plan.
    (iii) Audits. (A) At least once during each period of 12 months, the 
applicant will cause detailed audits of the fiduciary books and records 
to be made by a qualified public accountant. At that time, the applicant 
will ascertain whether the fiduciary accounts have been administered in 
accordance with law, this paragraph, and sound fiduciary principles. The 
audits shall be conducted in accordance with generally accepted auditing 
standards, and shall involve whatever tests of the fiduciary books and 
records of the applicant are considered necessary by the qualified 
public accountant.
    (B) In the case of an applicant which is regulated, supervised, and 
subject to periodic examination by a State or Federal agency, such 
applicant may adopt an adequate continuous audit system in lieu of the 
periodic audits required by paragraph (e)(5)(iii)(A) of this section.
    (C) A report of the audits and examinations required under this 
subdivision, together with the action taken thereon, will be noted in 
the fiduciary records of the applicant.
    (iv) Funds awaiting investment or distribution. Funds held in a 
fiduciary capacity by the applicant awaiting investment or distribution 
will not be held uninvested or undistributed any longer than is 
reasonable for the proper management of the account.
    (v) Custody of investments. (A) Except for investments pooled in a 
common investment fund in accordance with the provisions of paragraph 
(e)(5)(vi) of this section, the investments of each account will not be 
commingled with any other property.
    (B) Assets of accounts requiring safekeeping will be deposited in an 
adequate vault. A permanent record will be kept of assets deposited in 
or withdrawn from the vault.
    (vi) Common investment funds. The assets of an account may be pooled 
in a common investment fund (as defined in paragraph (e)(5)(viii)(C) of 
this section) if the applicant is authorized under applicable law to 
administer a common investment fund and if pooling the assets in a 
common investment fund is not in contravention of the plan documents or 
applicable law. The common investment fund must be administered as 
follows:
    (A) Each common investment fund must be established and maintained 
in accordance with a written agreement, containing appropriate 
provisions as to the manner in which the fund is to be operated, 
including provisions relating to the investment powers and a general 
statement of the investment policy of the applicant with respect to the 
fund; the allocation of income, profits and losses; the terms and 
conditions governing the admission or withdrawal of participations in 
the funds; the auditing of accounts of the applicant with respect to the 
fund; the basis and method of valuing assets held by the fund, setting 
forth specific criteria for each type of asset; the minimum frequency 
for valuation of assets of the fund; the period following each such 
valuation date during which the valuation may be made (which period in 
usual circumstances may not exceed 10 business days); the basis upon 
which the fund may be terminated; and such other matters as may be 
necessary to define clearly the rights of participants in the fund. A 
copy of the agreement must be available at the principal office of the 
applicant for inspection during all business hours, and upon request a 
copy of the agreement must be furnished to the employer, the plan 
administrator, any participant or beneficiary of an account, or the 
individual for whose benefit the account is established or that 
individual's beneficiary.
    (B) All participations in the common investment fund must be on the 
basis of a proportionate interest in all of the investments.
    (C) Not less frequently than once during each period of 3 months the 
applicant must determine the value of the assets in the fund as of the 
date set for the valuation of assets. No participation may be admitted 
to or withdrawn

[[Page 424]]

from the fund except (1) on the basis of such valuation and (2) as of 
such valuation date. No participation may be admitted to or withdrawn 
from the fund unless a written request for or notice of intention of 
taking such action has been entered on or before the valuation date in 
the fiduciary records of the applicant. No request or notice may be 
canceled or countermanded after the valuation date.
    (D)(1) The applicant must at least once during each period of 12 
months cause an adequate audit to be made of the common investment fund 
by a qualified public accountant.
    (2) The applicant must at least once during each period of 12 months 
prepare a financial report of the fund which, based upon the above 
audit, must contain a list of investments in the fund showing the cost 
and current value of each investment; a statement for the period since 
the previous report showing purchases, with cost; sales, with profit or 
loss; any other investment changes; income and disbursements; and an 
appropriate notation as to any investments in default.
    (3) The applicant must transmit and certify the accuracy of the 
financial report to the administrator of each plan participating in the 
common investment fund within 120 days after the end of the plan year.
    (E) When participations are withdrawn from a common investment fund, 
distributions may be made in cash or ratably in kind, or partly in cash 
and partly in kind: Provided, That all distributions as of any one 
valuation date must be made on the same basis.
    (F) If for any reason an investment is withdrawn in kind from a 
common investment fund for the benefit of all participants in the fund 
at the time of such withdrawal and such investment is not distributed 
ratably in kind, it must be segregated and administered or realized upon 
for the benefit ratably of all participants in the common investment 
fund at the time of withdrawal.
    (vii) Books and records. (A) The applicant must keep its fiduciary 
records separate and distinct from other records. All fiduciary records 
must be so kept and retained for as long as the contents thereof may 
become material in the administration of any internal revenue law. The 
fiduciary records must contain full information relative to each 
account.
    (B) The applicant must keep an adequate record of all pending 
litigation to which it is a party in connection with the exercise of 
fiduciary powers.
    (viii) Definitions. For purposes of this paragraph (e)(5), and 
paragraph (e)(2)(v), and paragraph (e)(7) of this section--
    (A) The term ``account'' or ``fiduciary account'' means a trust 
described in section 401(a) (including a custodial account described in 
section 401(f)), a custodial account described in section 403(b)(7), or 
an individual retirement account described in section 408(a) (including 
a custodial account described in section 408(h)).
    (B) The term ``plan administrator'' means an administrator as 
defined in Sec. 1.414(g)-1.
    (C) The term ``common investment fund'' means a trust that satisfies 
the following requirements:
    (1) The trust consists of all or part of the assets of several 
accounts that have been established with the applicant, and
    (2) The trust is described in section 401(a) and is exempt from tax 
under section 501(a), or is a trust that is created for the purpose of 
providing a satisfactory diversification of investments or a reduction 
of administrative expenses for the participating accounts and that 
satisfies the requirements of section 408(c).
    (D) The term ``fiduciary records'' means all matters which are 
written, transcribed, recorded, received or otherwise come into the 
possession of the applicant and are necessary to preserve information 
concerning the acts and events relevant to the fiduciary activities of 
the applicant.
    (E) The term ``qualified public accountant'' means a qualified 
public accountant, as defined in section 103(a)(3)(D) of the Employee 
Retirement Income Security Act of 1974, 29 U.S.C. 1023(a)(3)(D), who is 
independent of the applicant.
    (F) The term ``net worth'' means the amount of the applicant's 
assets less

[[Page 425]]

the amount of its liabilities, as determined in accordance with 
generally accepted accounting principles.
    (6) Special rules--(i) Passive trustee. (A) An applicant that 
undertakes to act only as a passive trustee may be relieved of one or 
more of the requirements of this paragraph upon clear and convincing 
proof that such requirements are not germane, under all the facts and 
circumstances, to the manner in which the applicant will administer any 
trust. A trustee is a passive trustee only if under the written trust 
instrument the trustee has no discretion to direct the investment of the 
trust funds or any other aspect of the business administration of the 
trust, but is merely authorized to acquire and hold particular 
investments specified by the trust instrument. Thus, for example, in the 
case of an applicant that undertakes merely to acquire and hold the 
stock of regulated investment companies, the requirements of paragraph 
(e)(5)(i)(A)(3) in its place, and (i)(D), and (vi) of this section shall 
not apply and no negative inference shall be drawn from the applicant's 
failure to demonstrate its experience of competence with respect to the 
activities described in paragraph (e)(4)(ii)(E) to (H) of this section.
    (B) The notice of approval issued to an applicant that is approved 
by reason of this subdivision shall state that the applicant is 
authorized to act only as a passive trustee.
    (ii) Federal or State regulation. Evidence that an applicant is 
subject to Federal or State regulation with respect to one or more 
relevant factors shall be given weight in proportion to the extent that 
such regulatory standards are consonant with the requirements of section 
401. Such evidence may be submitted in addition to, or in lieu of, the 
specific proofs required by this paragraph.
    (iii) Savings account. (A) An applicant will be approved to act as 
trustee under this subdivision if the following requirements are 
satisfied:
    (1) The applicant is a credit union, industrial loan company, or 
other financial institution designated by the Commissioner;
    (2) The investment of the trust assets will be solely in deposits in 
the applicant;
    (3) Deposits in the applicant are insured (up to the dollar limit 
prescribed by applicable law) by an agency or instrumentality of the 
United States, or by an organization established under a special statute 
the business of which is limited to insuring deposits in financial 
institutions and providing related services.
    (B) Any applicant that satisfies the requirements of this 
subdivision is hereby approved, and (notwithstanding subparagraph (2) of 
this paragraph) is not required to submit a written application. This 
approval takes effect on the first day after December 22, 1976, on which 
the applicant satisfies the requirements of this subdivision, and 
continues in effect for so long as the applicant continues to satisfy 
those requirements.
    (C) If deposits are insured, but not in the manner provided in 
paragraph (e)(6)(iii)(A)(3) of this section, the applicant must submit 
an application. The application, notwithstanding subparagraph (2) of 
this paragraph, will be limited to a complete description of the 
insurance of applicant's deposits. The applicant will be approved if the 
Commissioner approves of the applicant's insurance.
    (iv) Notification of Commissioner. The applicant must notify the 
Commissioner in writing of any change that affects the continuing 
accuracy of any representation made in the application required by this 
paragraph, whether the change occurs before or after the applicant 
receives a notice of approval. The notification must be addressed to 
address prescribed by the Commissioner in revenue rulings, notices, and 
other guidance published in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter.
    (v) Substitution of trustee. No applicant will be approved unless 
the applicant undertakes to act as trustee only under trust instruments 
which contain a provision to the effect that the grantor is to 
substitute another trustee upon notification by the Commissioner that 
such substitution is required because the applicant has failed to comply 
with the requirements of this paragraph or

[[Page 426]]

is not keeping such records, or making such returns, or rendering such 
statements as are required by forms or regulations.
    (7) Procedure and administration--(i) Notice of approval. If the 
applicant is approved, a written notice of approval will be issued to 
the applicant. The notice of approval will state the day on which it 
becomes effective, and (except as otherwise provided therein) will 
remain effective until revoked. This paragraph does not authorize the 
applicant to accept any fiduciary account before such notice of approval 
becomes effective.
    (ii) Notice of disapproval. If the applicant is not approved, a 
written notice will be furnished to the applicant containing a statement 
of the reasons why the applicant has not been approved.
    (iii) Copy to be furnished. The applicant must not accept a 
fiduciary account until after the plan administrator or the person for 
whose benefit the account is to be established is furnished with a copy 
of the written notice of approval issued to the applicant. This 
provision is effective six months after April 20, 1979 for new accounts 
accepted thereafter. For accounts accepted before that date, the 
administrator must be notified before the later of the effective date of 
this provision or six months after acceptance of the account.
    (iv) Grounds for revocation. The notice of approval issued to an 
applicant will be revoked if the Commissioner determines that the 
applicant is unwilling or unable to administer fiduciary accounts in a 
manner consistent with the requirements of this paragraph. Generally, 
the notice will not be revoked unless the Commissioner determines that 
the applicant has knowingly, willfully, or repeatedly failed to 
administer fiduciary accounts in a manner consistent with the 
requirements of this paragraph, or has administered a fiduciary account 
in a grossly negligent manner.
    (v) Procedures for revocation. The notice of approval issued to an 
applicant may be revoked in accordance with the following procedures:
    (A) If the Commissioner proposes to revoke the notice of approval 
issued to an applicant, the Commissioner will advise the applicant in 
writing of the proposed revocation and of the reasons therefor.
    (B) Within 60 days after the receipt of such written advice, the 
applicant may protest the proposed revocation by submitting a written 
statement of facts, law, and arguments opposing such revocation to 
address prescribed by the Commissioner in revenue rulings, notices, and 
other guidance published in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter. In addition, the applicant 
may request a conference in the National Office.
    (C) If the applicant consents to the proposed revocation, either 
before or after a National Office conference, or if the applicant fails 
to file a timely protest, the Commissioner will revoke the notice of 
approval that was issued to the applicant.
    (D) If, after considering the applicant's protest and any 
information developed in conference, the Commissioner determines that 
the applicant is unwilling or unable to administer fiduciary accounts in 
a manner consistent with the requirements of this paragraph, the 
Commissioner will revoke the notice of approval that was issued to the 
applicant and will furnish the applicant with a written statement of 
findings on which the revocation is based.
    (E) If at any time the Commissioner determines that immediate action 
is necessary to protect the interest of the Internal Revenue Service or 
of any fiduciary account, the notice of approval issued to the applicant 
will be suspended at once, pending a final decision to be based on the 
applicant's protest and any information developed in conference.

[T.D. 7714, 45 FR 52791, Aug. 8, 1980, as amended by T.D. 8635, 60 FR 
65549, Dec. 20, 1995; 61 FR 11307, Mar. 20, 1996]



Sec. 1.408-3  Individual retirement annuities.

    (a) In general. An individual retirement annuity is an annuity 
contract or endowment contract (described in paragraph (e)(1) of this 
section) issued by an insurance company which is qualified to do 
business under the law

[[Page 427]]

of the jurisdiction in which the contract is sold and which satisfies 
the requirements of paragraph (b) of this section. A participation 
certificate in a group contract issued by an insurance company described 
in this paragraph will be treated as an individual retirement annuity if 
the contract satisfies the requirements of paragraph (b) of this 
section; the certificate of participation sets forth the requirements of 
paragraphs (1) through (5) of section 408 (b); the contract provides for 
a separate accounting of the benefit allocable to each participant-
owner; and the group contract is for the exclusive benefit of the 
participant owners and their beneficiaries. For purposes of this title, 
a participant-owner of a group contract described in this paragraph 
shall be treated as the owner of an individual retirement annuity. A 
contract will not be treated as other than an individual retirement 
annuity merely because it provides for waiver of premium on disability. 
An individual retirement annuity contract which satisfies the 
requirements of section 408 (b) need not be purchased under a trust if 
the requirements of paragraph (b) of this section are satisfied. An 
individual retirement endowment contract may not be held under a trust 
which satisfies the requirements of section 408 (a). Distribution of the 
contract is not a taxable event. Distributions under the contract are 
includible in gross income in accordance with the provisions of 
Sec. 1.408-4 (e).
    (b) Requirements--(1) Transferability. The annuity or the endowment 
contract must not be transferable by the owner. An annuity or endowment 
contract is transferable if the owner can transfer any portion of his 
interest in the contract to any person other than the issuer thereof. 
Accordingly, such a contract is transferable if the owner can sell, 
assign, discount, or pledge as collateral for a loan or as security for 
the performance of an obligation or for any other purpose his interest 
in the contract to any person other than the issuer thereof. On the 
other hand, a contract is not to be considered transferable merely 
because the contract contains: a provision permitting the individual to 
designate a beneficiary to receive the proceeds in the event of his 
death, a provision permitting the individual to elect a joint and 
survivor annuity, or other similar provisions.
    (2) Annual premium. Except in the case of a contribution to a 
simplified employee pension described in section 408 (k), the annual 
premium on behalf of any individual for the annuity or the endowment 
contract cannot exceed $1,500. Any refund of premiums must be applied 
before the close of the calendar year following the year of the refund 
toward the payment of future premiums or the purchase of additional 
benefits.
    (3) Distribution. The entire interest of the owner must be 
distributed to him in the same manner and over the same period as 
described in Sec. 1.408-2 (b) (6).
    (4) Distribution upon death. If the owner dies before the entire 
interest has been distributed to him, or if distribution has commenced 
to the surviving spouse, the remaining interest must be distributed in 
the same manner, over the same period, and to the same beneficiaries as 
described in Sec. 1.408-2 (b) (7).
    (5) Nonforfeitability. The entire interest of the owner in the 
annuity or endowment contract must be nonforfeitable.
    (6) Flexible premium. [Reserved]
    (c) Disqualification. If during any taxable year the owner of an 
annuity borrows any money under the annuity or endowment contract or by 
use of such contract (including, but not limited to, pledging the 
contract as security for any loan), such contract will cease to be an 
individual retirement annuity as of the first day of such taxable year, 
and will not be an individual retirement annuity at any time thereafter. 
If an annuity or endowment contract which constitutes an individual 
retirement annuity is disqualified as a result of the preceding 
sentence, an amount equal to the fair market value of the contract as of 
the first day of the taxable year of the owner in which such contract is 
disqualified is deemed to be distributed to the owner. Such owner shall 
include in gross income for such year an amount equal to the fair market 
value of such contract as of such first day. The preceding sentence 
applies even though part of the fair market value of the individual 
retirement

[[Page 428]]

annuity as of the first day of the taxable year is attributable to 
excess contributions which may be returned tax-free under section 
408(d)(4) or 408(d)(5).
    (d) Premature distribution tax on deemed distribution. If the 
individual has not attained age 59\1/2\ before the beginning of the year 
in which the disqualification described in paragraph (c) of this section 
occurs, see section 408(f)(2) for additional tax on premature 
distributions.
    (e) Endowment contracts--(1) Additional requirement for endowment 
contracts. No contract providing life insurance protection issued by a 
company described in paragraph (a) of this section shall be treated as 
an endowment contract for purposes of this section if--
    (i) Such contract matures later than the taxable year in which the 
individual in whose name the contract is purchased attains the age of 
70\1/2\;
    (ii) Such contract is not for the exclusive benefit of such 
individual or his beneficiaries;
    (iii) Premiums under the contract may increase over the term of the 
contract;
    (iv) When all premiums are paid when due, the case value of such 
contract at maturity is less than the death benefit payable under the 
contract at any time before maturity;
    (v) The death benefit does not, at some time before maturity, exceed 
the greater of the cash value or the sum of premiums paid under the 
contract;
    (vi) Such contract does not provide for a cash value;
    (vii) Such contract provides that the life insurance element of such 
contract may increase over the term of such contract, unless such 
increase is merely because such contract provides for the purchase of 
additional benefits;
    (viii) Such contract provides insurance other than life insurance 
and waiver of premiums upon disability; or
    (ix) Such contract is issued after November 6, 1978.
    (2) Treatment of proceeds under endowment contract upon death of 
individual. In the case of the payment of a death benefit under an 
endowment contract upon the death of the individual in whose name the 
contract is purchased, the portion of such payment which is equal to the 
cash value immediately before the death of such individual is not 
excludable from gross income under section 101(a) and is treated as a 
distribution from an individual retirement annuity. The remaining 
portion, if any, of such payment constitutes current life insurance 
protection and is excludable under section 101(a). If a death benefit is 
paid under an endowment contract at a date or dates later than the death 
of the individual, section 101(d) is applicable only to the portion of 
the benefit which is attributable to the amount excludable under section 
101(a).

[T.D. 7714, 45 FR 52792, Aug. 8, 1980]



Sec. 1.408-4  Treatment of distributions from individual retirement arrangements.

    (a) General rule--(1) Inclusion in income. Except as otherwise 
provided in this section, any amount actually paid or distributed or 
deemed paid or distributed from an individual retirement account or 
individual retirement annuity shall be included in the gross income of 
the payee or distributee for the taxable year in which the payment or 
distribution is received.
    (2) Zero basis. Notwithstanding section 1015(d) or any other 
provision of the Code, the basis (or investment in the contract) of any 
person in such an account or annuity is zero. For purposes of this 
section, an assignment of an individual's rights under an individual 
retirement account or an individual retirement annuity shall, except as 
provided in Sec. 1.408-4(g) (relating to transfer incident to divorce), 
be deemed a distribution to such individual from such account or annuity 
of the amount assigned.
    (b) Rollover contribution--(1) To individual retirement arrangement. 
Paragraph (a)(1) of this section shall not apply to any amount paid or 
distributed from an individual retirement account or individual 
retirement annuity to the individual for whose benefit the account was 
established or who is the owner of the annuity if the entire amount 
received (including the same amount of money and any other property) is 
paid into an individual retirement account, annuity (other than an 
endowment contract), or bond created

[[Page 429]]

for the benefit of such individual not later than the 60th day after the 
day on which he receives the payment or distribution.
    (2) To qualified plan. Paragraph (a)(1) of this section does not 
apply to any amount paid or distributed from an individual retirement 
account or individual retirement annuity to the individual for whose 
benefit the account was established or who is the owner of the annuity 
if--
    (i) No amount in the account or no part of the value of the annuity 
is attributable to any source other than a rollover contribution from an 
employees' trust described in section 401(a) which is exempt from tax 
under section 501(a) or a rollover contribution from an annuity plan 
described in section 403(a) and the earnings on such sums, and
    (ii) The entire amount received (including the same amount of money 
and any other property) represents the entire amount in the account and 
is paid into another such trust or plan (for the benefit of such 
individual) not later than the 60th day after the day on which the 
payment or distribution is received.

This subparagraph does not apply if any portion of the rollover 
contribution described in paragraph (b)(2)(i) of this section is 
attributable to an employees' trust forming part of a plan or an annuity 
under which the individual was an employee within the meaning of section 
401(c)(1) at the time contributions were made on his behalf under the 
plan.
    (3) To section 403(b) contract. [Reserved]
    (4) Frequency limitation. (i) For taxable years beginning on or 
before December 31, 1977, paragraph (b)(1) of this section does not 
apply to any amount received by an individual from an individual 
retirement account, annuity or bond if at any time during the 3-year 
period ending on the day of receipt, the individual received any other 
amount from an individual retirement account, annuity or bond which was 
not includible in his gross income because of the application of 
paragraph (b)(1) of this section.
    (ii) [Reserved]
    (c) Excess contributions returned before due date of return--(1) 
Excess contribution. For purposes of this paragraph, excess 
contributions are the excess of the amounts contributed to an individual 
retirement account or paid for an individual retirement annuity during 
the taxable year over the amount allowable as a deduction under section 
219 or 220 for the taxable year.
    (2) General rule. (i) Paragraph (a)(1) of this section does not 
apply to the distribution of any excess contribution paid during a 
taxable year to an account or annuity if: the distribution is received 
on or before the date prescribed by law (including extensions) for 
filing the individual's return for such taxable year; no deduction is 
allowed under section 219 or section 220 with respect to the excess 
contribution; and the distribution is accompanied by the amount of net 
income attributable to the excess contribution as of the date of the 
distribution as determined under subdivision (ii).
    (ii) The amount of net income attributable to the excess 
contributions is an amount which bears the same ratio to the net income 
earned by the account during the computation period as the excess 
contribution bears to the sum of the balance of the account as of the 
first day of the taxable year in which the excess contribution is made 
and the total contribution made for such taxable year. For purposes of 
this paragraph, the term ``computation period'' means the period 
beginning on the first day of the taxable year in which the excess 
contribution is made and ending on the date of the distribution from the 
account.
    (iii) For purposes of paragraph (c)(2)(ii), the net income earned by 
the account during the computation period is the fair market value of 
the balance of the account immediately after the distribution increased 
by the amount of distributions from the account during the computation 
period, and reduced (but not below zero) by the sum of: (A) the fair 
market value of the balance of the account as of the first day of the 
taxable year in which the excess contribution is made and (B) the 
contributions to the account made during the computation period.

[[Page 430]]

    (3) Time of inclusion. (i) For taxable years beginning before 
January 1, 1977, the amount of net income determined under subparagraph 
(2) is includible in the gross income of the individual for the taxable 
year in which it is received. The amount of net income thus distributed 
is subject to the tax imposed by section 408(f)(1) for the year 
includible in gross income.
    (ii) [Reserved]
    (4) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. On January 1, 1975, A, age 55, who is a calendar-year 
taxpayer, contributes $1,500 to an individual retirement account 
established for his benefit. For 1975, A is entitled to a deduction of 
$1,400 under section 219. For 1975, A does not claim as deductions any 
other items listed in section 62. A's gross income for 1975 is $9,334. 
On April 1, 1976, $107 is distributed to A from his individual 
retirement account. As of such date, the balance of the account is 
$1,498 [$1,605 - $107]. There were no other distributions from the 
account as of such date. The net amount of income earned by the account 
is $105 [$1,498 + $107 - (0 + $1,500)]. The net income attributable to 
the excess contribution is $7. [$105  x  ($100/$1,500)]. A's adjusted 
gross income for 1975 is his gross income for 1975 ($9,334) reduced by 
the amount allowable to A as a deduction under section 219 ($1,400), or 
$7,934. A will include the $7 of the $107 distributed on April 1, 1976, 
in his gross income for 1976. Further, A will pay an additional income 
tax of $.70 for 1976 under section 408(f)(1).

    (d) Deemed distribution--(1) General rule. In any case in which an 
individual retirement account ceases to be an individual retirement 
account by reason of the application of section 408(e)(2), paragraph 
(a)(1) of this section shall apply as if there were a distribution on 
the first day of the taxable year in which such account ceases to be an 
individual retirement account of an amount equal to the fair market 
value on such day of all of the assets in the account on such day. In 
the case of a deemed distribution from an individual retirement annuity, 
see Sec. 1.408-3(d).
    (2) Using account as security. In any case in which an individual 
for whose benefit an individual retirement account is established uses, 
directly or indirectly, all or any portion of the account as security 
for a loan, paragraph (a)(1) of this section shall apply as if there 
were distributed on the first day of the taxable year in which the loan 
was made an amount equal to that portion of the account used as security 
for such loan.
    (e) Distribution of annuity contracts. Paragraph (a)(1) of this 
section does not apply to any annuity contract which is distributed from 
an individual retirement account and which satisfies the requirements of 
paragraphs (b) (1), (3), (4) and (5) of section 408. Amounts distributed 
under such contracts will be taxable to the distributee under section 
72. For purposes of applying section 72 to a distribution from such a 
contract, the investment in such contract is zero.
    (f) Treatment of assets distributed from an individual retirement 
account for the purchase of an endowment contract. Under section 
408(e)(5), if all, or any portion, of the assets of an individual 
retirement account are used to purchase an endowment contract described 
in Sec. 1.408-3(e) for the benefit of the individual for whose benefit 
the account is established--
    (1) The excess, if any, of the total amount of assets used to 
purchase such contract over the portion of the assets attributable to 
life insurance protection shall be treated as a rollover contribution 
described in section 408(d)(3), and
    (2) The portion of the assets attributable to life insurance 
protection shall be treated as a distribution described in paragraph 
(a)(91) of this section, except that the provisions of section 408(f) 
shall not apply to such amount.
    (g) Transfer incident to divorce--(1) General rule. The transfer of 
an individual's interest, in whole or in part, in an individual 
retirement account, individual retirement annuity, or a retirement bond, 
to his former spouse under a valid divorce decree or a written 
instrument incident to such divorce shall not be considered to be a 
distribution from such an account or annuity to such individual or his 
former spouse; nor shall it be considered a taxable transfer by such 
individual to his former spouse notwithstanding any other provision of 
Subtitle A of the Code.
    (2) Spousal account. The interest described in this paragraph (g) 
which is

[[Page 431]]

transferred to the former spouse shall be treated as an individual 
retirement account of such spouse if the interest is an individual 
retirement account; an individual retirement annuity of such spouse if 
such interest is an individual retirement annuity; and a retirement bond 
of such spouse if such interest is a retirement bond.

[T.D. 7714, 45 FR 52793, Aug. 8, 1980]



Sec. 1.408-5  Annual reports by trustees or issuers.

    (a) In general. The trustee of an individual retirement account or 
the issuer of an individual retirement annuity shall make annual 
calendar year reports concerning the status of the account or annuity. 
The report shall contain the information required in paragraph (b) and 
be furnished or filed in the manner and time specified in paragraph (c).
    (b) Information required to be included in the annual reports. The 
annual calendar year report shall contain the following information for 
transactions occurring during the calendar year--
    (1) The amount of contributions;
    (2) The amount of distributions;
    (3) In the case of an endowment contract, the amount of the premium 
paid allocable to the cost of life insurance;
    (4) The name and address of the trustee or issuer; and
    (5) Such other information as the Commissioner may require.
    (c) Manner and time for filing. (1) The annual report shall be 
furnished to the individual on whose behalf the account is established 
or in whose name the annuity is purchased (or the beneficiary of the 
individual or owner). The report shall be furnished on or before the 
30th day of June following the calendar year for which the report is 
required.
    (2) The Commissioner may require the annual report to be filed with 
the Service at the time the Commissioner specifies.
    (d) Penalties. Section 6693 prescribes penalties for failure to file 
the annual report.
    (e) Effective date. This section shall apply to reports for calendar 
years after 1978.
    (f) Reports for years prior to 1979. For years prior to 1979, a 
trustee or issuer shall make reports in the time and manner as the 
Commissioner requires.

[T.D. 7714, 45 FR 52795, Aug. 8, 1980]



Sec. 1.408-6  Disclosure statements for individual retirement arrangements.

    (a) In general--(1) General rule. Trustees and issuers of individual 
retirement accounts and annuities are, under the authority of section 
408(i), required to provide disclosure statements. This section sets 
forth these requirements.
    (2) [Reserved]
    (b)-(c) [Reserved]
    (d) Requirements. (1)--(3) [Reserved]
    (4) Disclosure statements--(i) Under the authority contained in 
section 408(i), a disclosure statement shall be furnished in accordance 
with the provisions of this subparagraph by the trustee of an individual 
retirement account described in section 408(a) or the issuer of an 
individual retirement annuity described in section 408(b) or of an 
endowment contract described in section 408(b) to the individual 
(hereinafter referred to as the ``benefited individual'') for whom such 
an account, annuity, or contract is, or is to be, established.
    (ii)(A)(1) The trustee or issuer shall furnish, or cause to be 
furnished, to the benefited individual, a disclosure statement 
satisfying the requirements of subdivisions (iii) through (viii) of this 
subparagraph, as applicable, and a copy of the governing instrument to 
be used in establishing the account, annuity, or endowment contract. The 
copy of such governing instrument need not be filled in with financial 
and other data pertaining to the benefited individual; however, such 
copy must be complete in all other respects. The disclosure statement 
and copy of the governing instrument must be received by the benefited 
individual at least seven days preceding the earlier of the date of 
establishment or purchase of the account, annuity, or endowment 
contract. A disclosure statement or copy of the governing instrument 
required by this subparagraph may be received by the benefited 
individual less than seven days preceding, but no later than, the 
earlier of the date of establishment or purchase, if the benefited 
individual is permitted to revoke the account, annuity, or endowment 
contract pursuant to a procedure which

[[Page 432]]

satisfies the requirements of subdivision (ii)(A)(2) of this 
subparagraph.
    (2) A procedure for revocation satisfies the requirements of this 
subdivision (ii)(A)(2) of this subparagraph if the benefited individual 
is permitted to revoke the account, or endowment contract by mailing or 
delivering, at his option, a notice of revocation on or before a day not 
less than seven days after the earlier of the date of establishment or 
purchase and, upon revocation, is entitled to a return of the entire 
amount of the consideration paid by him for the account, annuity, or 
endowment contract without adjustment for such items as sales 
commissions, administrative expenses or fluctuation in market value. The 
procedure may require that the notice be in writing or that it be oral, 
or it may require both a written and an oral notice. If an oral notice 
is required or permitted, the procedure must permit it to be delivered 
by telephone call during normal business hours. If a written notice is 
required or permitted, the procedure must provide that, if mailed, it 
shall be deemed mailed on the date of the postmark (or if sent by 
certified or registered mail, the date of certification or registration) 
if it is deposited in the mail in the United States in an envelope, or 
other appropriate wrapper, first class postage prepaid, properly 
addressed.
    (B) If after a disclosure statement has been furnished, or caused to 
be furnished, to the benefited individual pursuant to paragraph 
(d)(4)(ii)(A) of this section and--
    (1) On or before the earlier of the date of establishment or 
purchase, or
    (2) On or before the last day on which the benefited individual is 
permitted to revoke the account, annuity, or endowment contract (if the 
benefited individual has a right to revoke the account, annuity, or 
endowment contract pursuant to the rules of subdivision (ii)(A) of this 
subparagraph).

there becomes effective a material adverse change in the information set 
forth in such disclosure statement or a material change in the governing 
instrument to be used in establishing the account, annuity, or contract, 
the trustee or issuer shall furnish, or cause to be furnished, to the 
benefited individual such amendments to any previously furnished 
disclosure statement or governing instrument as may be necessary to 
adequately inform the benefited individual of such change. The trustee 
or issuer shall be treated as satisfying this subdivision (ii)(B) of 
this subparagraph only if material required to be furnished by this 
subdivision is received by the benefited individual at least seven days 
preceding the earlier of the date of establishment or purchase of the 
account, annuity, or endowment contract or if the benefited individual 
is permitted to revoke the account, annuity, or endowment contract on or 
before a date not less than seven days after the date on which such 
material is received, pursuant to a procedure for revocation otherwise 
satisfying the provisions of subdivision (ii)(A)(2) of this 
subparagraph.
    (C) If the governing instrument is amended after the account, 
annuity, or endowment contract is no longer subject to revocation 
pursuant to subdivision (ii)(A) or (B) of this subparagraph, the trustee 
or issuer shall not later than the 30th day after the later of the date 
on which the amendment is adopted or becomes effective, deliver or mail 
to the last known address of the benefited individual a copy of such 
amendment and, if such amendment affects a matter described in 
subdivisions (iii) through (viii) of this subparagraph, a disclosure 
statement with respect to such matter meeting the requirements of 
subdivision (iv) of this subparagraph.
    (D) For purposes of subdivision (ii) (A) and (B) of this 
subparagraph, if a disclosure statement, governing instrument, or an 
amendment to either, is mailed to the benefited individual, it shall be 
deemed (in the absence of evidence to the contrary) to be received by 
the benefited individual seven days after the date of mailing.
    (E) In the case of a trust described in section 408(c) (relating to 
certain retirement savings arrangements for employees or members of 
associations of employees), the following special rules shall be 
applied:
    (1) For purposes of this subparagraph, references to the benefited 
individual's account, annuity, or endowment contract shall refer to the 
benefited individual's interest in such trust, and

[[Page 433]]

    (2) The provisions of subdivision (ii) of this subparagraph shall be 
applied by substituting ``the date on which the benefited individual's 
interest in such trust commences'' for ``the earlier of the date of 
establishment or purchase'' wherever it appear therein.
    Thus, for example, if an employer establishes a trust described in 
section 408(c) for the benefit of employees, and the trustee furnishes 
an employee with a disclosure statement and a copy of the governing 
instrument (as required by this subparagraph) on the date such 
employee's interest in the trust commences, such employee must be given 
a right to revoke such interest within a period of at least seven days. 
If any contribution has been made within such period (whether by the 
employee or by the employer), the full amount of such contribution must 
be paid to such employee pursuant to subdivision (ii)(A)(2) of this 
subparagraph.
    (iii) The disclosure statement required by this subparagraph shall 
set forth in nontechnical language the following matters as such matters 
relate to the account, annuity, or endowment contract (as the case may 
be);
    (A) Concise explanations of--
    (1) The statutory requirements prescribed in section 408(a) 
(relating to an individual retirement account) or section 408(b) 
(relating to an individual retirement annuity and an endowment 
contract), and any additional requirements (whether or not required by 
law) that pertain to the particular retirement savings arrangement.
    (2) The income tax consequences of establishing an account, annuity, 
or endowment contract (as the case may be) which meets the requirements 
of section 408(a) relating to an individual retirement account) or 
section 408(b) (relating to an individual retirement annuity and an 
endowment contract), including the deductibility of contributions to, 
the tax treatment of distributions (other than premature distributions) 
from, the availability of income tax free rollovers to and from, and the 
tax status of such account, annuity, or endowment contract.
    (3) The limitations and restrictions on the deduction for retirement 
savings under section 219, including the ineligibility of certain 
individuals who are active participants in a plan described in section 
219(b)(2)(A) or for whom amounts are contributed under a contract 
described in section 219(b)(2)(B) to make deductible contributions to an 
account or for an annuity or endowment contract.
    (4) The circumstances under which the benefited individual may 
revoke the account, annuity, or endowment contract, and the procedure 
therefor (including the name, address, and telephone number of the 
person designated to receive notice of such revocation). Such 
explanation shall be prominently displayed at the beginning of the 
disclosure statement.
    (B) Statements to the effect that--
    (1) If the benefited individual or his beneficiary engages in a 
prohibited transaction, described in section 4975(c) with respect to an 
individual retirement account, the account will lose its exemption from 
tax by reason of section 408(e)(2)(A), and the benefited individual must 
include in gross income, for the taxable year during which the benefited 
individual or his beneficiary engages in the prohibited transaction the 
fair market value of the account.
    (2) If the owner of an individual retirement annuity or endowment 
contract described in section 408(b) borrows any money under, or by use 
of, such annuity or endowment contract, then, under section 408(e)(3), 
such annuity or endowment contract loses its section 408(b) 
classification, and the owner must include in gross income, for the 
taxable year during which the owner borrows any money under, or by use 
of, such annuity or endowment contract, the fair market value of the 
annuity or endowment contract.
    (3) If a benefited individual uses all or any portion of an 
individual retirement account as security for a loan, then, under 
section 408(e)(4), the portion so used is treated as distributed to such 
individual and the benefited individual must include such distribution 
in gross income for the taxable year during which he so uses such 
account.
    (4) An additional tax of 10 percent is imposed by section 408(f) on 
distributions (including amounts deemed distributed as the result of a 
prohibited loan or use as security for a loan) made

[[Page 434]]

before the benefited individual has attained age 59\1/2\, unless such 
distribution is made on account of death or disability, or unless a 
rollover contribution is made with such distribution.
    (5) Sections 2039(e) (relating to exemption from estate tax of 
annuities under certain trusts and plans) and 2517 (relating to 
exemption from gift tax of specified transfers of certain annuities 
under qualified plans) apply (including the manner in which such 
sections apply) to the account, annuity, or endowment contract.
    (6) Section 402(a)(2) and (e) (relating to tax on lump sum 
distributions) is not applicable to distributions from an account, 
annuity, or endowment contract.
    (7) A minimum distribution is required under section 408(a) (6) or 
(7) and 408(b) (3) or (4) (including a brief explanation of the amount 
of minimum distribution) and that if the amount distributed from an 
account, annuity, or endowment contract during the taxable year of the 
payee is less than the minimum required during such year, an excise tax, 
which shall be paid by the payee, is imposed under section 4974, in an 
amount equal to 50 percent of the excess of the minimum required to be 
distributed over the amount actually distributed during the year.
    (8) An excise tax is imposed under section 4973 on excess 
contributions (including a brief explanation of an excess contribution).
    (9) The benefited individual must file Form 5329 (Return for 
Individual Retirement Savings Arrangement) with the Internal Revenue for 
each taxable year during which the account, annuity, or endowment 
contract is maintained.
    (10) The account or contract has or has not (as the case may be) 
been approved as to form for use as an account, annuity, or endowment 
contract by the Internal Revenue Service. For purposes of this 
subdivision, if a favorable opinion or determination letter with respect 
to the form of a prototype trust, custodial account, annuity, or 
endowment contract has been issued by the Internal Revenue Service, or 
the instrument which establishes an individual retirement trust account 
or an individual retirement custodial account utilizes the precise 
language of a form currently provided by the Internal Revenue Service 
(including any additional language permitted by such form), such account 
or contract may be treated as approved as to form.
    (11) The Internal Revenue Service approval is a determination only 
as to the form of the account, annuity, or endowment contract, and does 
not represent a determination of the merits of such account, annuity, or 
endowment contract.
    (12) The proceeds from the account, annuity or endowment contract 
may be used by the benefited individual as a rollover contribution to 
another account or annuity or retirement bond in accordance with the 
provisions of section 408(d)(3).
    (13) In the case of an endowment contract described in section 
408(b), no deduction is allowed under section 219 for that portion of 
the amounts paid under the contract for the taxable year properly 
allocable to the cost of life insurance.
    (14) If applicable, in the event that the benefited individual 
revokes the account, annuity, or endowment contract, pursuant to the 
procedure described in the disclosure statement (see subdivision (A)(4) 
of this subdivision (iii)), the benefited individual is entitled to a 
return of the entire amount of the consideration paid by him for the 
account, annuity, or endowment contract without adjustment for such 
items as sales commissions, administrative expenses or fluctuation in 
market value.
    (15) Further information can be obtained from any district office of 
the Internal Revenue Service.
    To the extent that information on the matters described in 
subdivisions (iii) (A) and (B) of this subparagraph is provided in a 
publication of the Internal Revenue Service relating to individual 
retirement savings arrangements, such publication may be furnished by 
the trustee or issuer in lieu of providing information relating to such 
matters in a disclosure statement.
    (C) The financial disclosure required by paragraph (d)(4) (v), (vi), 
and (vii) of this section.
    (iv) In the case of an amendment to the terms of an account, 
annuity, or

[[Page 435]]

endowment contract described in paragraph (d)(4)(i) of this section, the 
disclosure statement required by this subparagraph need not repeat 
material contained in the statement furnished pursuant to paragraph 
(d)(4)(iii) of this section, but it must set forth in nontechnical 
language those matters described in paragraph (d)(4)(iii) of this 
section which are affected by such amendment.
    (v) With respect to an account, annuity, or endowment contract 
described in paragraph (d)(4)(i) of this section (other than an account 
or annuity which is to receive only a rollover contribution described in 
paragraph (d)(4)(vi) of this section and to which no deductible 
contributions will be made), the disclosure statement must set forth in 
cases where either an amount is guaranteed over period of time (such as 
in the case of a nonparticipating endowment or annuity contract), or a 
projection of growth of the value of the account, annuity, or endowment 
contract can reasonably be made (such as in the case of a participating 
endowment or annuity contract (other than a variable annuity) or 
passbook savings account), the following:
    (A) To the extent that an amount is guaranteed,
    (1) The amount, determined without regard to any portion of a 
contribution which is not deductible, that would be guaranteed to be 
available to the benefited individual if (i) level annual contributions 
in the amount of $1,000 were to be made on the first day of each year, 
and (ii) the benefited individual were to withdraw in a single sum the 
entire amount of such account, annuity, or endowment contract at the end 
of each of the first five years during which contributions are to be 
made, at the end of the year in which the benefited individual attains 
the ages of 60, 65, and 70, and at the end of any other year during 
which the increase of the guaranteed available amount is less than the 
increase of the guaranteed available amount during any preceding year 
for any reason other than decrease of cessation of contributions, and
    (2) A statement that the amount described in subdivision (v)(A)(1) 
of this subparagraph is guaranteed, and the period for which guaranteed;
    (B) To the extent a projection of growth of the value of the 
account, annuity, or endowment contract can reasonably be made but the 
amounts are not guaranteed.
    (1) The amount, determined without regard to any portion of a 
contribution which is not deductible, and upon the basis of an earnings 
rate no greater than, and terms no different from, those currently in 
effect, that would be available to the benefited individual if (i) level 
annual contributions in the amount of $1,000 were to be made on the 
first day of each year, and (ii) the benefited individual were to 
withdraw in a single sum the entire amount of such account, annuity, or 
endowment contract at the end of each of the first five years during 
which contributions are to be made, at the end of each of the years in 
which the benefited individual attains the ages of 60, 65, and 70, and 
at the end of any other year during which the increase of the available 
amount is less than the increase of the available amount during any 
preceding year for any reason other than decrease or cessation of 
contributions, and
    (2) A statement that the amount described in paragraph 
(d)(4)(v)(B)(1) of this section is a projection and is not guaranteed 
and a statement of the earnings rate and terms on the basis of which the 
projection is made;
    (C) The portion of each $1,000 contribution attributable to the cost 
of life insurance, which would not be deductible, for each year during 
which contributions are to be made; and
    (D) The sales commission (including any commission attributable to 
the sale of life insurance), if any, to be charged in each year, 
expressed as a percentage of gross annual contributions (including any 
portion attributable to the cost of life insurance) to be made for each 
year.
    (vi) With respect to an account or annuity described in paragraph 
(d)(4)(i) of this section to which a rollover contribution described in 
section 402(a)(5)(A), 403(a)(4)(A), 408(d)(3)(A) or 409(b)(3)(C) will be 
made, the disclosure statement must set forth, in cases where an amount 
is guaranteed over a

[[Page 436]]

period of time (such as in the case of a non-participating annuity 
contract, or a projection of growth of the value of the account or 
annuity can reasonably be made (such as in the case of a participating 
annuity contract (other than a variable annuity) or a passbook savings 
account), the following:
    (A) To the extent guaranteed,
    (1) The amount that would be guaranteed to be available to the 
benefited individual if (i) Such a rollover contribution in the amount 
of $1,000 were to be made on the first day of the year, (ii) No other 
contribution were to be made, and (iii) The benefited individual were to 
withdraw in a single sum the entire amount of such account or annuity at 
the end of each of the first five years after the contribution is made, 
at the end of the year in which the benefited individual attains the 
ages of 60, 65, and 70, and at the end of any other year during which 
the increase of the guaranteed available amount is less than the 
increase of the guaranteed available amount during any preceding year, 
and
    (2) A statement that the amount described in paragraph (d)(vi)(A)(1) 
of this section is guaranteed;
    (B) To the extent that a projection of growth of the value of the 
account or annuity can reasonably be made but the amounts are not 
guaranteed,
    (1) The amount, determined upon the basis of an earnings rate no 
greater than, and terms no different from, those currently in effect, 
that would be available to the benefited individual if (i) such a 
rollover contribution in the amount of $1,000 were to be made on the 
first day of the year, (ii) no other contribution were to be made, and 
(iii) the benefited individual were to withdraw in a single sum the 
entire amount of such account or annuity at the end of each of the first 
five years after the contribution is made, at the end of each of the 
years in which the benefited individual attains the ages 60, 65, 70, and 
at the end of any other year during which the increase of the available 
amount is less than the increase of the available amount during any 
preceding year, and
    (2) A statement that the amount described in paragraph (d)(4)(vi)(B) 
(1) of this section is a projection and is not guaranteed and a 
statement of the earnings rate and terms on the basis of which the 
projection is made; and
    (C) The sales commission, if any, to be charged in each year, 
expressed as a percentage of the assumed $1,000 contribution.
    (vii) With respect to an account, annuity, or endowment contract 
described in paragraph (d)(4)(i) of this section, in all cases not 
subject to paragraph (d)(4) (v) or (vi) of this section (such as in the 
case of a mutual fund or variable annuity), the disclosure statement 
must set forth information described in subdivisions (A) through (C) of 
this subdivisions (vii) based (as applicable with respect to the type or 
types of contributions to be received by the account, annuity, or 
endowment contract) upon the assumption of (1) level annual 
contributions of $1,000 on the first day of each year, (2) a rollover 
contribution of $1,000 on the first day of the year and no other 
contributions, or (3) a rollover contribution of $1,000 on the first day 
of the year plus level annual contributions of $1,000 on the first day 
of each year.
    (A) A description (in nontechnical language) with respect to the 
benefited individual's interest in the account, annuity, or endowment 
contract, of:
    (1) Each type of charge, and the amount thereof, which may be made 
against a contribution,
    (2) The method for computing and allocating annual earnings, and
    (3) Each charge (other than those described in complying with 
paragraph (d)(4)(vii)(A)(1) of this section) which may be applied to 
such interest in determining the net amount of money available to the 
benefited individual and the method of computing each such charge;
    (B) A statement that growth in value of the account, annuity, or 
endowment contract is neither guaranteed nor projected; and
    (C) The portion of each $1,000 contribution attributable to the cost 
of life insurance, which would not be deductible, for every year during 
which contributions are to be made.

[[Page 437]]

    (viii) A disclosure statement, or an amendment thereto, furnished 
pursuant to the provisions of this subparagraph may contain information 
in addition to that required by paragraph (d)(4)(iii) through (vii) of 
this section. However, such disclosure statement will not be considered 
to comply with the provisions of this subparagraph if the substance of 
such additional material or the form in which it is presented causes 
such disclosure statement to be false or misleading with respect to the 
information required to be disclosed by this paragraph.
    (ix) The provisions of section 6693, relating to failure to provide 
reports on individual retirement accounts or annuities, shall apply to 
any trustee or issuer who fails to furnish, or cause to be furnished, a 
disclosure statement, a copy of the governing instrument, or an 
amendment to either, as required by this paragraph.
    (x) This section shall be effective for disclosure statements and 
copies of governing instruments mailed, or delivered without mailing, 
after February 14, 1977.
    (xi) This section does not reflect the amendments made by section 
1501 of the Tax Reform Act of 1976 (90 Stat. 1734) relating to 
retirement savings for certain married individuals.

[T.D. 7714, 45 FR 52795, Aug. 8, 1980; 45 FR 56802, Aug. 26, 1980]



Sec. 1.408-7  Reports on distributions from individual retirement plans.

    (a) Requirement of report. The trustee of an individual retirement 
account or the issuer of an individual retirement annuity who makes a 
distribution during any calendar year to an individual from such account 
or under such annuity shall make a report on Form W-2P (in the case of 
distributions that are not total distributions) or Form 1099R (in the 
case of total distributions), and their related transmittal forms, for 
such year. The return must show the name and address of the person to 
whom the distribution was made, the aggregate amount of such 
distribution, and such other information as is required by the forms.
    (b) Amount subject to this section. The amounts subject to reporting 
under paragraph (a) include all amounts distributed or made available to 
which section 408(d) applies.
    (c) Time and place for filing. The report required under this 
section for any calendar year shall be filed after the close of that 
year and on or before February 28 of the following year with the 
appropriate Internal Revenue Service Center.
    (d) Statement to recipients. (1) Each trustee or issuer required to 
file Form 1099R or Form W-2P under this section shall furnish to the 
person whose identifying number is (or should be) shown on the forms a 
copy of the form.
    (2) Each statement required by this paragraph to be furnished to 
recipients shall be furnished to such person after November 30 of the 
year of the distribution and on or before January 31 of the following 
year.
    (e) Effective date. This section is effective for calendar years 
beginning after December 31, 1977.

[T.D. 7714, 45 FR 52798, Aug. 8, 1980]



Sec. 1.409-1  Retirement bonds.

    (a) In general. Section 409 authorizes the issuance of bonds under 
the Second Liberty Bond Act the purchase price of which would be 
deductible under section 219. Section 409 also prescribes the tax 
treatment of such bonds. See paragraph (b) of this section.
    (b) Income tax treatment of bonds--(1) General rule. Except as 
provided in paragraph (b)(2) of this section, the entire proceeds upon 
redemption of a retirement bond described in section 409(a) shall be 
included in the gross income of the taxpayer entitled to such proceeds. 
If a bond has not been tendered for redemption by the registered owner 
before the close of the taxable year in which he attains age 70\1/2\, he 
must include in his gross income for such taxable year the amount of the 
proceeds he would have received if the bond had been redeemed at age 
70\1/2\. The provisions of sections 72 and 1232 do not apply to a 
retirement bond.
    (2) Exceptions. (i) If a retirement bond is redeemed within 12 
months after the issue date, the proceeds are excluded from gross income 
if no deduction is allowed under section 219 on account of the purchase 
of such bond. For definition of issue date, see 31 CFR 346.1(c).

[[Page 438]]

    (ii) If a retirement bond is redeemed after the close of the taxable 
year in which the registered owner attains age 70\1/2\ the proceeds from 
the redemption of the bond are excludable from the gross income of the 
registered owner or his beneficiary to the extent that such proceeds 
were includible in the gross income of the registered owner for such 
taxable year.
    (iii) If a retirement bond is surrendered for reissuance in the same 
or lesser face amount, the difference between current redemption value 
of the bond surrendered for reissuance and the current surrender value 
of the bond reissued is includible in the gross income of the registered 
owner.
    (3) Basis. The basis of a retirement bond is zero.
    (c) Rollover. The first sentence of paragraph (b)(1) of this section 
shall not apply in any case in which a retirement bond is redeemed by 
the registered owner before the close of the taxable year in which he 
attains the age of 70\1/2\ if he transfers the entire amount of the 
proceeds of such redemption to--
    (1) An individual retirement account described in section 408(a) or 
an individual retirement annuity described in section 408(b) (other than 
an endowment contract described in Sec. 1.408-3(e)), or
    (2) An employees' trust which is described in section 401(a) which 
is exempt from tax under section 501(a), or an annuity plan described in 
section 403(a), for the benefit of the registered owner, on or before 
the 60th day after the day on which he received the proceeds of such 
redemption. This subparagraph shall not apply in the case of a transfer 
to a trust or plan described in (c)(2) of this section unless no part of 
the purchase price of the retirement bond redeemed is attributable to 
any source other than a rollover contribution from such an employees' 
trust or annuity plan (other than an annuity plan or employees' trust 
forming part of a plan under which the individual was an employee within 
the meaning of section 401(c)(1) at the time contributions were made on 
his behalf under the plan).
    (d) Additional tax--(1) Early redemption. Except as provided in 
paragraph (d)(2) of this section, under section 409(c) if a retirement 
bond is redeemed by the registered owner before he attains age 59\1/2\, 
his tax under chapter 1 of the Code is increased by an amount equal to 
10 percent of the proceeds of the redemption includible in his gross 
income for the taxable year. Except in the case of the credits allowable 
under sections 31, 39, or 42, no credit can be used to offset the tax 
described in the preceding sentence.
    (2) Limitations. Paragraph (d)(1) of this section shall not apply 
if--
    (i) During the taxable year of the registered owner in which a 
retirement bond is redeemed, the registered owner becomes disabled 
within the meaning of section 72(m)(7), or
    (ii) A retirement bond is tendered for redemption in accordance with 
paragraph (b)(2)(i) of this section.

[T.D. 7714, 45 FR 52799, Aug. 8, 1980]



Sec. 1.410(a)-1  Minimum participation standards; general rules.

    (a) In general. A plan is not a qualified plan (and a trust forming 
a part of such plan is not a qualified trust) unless the plan 
satisfies--
    (1) The minimum age and service requirements of section 410(a)(1) 
and Sec. 1.410(a)-3,
    (2) The maximum age requirements of section 410(a)(2) and 
Sec. 1.410(a)-4, and
    (3) The minimum coverage requirements of section 410(b)(1) and 
Sec. 1.410(b)-1.
    (b) Organization of regulations relating to minimum participation 
standards--(1) General rules. This section prescribes general rules 
relating to the minimum participation standards provided by Section 410.
    (2) Effective dates. Section 1.410(a)-2 provides rules under section 
1017 of the Employee Retirement Income Security Act of 1974 relating to 
effective dates under section 410.
    (3) Age and service conditions. Section 1.410(a)-3 provides rules 
under section 410(a)(1) relating to minimum age and service conditions.
    (4) Maximum age and time of participation. Section 1.410(a)-4 
provides rules under section 410(a) (2) and (4) relating to maximum age 
and time of participation.

[[Page 439]]

    (5) Year of service; breaks in service. For rules relating to years 
of service and breaks in service, see 29 CFR Part 2530 (Department of 
Labor regulations relating to minimum standards for employee pension 
benefit plans). See Sec. 1.410(a)-5 for rules under section 410(a)(3)(B) 
relating to seasonal industries and for certain rules under section 
410(a)(5) relating to breaks in service.
    (6) Breaks in service. Section 1.410(a)-6 provides special rules 
under section 1017(f) of the Employee Retirement Income Security Act of 
1974 relating to amendment of break in service rules.
    (7) Elapsed time. Section 1.410 (a)-7 provides rules under sections 
410 and 411 relating to the elapsed time method of crediting years of 
service.
    (8) Coverage. Section 1.410(b)-1 provides rules relating to the 
minimum coverage requirements provided by section 410(b)(1).
    (9) Church election. Section 1.410(d)-1 provides rules relating to 
the election by a church to have participation, vesting, funding, etc., 
provisions apply.
    (c) Application of participation standards to certain plans--(1) 
General rule. Except as provided in subparagraph (2) of this paragraph, 
section 410 does not apply to--
    (i) A governmental plan (within the meaning of section 414(d) and 
the regulations thereunder),
    (ii) A church plan (within the meaning of section 414(e) and the 
regulations thereunder) which has not made the election provided by 
section 410(d) and the regulations thereunder,
    (iii) A plan which has not provided for employer contributions at 
any time after September 2, 1974, and
    (iv) A plan established and maintained by a society, order, or 
association described in section 501(c) (8) or (9), if no part of the 
contributions to or under such plan are made by employers of 
participants in such plan.
    (2) Participation requirements. A plan described in subparagraph (1) 
of this paragraph shall, for purposes of section 401(a), be treated as 
meeting the requirements of section 410 if such plan meets the coverage 
requirements resulting from the application of section 401(a)(3) as in 
effect on September 1, 1974. Such coverage requirements include the 
rules in Sec. 1.410(b)-1(d) (special rules relating to minimum coverage 
requirements), that interpret statutory provisions substantially 
identical to section 401(a)(3) as in effect on September 1, 1974. In 
applying the rules of that paragraph (d) to plans described in this 
paragraph (c) employees whose principal duties consist in supervising 
the work of other employees shall be treated as officers, shareholders, 
and highly compensated employees.
    (d) Supersession. Section 11.410(a)-1 through 11.410(d)-1 inclusive, 
of the Temporary Income Tax Regulation under the Employee Retirement 
Income Security Act of 1974 are superseded by this section and 
Secs. 1.410(a)-2 through 1.410(d)-1.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47193, Sept. 20, 1977, as amended by T.D. 7703, 45 FR 
40980, June 17, 1980; T.D. 7735, 45 FR 74722, Nov. 12, 1980]



Sec. 1.410(a)-2  Effective dates.

    (a) Plans not in existence on January 1, 1974. Under section 1017(a) 
of the Employee Retirement Income Security Act of 1974, in the case of a 
plan which was not in existence on January 1, 1974, section 410 and the 
regulations thereunder apply for plan years beginning after September 2, 
1974. See paragraph (c) of this section for time plan is considered in 
existence.
    (b) Plans in existence on January 1, 1974. Under section 1017(b) of 
the Employee Retirement Income Security Act of 1974, in the case of a 
plan which was in existence on January 1, 1974, section 410 and the 
regulations thereunder apply for plan years beginning after December 31, 
1975. See paragraph (c) of this section for time plan is considered to 
be in existence.
    (c) Time of plan existence--(1) General rule. For purposes of this 
section, a plan is considered to be in existence on a particular day 
if--
    (i) The plan on or before that day was reduced to writing and 
adopted by the employer (including, in the case of a corporate employer, 
formal approval by the employer's board of directors and, if required, 
shareholder), even though no amounts had been contributed under the plan 
as of such day, and
    (ii) The plan was not terminated on or before that day.

[[Page 440]]

    (2) Collectively bargained plan. Notwithstanding subparagraph (1) of 
this paragraph, a plan described in section 413(a), relating to a plan 
maintained pursuant to a collective bargaining agreement, is considered 
to be in existance on a particular day if--
    (i) On or before that day there is a legally enforceable agreement 
to establish such a plan signed by the employer, and
    (ii) The employer contributions to be made to the plan are set forth 
in the agreement.
    (3) Special rule. If a plan is considered to be in existence on 
January 1, 1974, under subparagraph (1) of this paragraph, any other 
plan with which such existing plan is merged or consolidated shall also 
be considered to be in existence on such date.
    (d) Certain existing plans may elect new provisions--(1) In general. 
The plan administrator (as defined in section 414(g)) of a plan that was 
in existence on January 1, 1974, may elect to have the provisions of the 
Code relating to participation, vesting, funding, and form of benefit 
(as in effect from time to time) apply to a plan year selected by the 
plan year selected by the plan administrator which begins after 
September 2, 1974, but before the otherwise applicable effective dates 
determined under section 1017 (b) or (c), 1021, or 1024 of the Employee 
Retirement Income Security Act of 1974, and to all subsequent plan 
years. The provisions referred to are the amendments to the Code made by 
sections 1011, 1012, 1013, 1015, 1016(a) (1) through (11) and (13) 
through (27), 1021, and 1022(b) of the Employee Retirement Income 
Security Act of 1974.
    (2) Election is irrevocable. Any election made under this paragraph, 
once made shall be irrevocable.
    (3) Procedure and time for making election. An election under this 
paragraph shall be made by attaching a statement to either the annual 
return required under section 6058(a) (or an amended return) with 
respect to the plan which is filed for the first plan year for which the 
election is effective or to a written request for a determination letter 
relating to the qualification of the plan under section 401(a), 403(a), 
or 405(a) of the Code and, if trusteed, the exempt status under section 
501(a) of the Code of a trust consituting a part of the plan. If the 
election is made with a written request for a determination letter, the 
election may be conditioned upon issuance of a favorable determination 
letter and will become irrevocable upon issuance of such letter. The 
statement shall indicate that the election is made under section 1017(d) 
of the Employee Retirement Income Security Act of 1974 and the first 
plan year for which the election is effective.
    (e) Examples. The rules of this section are illustrated by the 
following examples:

    Example (1). A plan is adopted on January 2, 1974, effective as of 
Janurary 1, 1974. The plan is not considered to have been in existence 
on Janurary 1, 1974.
    Example (2). A plan was in existence on January 1, 1974, and was 
amended on November 1, 1974, to increase benefits. The fact that the 
plan was amended is not relevant and the amended plan is considered to 
be in existence on January 1, 1974.
    Example (3). (i) A subsidiary business corporation is a member of a 
controlled group of corporations within the meaning of IRC section 
1563(a). On November 1, 1974, the plan of the parent corporation is 
amended to provide coverage for employees of the subsidiary corporation. 
This amendment of the parent corporation's plan does not affect the 
effective date of section 410 with respect to the parent corporation's 
plan. No distinction is made for this purpose between employees of the 
parent corporation and employees of the subsidiary corporation.
    (ii) If the subsidiary adopted a separate plan on November 1, 1974, 
under paragraph (a) of this section, section 410 would apply to that 
plan for its first plan year beginning after September 2, 1974. However, 
the adoption of a different plan by the subsidiary would not affect the 
time section 410 applies to the plan of the parent corporation. If, 
instead of adopting its own separate plan, the subsidiary merely 
executed an adoption agreement under the terms of the parent plan 
providing that a subsidiary, upon the execution of an adoption 
agreement, will become part of the parent plan, the effective date of 
section 410 with respect to such plan will not be affected by the 
adoption of the plan by the subsidiary.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47194, Sept. 20, 1977]



Sec. 1.410(a)-3  Minimum age and service conditions.

    (a) General rule. Except as provided by paragraph (b) or (c) of this 
section,

[[Page 441]]

a plan is not a qualified plan (and a trust forming a part of such plan 
is not a qualified trust) if the plan requires, as a condition of 
participation in the plan, that an employee complete a period of service 
with the employer or employers maintaining the plan extending beyond the 
later of--
    (1) Age 25. The date on which the employee attains the age of 25; or
    (2) One year of service. The date on which the employee completes 1 
year of service.
    (b) Special rule for plan with 3-year 100 percent vesting. A plan 
which provides that after not more than 3 years of service each 
participant's right to his accrued benefit under the plan is completely 
nonforfeitable (within the meaning of section 411 and the regulations 
thereunder) at the time such benefit accrues satisfies the requirements 
of paragraph (a) of this section if the period of service required by 
the plan as a condition of participation does not extend beyond the 
later of--
    (1) Age 25. The date on which the employee attains the age of 25; or
    (2) Three years of service. The date on which the employee completes 
3 years of service.
    (c) Special rule for employees of certain educational institutions. 
A plan maintained exclusively for employees of an educational 
institution (as defined in section 170(b)(1)(A)(ii)) by an employer 
exempt from tax under section 501(a) which provides that after 1 year of 
service each participant's right to his accrued benefit under the plan 
is completely nonforfeitable (within the meaning of section 411 and the 
regulations thereunder) at the time such benefit accrues satisfies the 
requirements of paragraph (a) of this section if the period of service 
required by the plan as a condition of participation does not extend 
beyond the later of--
    (1) Age 30. The date on which the employee attains the age of 30; or
    (2) One year of service. The date on which the employee completes 1 
year of service.
    (d) Other conditions. Section 410(a), Sec. 1.410(a)-4, and this 
section relate solely to age and service conditions and do not preclude 
a plan from establishing conditions, other than conditions relating to 
age or service, which must be satisfied by plan participants. For 
example, such provisions would not preclude a qualified plan from 
requiring, as a condition of participation, that an employee be employed 
within a specified job classification. See section 410(b) and the 
regulations thereunder for rules with respect to coverage of employees 
under qualified plans.
    (e) Age and service requirements--(1) General rule. For purposes of 
applying the rules of this section, plan provisons may be treated as 
imposing age or service requirements even though the provisions do not 
specifically refer to age or service. Plan provisions which have the 
effect of requiring an age or service requirement with the employer or 
employers maintaing the plan will be treated as if they imposed an age 
or service requirement. In general, a plan under which an employee 
cannot participate unless he retires will impose an age and service 
requirement. However, a plan may provide benefits which supplement 
benefits provided for employees covered under a pension plan, as defined 
in section 3(2) of the Employee Retirement Income Security Act of 1974, 
satisfying the requirements of section 410(a)(1) without violating the 
age and service rules.
    (2) Examples. The rules of this paragraph are illustrated by the 
following examples:
    Example (1). Corporation A is divided into two divisions. In order 
to work in division 2 an employee must first have been employed in 
division 1 for 5 years. A plan provision which required division 2 
employment for participation will be treated as a service requirement 
because such a provision has the effect of requiring 5 years of service.
    Example (2). Plan B requires as a condition of participation that 
each employee have had a driver's license for 15 years or more. This 
provision will be treated as an age requirement because such a provision 
has the effect of requiring an employee to attain a specified age.
    Example (3). A plan which requires 1 year of service as a condition 
of participation also excludes a part-time or seasonal employee if his 
customary employment is for not more than 20 hours per week or 5 months 
in any plan year. The plan does not qualify because the provision could 
result in the exclusion by reason of a minimum service requirement of an 
employee who has completed a year of service. The plan would not qualify 
even though after excluding all such employees,

[[Page 442]]

the plan satisfied the coverage requirements of section 410(b).
    Example (4). Employer A establishes a plan which covers employees 
after they retire and does not cover current employees unless they 
retire. Any employee who works past age 60 is treated as retired. The 
plan fails to satisfy the requirements of section 410(a) because the 
plan imposes a minimum age and service requirement in excess of that 
allowed by this section.
    Example (5). Employer B establishes plan X, which provides that 
employees covered by qualified plan Y will receive benefits 
supplementing their benefits under plan Y to take into account cost of 
living increases after retirement. Plan X is not treated as imposing an 
age of service requirement.
    Example (6). Employer C establishes a qualified plan satisfying the 
minimum age and service requirements. At a later time, entry into the 
plan is frozen so that employees not covered at that time cannot 
participate in the plan. The limitation on new participants is not 
treated as imposing a minimum age and service requirement.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47194, Sept. 20, 1977]



Sec. 1.410(a)-3T  Minimum age and service conditions (temporary).

    (a) [Reserved]
    (b) Special rule for plan with 2-year 100 percent vesting. A plan 
which provides that after not more than 2 years of service each 
participant's right to his or her accrued benefit under the plan is 
completely nonforeitable (within the meaning of section 411 and the 
regulations thereunder) at the time such benefit accrues satisfies the 
requirements of paragraph (a) of this section if the period of service 
required by the plan as a condition of participation does not extend 
beyond the later of--
    (1) [Reserved]
    (2) Two years of service. The date on which the employee completes 2 
years of service. For employees not described in Sec. 1.411(a)-3T(e)(1), 
which describes employees with one hour of service in any plan year 
beginning after December 31, 1988, or later in the case of certain 
collectively bargained plans, the preceding sentence shall be applied by 
substituting ``3 years of service'' for ``2 years of service''.

[T.D. 8170, 53 FR 239, Jan. 6, 1988]



Sec. 1.410(a)-4  Maximum age conditions and time of participation.

    (a) Maximum age conditions--(1) General rule. A plan is not a 
qualified plan (and a trust forming a part of such plan is not a 
qualified trust) if the plan excludes from participation (on the basis 
of age) an employee who has attained an age specified by the plan 
unless--
    (i) The plan is a defined benefit plan or a target benefit plan, and
    (ii) The employee begins employment with the employer after the 
employee has attained an age specified by the plan, which age is not 
more than 5 years before normal retirement age (within the meaning of 
section 411(a)(8) and Sec. 1.411(a)-7.

For purposes of this paragraph, a target benefit plan is a defined 
contribution plan under which the amount of employer contributions 
allocated to each participant is determined under a plan formula which 
does not allow employer discretion and on the basis of the amount 
necessary to provide a target benefit specified by the plan for such 
participant. Such target benefit must be the type of benefit which is 
provided by a defined benefit plan and the targeted benefit must not 
discriminate in favor of employees who are officers, shareholders, or 
highly compensated. For purposes of this paragraph, in the determination 
of the time an employee begins employment, any such time which is 
included in a period of service which may be disregarded under the break 
in service rules need not be taken into account.
    (2) Examples. The rules provided by this paragraph are illustrated 
by the following examples:

    Example (1). A defined benefit plan provides that an employee will 
become a participant upon completion of 3 years of service if at such 
time the employee is less than age 60. The normal retirement age under 
the plan is age 65. The plan also provides full and immediate vesting 
for each of the plan's participants. Under the plan, an employee hired 
at age 58 would be denied participation on account of service for the 
first 3 years and on account of maximum age for the remaining years even 
though the employee was hired more than 5 years prior to the normal 
retirement date. The plan therefore does not satisfy section 410(a)(2).
    Example. (2). A defined benefit plan provides a normal retirement 
age of the later of

[[Page 443]]

age 65 or completion of 10 years of service. Because no employee could 
ever be hired within 5 years of his normal retirement age, the plan 
could not exclude employees for being over a specified age.
    Example (3). Prior to the effective date of section 410, a defined 
benefit plan with a normal retirement age of 65 contained a maximum age 
55 requirement for participation. Because of the maximum age 
requirement, and employee hired at age 58 was excluded from the plan. 
This employee is age 61 at the time that section 410 first applies to 
the plan. The employee cannot be excluded from participation because of 
age. The exclusion under section 410(a)(2) is not applicable in this 
instance because the employee's age at the time of hire, 58, was not 
within 5 years of the normal retirement age specified in the plan.
    Example (4).  Employee A was hired at age 50 and participated in a 
defined benefit plan until separating from service at age 55 with 5 
years of service and with no vested benefit. At age 61, employee A was 
rehired within 5 years of the normal retirement age of 65 after he 
incurred 6 consecutive breaks in service. Because A's consecutive number 
of 1-year breaks (6) exceeds his years of service prior to such breaks 
(5), his service before the breaks may be disregarded. Consequently, A's 
initial employment date falling within such period may be disregarded 
and the plan could exclude A on account of his age because his 
employment commenced within 5 years of normal retirement age.

    (b) Time of participation--(1) General rule. A plan is not a 
qualified plan (and a trust forming a part of such plan is not a 
qualified trust) unless under the plan any employee who has satisfied 
the applicable minimum age and service requirements specified in 
Sec. 1.410(a)-3, and who is otherwise entitled to participate in the 
plan, commences participation in the plan no later than the earlier of--
    (i) The first day of the first plan year beginning after the date on 
which such employee first satisfied such requirements, or
    (ii) The date 6 months after the date on which he first satisfied 
such requirements,

unless such employee was separated from service and has not returned 
before the date referred to in subdivision (i) or (ii), whichever is 
applicable. If such separated employee returns to service after either 
of such dates without incurring a 1-year break in service, the employee 
must commence participation immediately upon his return. In the case of 
a plan using the elapsed time method described in Sec. 1.410(a)-7, such 
an employee who has a period of absence commencing before the date 
referred to in subdivision (i) or (ii) (whichever is applicable) must 
commence participation as of such applicable date no later than the date 
such absence ended. However, if an employee's prior service is 
disregarded on account of the plan's break-in-service rules then, for 
purposes of this subparagraph, such service is also disregarded for 
purposes of determining the date on which such employee first satisfied 
the minimum age and service requirements.
    (2) Examples. The rules provided by this paragraph are illustrated 
by the following examples:

    Example (1). A calendar year plan provides that an employee may 
enter the plan only on the first semi-annual entry date, January 1 or 
July 1, after he has satisfied the applicable minimum age and service 
requirements specified in section 410(a)(1). The plan satisfies the 
requirements of this paragraph because an employee is eligible to 
participate no later than the earlier of (1) the first day of the first 
plan year beginning after he satisfied the applicable minimum age and 
service requirements, or (2) the date 6 months after he satisfied such 
requirements.
    Example (2). A plan provides that an employee is not eligible to 
participate until the first day of the first plan year beginning after 
he has satisfied the minimum age and service requirements of section 
410(a)(1). In this case, an employee who satisfies the ``6 month'' rule 
described in subparagraph (1) of this paragraph will not be eligible to 
participate in the plan. Therefore, the plan does not satisfy the 
requirements of this paragraph.
    Example (3). A calendar year plan provides that an employee may 
enter the plan only on the first semi-annual entry date, January 1 or 
July 1, after he has satisfied the applicable minimum age and service 
requirements specified in section 410(a)(1). Employee A after 10 years 
of service separated from service in 1976 with a vested benefit. On 
February 1, 1990, A returns to employment covered by the plan. Assuming 
A completes a year of service after his return, A must participate 
immediately on his return, February 1. A's prior service cannot be 
disregarded, because he had a vested benefit when he separated from 
service. Therefore, the plan may not postpone his participation until 
July 1.
    Example (4). Assume the same facts as in example (3). The plan has 
the break-in-service rule described in section 410(a)(5)(D) and

[[Page 444]]

Sec. 1.410(a)-5(c)(4). Employee B, after he had 5 years of service but 
no vested benefit incurs 5 consecutive 1-year breaks. Because B's prior 
service can be disregarded, the plan may postpone B's participation in 
the plan under the rule described in section 410(a)(4) and this 
paragraph.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47195, Sept. 20, 1977, as amended by T.D. 7703, 45 FR 
40980, June 17, 1980]



Sec. 1.410(a)-5  Year of service; break in service.

    (a) Year of service. For the rules relating to years of service 
under subparagraphs (A), (C), and (D) of section 410(a)(3), see 
regulations prescribed by the Secretary of Labor under 29 CFR Part 2530, 
relating to minimum standards for employee pension benefit plans.
    Rules relating to a general rule for a year of service, hours of 
service, and maritime industries apply for purposes of section 410(a) 
and the regulations thereunder.
    (b) Seasonal industries. For rules which relate to seasonal 
industries under section 410(a)(3)(B), see regulations prescribed by the 
Secretary of Labor under 29 CFR Part 2530, relating to minimum standards 
for employee pension benefits plans.
    (c) Breaks in service--(1) General rule. This paragraph provides 
rules with respect to breaks in service under section 410(a)(5). Except 
as provided in subparagraphs (2), (3), (4), and (5) of this paragraph, 
all of an employee's years of service with the employer or employers 
maintaining a plan are taken into account in computing his period of 
service under the plan for purposes of section 410(a)(1) and 
Sec. 1.410(a)-3.
    (2) Employees under 3-year 100 percent vesting schedule--(i) General 
rule. In the case of an employee who incurs a 1-year break in service 
under a plan which provides that after not more than 3 years of service, 
each participant's right to his accrued benefit under the plan in 
completely nonforfeitable (within the meaning of section 411 and the 
regulations thereunder) at the time such benefit accrues, the employee's 
service before the break in service is not required to be taken into 
account after the break in service in determining the employee's years 
of service under section 410(a)(1) and Sec. 1.410(a)-3 if such employee 
has not satisfied such service requirement.
    (ii) Example. The rules of this subparagraph are illustrated by the 
following example.

    Example. A qualified plan computing service by the actual counting 
of hours provides full and immediate vesting. The plan can not require 
as a condition of participation that an employee complete 3 consecutive 
years of service with the employer because the requirement as to 
consecutive years is not permitted under section 410(a) (5). However, 
such a plan can require 3 years without a break in service, i.e., 3 
years with no intervening years in which the employee fails to complete 
more than 500 hours of service. Under a plan containing such a 
participation requirement, the following example illustrates when 
employees whould become eligible to participate.

------------------------------------------------------------------------
                                            Hours of service completed  
                                        --------------------------------
                  Year                    Employee   Employee   Employee
                                             A          B          C    
------------------------------------------------------------------------
1......................................      1,000      1,000      1,000
2......................................      1,000      1,000        500
3......................................      1,000        700      1,000
4......................................      1,000      1,000        700
5......................................      1,000      1,000      1,000
6......................................      1,000      1,000      1,000
------------------------------------------------------------------------
Note.--Employee A will have satisfied the plan's service requirement at 
  the end of year 3. Employee B at the end of year 4, and Employee C at 
  the end of year 6.                                                    

    (3) One-year break in service--(i) In general. In computing the 
period of service of an employee who has incurred a 1-year break in 
service, for purposes of section 410(a)(1) and Sec. 1.410(a)-3, a plan 
may disregard the employee's service before the break until the employee 
completes a year of service after such break in service.
    (ii) Examples. The rules provided by this subparagraph are 
illustrated by the following examples.

    Example (1). Employee A completes a year of service under a plan 
computing service by the actual counting of hours for the 12-month 
period ending December 31, 1980, and incurs a 1-year break in service 
for the 12-month period ending December 31, 1981. The plan does not 
contain the provisions permitted by section 410(a)(5)(B) (relating to 3-
year 100 percent vesting) and section 410(a)(5)(D) (relating to 
nonvested participants). Thereafter, he does not complete a year of 
service. As of January 1, 1982, in computing his period of service under 
the plan his service prior to December 31, 1981, is not

[[Page 445]]

required to be taken into account for purposes of section 410(a)(1) and 
Sec. 1.410 (a)-3.
    Example (2). The employee in example (1) completes a year of service 
for the 12-month period ending December 31, 1982. Prior to December 31, 
1982, in computing the employee's period of service as of any date 
occurring in 1982, the employee's service before December 31, 1981, is 
not required to be taken into account for purposes of section 410(a)(1) 
and Sec. 11.410(a)-3. Because the employee completed a year of service 
for the 12-month period ending December 31, 1982, however, his period of 
service is redetermined as of January 1, 1982. Upon completion of a year 
of service for 1982, the employee's period of service, determined as of 
any date occurring in 1982, includes service prior to December 31, 1981.

    (4) Nonvested participants--(i) General rule. In the case of a 
participant in a plan who does not have any nonforfeitable right under 
the plan to his employer-derived accrued benefit and who incurs a 1-year 
break in service, for purposes of section 410(a)(1) and Sec. 1.410.(a)-3 
the plan may disregard his years of service prior to such break if the 
number of his consecutive 1-year breaks in service equals or exceeds his 
aggregate number of years of service prior to such break. In the case of 
a plan using the elapsed time method described in Department of Labor 
regulations, the plan may disregard such years of service prior to such 
break if the period of severance is at least 1 year and the period of 
severance equals or exceeds the prior period of service, whether or not 
consecutive, completed before such period of severance. The plan may in 
computing such aggregate number of years of service prior to such break 
disregard any years of service which could have been disregarded under 
this subparagraph by reason of any prior break in service.
    (ii) Examples. The rules of this subparagraph are illustrated by the 
following example:

    Example. In 1980, A, who was hired at age 35, separates from the 
service of X Corporation after completing 4 years of service. At this 
time A had no vested benefits. In 1985, after incurring 5 consecutive 
one-year breaks in service, A was reemployed. Under section 
410(a)(5)(D), A's 4 years of service may be disregarded because they are 
exceeded by the number of years of consecutive one-year breaks (5) after 
such service.

    (d) Special continuity rule for certain plans. For special rules for 
computing years of service in the case of a plan maintained by more than 
one employer, see regulations prescribed by the Secretary of Labor under 
29 CFR Part 2530, relating to minimum standards for employee pension 
benefit plans.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47196, Sept. 20, 1977; T.D. 7508, 42 FR 57123, Nov. 1, 
1977, as amended by T.D. 7703, 45 FR 40980, June 17, 1980]



Sec. 1.410(a)-6  Amendment of break in service rules; Transition period.

    (a) In general. Under section 1017(f) (1) of the Employee retirement 
Income Security Act of 1974, a plan is not a qualified plan (and a trust 
forming a part of such plan is not a qualified trust) if the rules of 
the plan relating to breaks in service are amended, and--
    (1) Such amendment is effective after January 1, 1974, and before 
the date on which section 410 becomes applicable to the plan, and
    (2) Under such amendment, any employee's participation in the plan 
commences at any date later than the later of--
    (i) The date on which his participation would commence under the 
break in service rules of section 410(a)(5), or
    (ii) The earliest date on which his participation would commence 
under the plan as in effect on or after January 1, 1974.
    (b) Break in service rules. For purposes of paragraph (a), the term 
``break in service rules'' means the rules provided by a plan relating 
to circumstances under which a period of an employee's service or plan 
participation is disregarded for purposes of determining his rights to 
participate in the plan, if under such rules such service is disregarded 
by reason of the employee's failure to complete a required period of 
service within a specified period of time.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47197, Sept. 20, 1977; 43 FR 2721, Jan. 19, 1978]



Sec. 1.410(a)-7  Elapsed time.

    (a) In general--(1) Introduction to elapsed time method of crediting 
service. (i) 29 CFR 2530.200b-2 sets forth the general method of 
crediting service for an

[[Page 446]]

employee. The general method is based upon the actual counting of hours 
of service during the applicable 12-consecutive-month computation 
period. The equivalencies set forth in 29 CFR 2530.200b-3 are also 
methods for crediting hours of service during computaton periods. Under 
the general method and the equivalencies an employee receives a year's 
credit (in units of years of service or years of participation) for a 
computation period during which the employee is credited with a 
specified number of hours of service. In general, an employee's 
statutory entitlement with respect to eligibility to participate, 
vesting and benefit accrual is determined by totalling the number of 
years' credit to which an employee is entitled.
    (ii) Under the alternative method set forth in this section, by 
contrast, an employee's statutory entitlement with respect to 
eligibility to participate, vesting and benefit accrual is not based 
upon the actual completion of a specified number of hours of service 
during a 12-consecutive-month period. Instead, such entitlement is 
determined generally with reference to the total period of time which 
elapses while the employee is employed (i.e., while the employment 
relationship exists) with the employer or employers maintaining the 
plan. The alternative method set forth in this section is designed to 
enable a plan to lessen the administrative burdens associated with the 
maintenance of records of an employee's hours of service by permitting 
each employee to be credited with his or her total period of service 
with the employer or employers maintaining the plan, irrespective of the 
actual hours of service completed in any 12-consecutive-month period.
    (2) Overview of the operation of the elapsed time method. (i) Under 
the elapsed time method of crediting service, a plan is generally 
required to take into account the period of time which elapses while the 
employee is employed (i.e., while the employment relationship exists) 
with the employer or employers maintaining the plan, regardless of the 
actual number of hours he or she completes during such period. Under 
this alternative method of crediting service, an employee's service is 
required to be taken into account for purposes of eligibility to 
participate and vesting as of the date he or she first performs an hour 
of service within the meaning of 29 CFR 2530.200b-2 (a) (1) for the 
employer or employers maintaining the plan. Service is required to be 
taken into account for the period of time from the date the employee 
first performs such an hour of service until the date he or she severs 
from service with the employer or employers maintaining the plan.
    (ii) The date the employee severs from service is the earlier of the 
date the employee quits, is discharged, retires or dies, or the first 
anniversary of the date the employee is absent from service for any 
other reason (e.g., disability, vacation, leave of absence, layoff, 
etc.). Thus, for example, if an employee quits, the severance from 
service date is the date the employee quits. On the other hand, if an 
employee is granted a leave of absence (and if no intervening event 
occurs), the severance from service date will occur one year after the 
date the employee was first absent on leave, and this one year of 
absence is required to be taken into account as service for the employer 
or employers maintaining the plan. Because the severance from service 
date occurs on the earlier of two possible dates (i.e., quit, discharge, 
retirement or death or the first anniversary of an absence from service 
for any other reason), a quit, discharge, retirement or death within the 
year after the beginning of an absence for any other reason results in 
an immediate severance from service. Thus, for example, if an employee 
dies at the end of a four-week absence resulting from illness, the 
severance from service date is the date of death, rather than the first 
anniversary date of the first day of absence for illness.
    (iii) In addition, for purposes of eligibility to participate and 
vesting under the elapsed time method of crediting service, an employee 
who has severed from service by reason of a quit, discharge or 
retirement may be entitled to have a period of time of 12 months or less 
taken into account by the employer or employers maintaining the plan if 
the employee returns to service

[[Page 447]]

within a certain period of time and performs an hour of service within 
the meaning of 29 CFR 2530.200b-2 (a) (1). In general, the period of 
time during which the employee must return to service begins on the date 
the employee severs from service as a result of a quit, discharge or 
retirement and ends on the first anniversary of such date. However, if 
the employee is absent for any other reason (e.g., layoff) and then 
quits, is discharged or retires, the period of time during which the 
employee may return and receive credit begins on the severance from 
service date and ends one year after the first day of absence (e.g., 
first day of layoff). As a result of the operation of these rules, a 
severance from service (e.g., a quit), or an absence (e.g., layoff) 
followed by a severance from service, never results in a period of time 
of more than one year being required to be taken into account after an 
employee severs from service or is absent from service.
    (iv) For purposes of benefit accrual under the elapsed time method 
of crediting service, an employee is entitled to have his or her service 
taken into account from the date he or she begins to participate in the 
plan until the severance from service date. Periods of severance under 
any circumstances are not required to be taken into account. For 
example, a participant who is discharged on December 14, 1980 and 
rehired on October 14, 1981 is not required to be credited with the 10 
month period of severance for benefit accrual purposes.
    (3) Overview of certain concepts relating to the elapsed time 
method--(i) In general. The rules with respect to the elapsed time 
method of crediting service are based on certain concepts which are 
defined in paragraph (b) of this section. These concepts are applied in 
the substantive rules contained in paragraphs (c), (d), (e), (f) and (g) 
of this section. The purpose of this subparagraph is to summarize these 
concepts.
    (ii) Employment commencement date. (A) A concept which is necessary 
in order to credit service accurately under any service crediting method 
is the establishment of a starting point for crediting service. The 
employment commencement date, which is the date on which an employee 
first performs an hour of service within the meaning of 29 CFR 
2530.200b-2 (a) (1) for the employer or employers maintaining the plan, 
is used to establish the date upon which an employee must begin to 
receive credit for certain purposes (e.g., eligibility to participate 
and vesting).
    (B) In order to credit accurately an employee's total service with 
an employer or employers maintaining the plan, a plan also may provide 
for an ``adjusted'' employment commencement date (i.e., a recalculation 
of the employment commencement date to reflect noncreditable periods of 
severance) or a reemployment commencement date as defined in paragraph 
(b) (3) of this section. Fundamentally, all three concepts rely upon the 
performance of an hour of service to provide a starting point for 
crediting service. One purpose of these three concepts is to enable 
plans to satisfy the requirements of this section in a variety of ways.
    (C) The fundamental rule with respect to these concepts is that any 
plan provision is permissible so long as it satisfies the minimum 
standards. Thus, for example, although the rules of this section provide 
that credit must begin on the employment commencement date, a plan is 
permitted to ``adjust'' the employment commencement date to reflect 
periods of time for which service is not required to be credited. 
Similarly, a plan may wish to credit service under the elapsed time 
method as discrete periods of service and provide for a reemployment 
commencement date. Certain plans may wish to provide for both concepts, 
although it is not a requirement of this section that plans so provide.
    (iii) Severance from service date. Another fundamental concept of 
the elapsed time method of crediting service is the severance from 
service date, which is defined as the earlier of the date on which an 
employee quits, retires, is discharged or dies, or the first anniversary 
of the first date of absence for any other reason. One purpose of the 
severance from service date is to provide the endpoint for crediting 
service under the elapsed time method. As

[[Page 448]]

a general proposition, service is credited from the employment 
commencement date (i.e., the starting point) until the severance from 
service date (i.e., the endpoint). A complementary purpose of the 
severance from service date is to establish the starting point for 
measuring a period of severance from service in order to determine a 
``break in service'' (see paragraph (a)(3)(v) of this section). A third 
purpose of such date is to establish the starting point for measuring 
the period of time which may be required to be taken into account under 
the service spanning rules (see paragraph (a)(3)(vi) of this section).
    (iv) Period of service. A third elapsed time concept is the use of 
the ``period of service'' rather than the ``year of service'' in 
determining service to be taken into account for purposes of eligibility 
to participate, vesting and benefit accrual. For purposes of eligibility 
to participate and vesting, the period of service runs from the 
employment commencement date or reemployment commencement date until the 
severance from service date. For purposes of benefit accrual, a period 
of service runs from the date that a participant commences participation 
under the plan until the severance from service date. Because the 
endpoint of the period of service is marked by the severance from 
service date, an employee is credited with the period of time which runs 
during any absence from service (other than for reason of a quit, 
retirement, discharge or death) which is 12 months or less. Thus, for 
example, a three week absence for vacation is taken into account as part 
of a period of service and does not trigger a severance from service 
date.
    (v) Period of severance. A period of severance begins on the 
severance from service date and ends when an employee returns to service 
with the employer or employers maintaining the plan. The purpose of the 
period of severance is to apply the statutory ``break in service'' rules 
to an elapsed time method of crediting service.
    (vi) Service spanning. Under the elapsed time method of crediting 
service, a plan is required to credit periods of service and, under the 
service spanning rules, certain periods of severance of 12 months or 
less for purposes of eligibility to participate and vesting. Under the 
first service spanning rule, if an employee severs from service as a 
result of quit, discharge or retirement and then returns to service 
within 12 months, the period of severance is required to be taken into 
account. Also, a situation may arise in which an employee is absent from 
service for any reason other than quit, discharge, retirement or death 
and during the absence a quit, discharge or retirement occurs. The 
second service spanning rule provides in that set of circumstances that 
a plan is required to take into account the period of time between the 
severance from service date (i.e., the date of quit, discharge or 
retirement) and the first anniversary of the date on which the employee 
was first absent, if the employee returns to service on or before such 
first anniversary date.
    (4) Organization and applicability. (i) The substantive rules for 
crediting service under the elapsed time method with respect to 
eligibility to participate are contained in paragraph (c), the rules 
with respect to vesting are contained in subparagraph (d), and the rules 
with respect to benefit accrual are contained in paragraph (e). The 
format of the rules is designed to enable a plan to use the elapsed time 
method of crediting service either for all purposes or for any one or 
combination of purposes under sections 410 and 411. Thus, for example, a 
plan may credit service for eligibility to participate purposes by the 
use of the general method of crediting service set forth in 29 CFR 
2530.200b-2 or by the use of any of the equivalences set forth in 29 CFR 
2530.200b-3, while the plan may credit service for vesting and benefit 
accrual purposes by the use of the elapsed time method of crediting 
service.
    (ii) A plan using the elapsed time method of crediting service for 
one or more classifications of employees covered under the plan may use 
the general method of crediting service set forth in 29 CFR 2530.200b-2 
or any of the equivalencies set forth in 29 CFR 2530.200b-3 for other 
classifications of employees, provided that such classifications are 
reasonable and are consistently applied. Thus, for example, a

[[Page 449]]

plan may provide that part-time employees are credited under the general 
method of crediting service set forth in 29 CFR 2530.200b-2 and full-
time employees are credited under the elapsed time method. A 
classification, however, will not be deemed to be reasonable or 
consistently applied if such classification is designed with an intent 
to preclude an employee or employees from attaining his or her statutory 
entitlement with respect to eligibility to participate, vesting or 
benefit accrual. For example, a classification applied so that any full-
time employee credited with less than 1,000 hours of service during a 
given 12-consecutive-month period would be considered part-time and 
subject to the general method of crediting service rather than the 
elapsed time method would not be reasonable.
    (iii) Notwithstanding paragraph (a) (4) (i) and (ii) of this 
section, the use of the elapsed time method for some purposes or the use 
of the elapsed time method for some employees may, under certain 
circumstances, result in discrimination prohibited under section 
401(a)(4), even though the use of the elapsed time method for such 
purposes, and for such employees, is permitted under this section.
    (5) More than one employer plans. For special rules for computing 
years of service in the case of a plan maintained by more than one 
employer, see 29 CFR Part 2530 (Department of Labor regulations relating 
to minimum standards for employee pension benefit plans).
    (b) Definitions--(1) Employment commencement date. For purposes of 
this section, the term ``employment commencement date'' shall mean the 
date on which the employee first performs an hour of service within the 
meaning of 29 CFR 2530.200b-2 (a)(1) for the employer or employers 
maintaining the plan.
    (2) Severance from service date. For purposes of this section, a 
``severance from service'' shall occur on the earlier of--
    (i) The date on which an employee quits, retires, is discharged or 
dies; or
    (ii) The first anniversary of the first date of a period in which an 
employee remains absent from service (with or without pay) with the 
employer or employers maintaining the plan for any reason other than 
quit, retirement, discharge or death, such as vacation, holiday, 
sickness, disability, leave of absence or layoff.
    (3) Reemployment commencement date. For purposes of this section, 
the term ``reemployment commencement date'' shall mean the first date, 
following a period of severance from service which is not required to be 
taken into account under the service spanning rules in paragraphs 
(c)(2)(iii) and (d)(1)(iii) of this section, on which the employee 
performs an hour of service within the meaning of 29 CFR 2530.200b-
2(a)(1) for the employer or employers maintaining the plan.
    (4) Participation commencement date. For purposes of this section, 
the term ``participation commencement date'' shall mean the date a 
participant first commences participation under the plan.
    (5) Period of severance. For purposes of this section, the term 
``period of severance'' shall mean the period of time commencing on the 
severance from service date and ending on the date on which the employee 
again performs an hour of service within the meaning of 29 CFR 
2530.200b-2(a)(1) for an employer or employers maintaining the plan.
    (6) Period of service--(i) General rule. For purposes of this 
section, the term ``period of service'' shall mean a period of service 
commencing on the employee's employment commencement date or 
reemployment commencement date, whichever is applicable, and ending on 
the severance from service date.
    (ii) Aggregation rule. Unless a plan provides in some manner for an 
``adjusted'' employment commencement date or similar method of 
consolidating periods of service, periods of service shall be aggregated 
unless such periods may be disregarded under section 410(a)(5) or 
411(a)(4).
    (iii) Other federal law. Nothing in this section shall be construed 
to alter, amend, modify, invalidate, impair or supersede any law of the 
United States or any rule or regulation issued under such law. Thus, for 
example, nothing in this section shall be construed as denying an 
employee credit for a ``period of

[[Page 450]]

service'' if credit is required by a separate federal law. Furthermore, 
the nature and extent of such credit shall be determined under such law.
    (c) Eligibility to participate--(1) General rule. For purposes of 
section 410(a)(1)(A), a plan generally may not require as a condition of 
participation in the plan that an employee complete a period of service 
with the employer or employers maintaining the plan extending beyond the 
later of--
    (i) The date on which the employee attains the age of 25; or
    (ii) The date on which the employee completes a one-year period of 
service. See the regulations under section 410(a) (relating to 
eligibility to participate).
    (2) Determination of one-year period of service. (i) For purposes of 
determining the date on which an employee satisfies the service 
requirement for initial eligibility to participate under the plan, a 
plan using the elapsed time method of crediting service shall provide 
that an employee who completes the 1-year period of service requirement 
on the first anniversary of his employment commencement date satisfies 
the minimum service requirement as of such date. In the case of an 
employee who fails to complete a one-year period of service on the first 
anniversary of his employment commencement date, a plan which does not 
contain a provision permitted by section 410(a)(5)(D) (rule of parity) 
shall provide for the aggregation of periods of service so that a one-
year period of service shall be completed as of the date the employee 
completes 12 months of service (30 days are deemed to be a month in the 
case of the aggregation of fractional months) or 365 days of service.
    (ii) For purposes of section 410(a)(1)(B)(i), a ``3-year period of 
service'' shall be deemed to be ``3 years of service.''
    (iii) Service spanning rules. In determining a 1-year period of 
service for purposes of initial eligibility to participate and a period 
of service for purposes of retention of eligibility to participate, in 
addition to taking into account an employee's period of service, a plan 
shall take into account the following periods of severance--
    (A) If an employee severs from service by reason of a quit, 
discharge or retirement and the employee then performs an hour of 
service within the meaning of 29 CFR 2530.200b-2(a)(1) within 12 months 
of the severance from service date, the plan is required to take into 
account the period of severance; and
    (B) Notwithstanding paragraph (c)(2)(iii)(A) of this section, if an 
employee severs from service by reason of a quit, discharge or 
retirement during an absence from service of 12 months or less for any 
reason other than a quit, discharge, retirement or death, and then 
performs an hour of service within the meaning of 29 CFR 2530.200b-
2(a)(1) within 12 months of the date on which the employee was first 
absent from service, the plan is required to take into account the 
period of severance.
    (iv) For purposes of determining an employee's retention of 
eligibility to participate in the plan, a plan shall take into account 
an employee's entire period of service unless certain periods of service 
may be disregarded under section 410(a)(5) of the Code.
    (v) Example. Employee W, age 31, completed 6 months of service and 
was laid off. After 2 months of layoff, W quit. Five months later, W 
returned to service. For purposes of eligibility to participate, W was 
required to be credited with 13 months of service (8 months of service 
and 5 months of severance). If, on the other hand, W had not returned to 
service within the first 10 months of severance (i.e., within 12 months 
after the first day of layoff), W would be required to be credited with 
only 8 months of service.
    (3) Entry date requirements--(i) General rule. For purposes of 
section 410(a)(4), it is necessary for a plan to provide that any 
employee who has satisfied the minimum age and service requirements, and 
who is otherwise entitled to participate in the plan, commences 
participation in the plan no later than the earlier of--
    (A) The first day of the first plan year beginning after the date on 
which such employee satisfied such requirements, or

[[Page 451]]

    (B) The date six months after the date on which he satisfied such 
requirements, unless such employee was separated from service before the 
date referred to in subdivision (i) (A) or (B), whichever is applicable. 
See the regulations under section 410(a) (relating to eligibility to 
participate).
    (ii) Separation from service--(A) Definition. For purposes of this 
section, the term ``separated from service'' includes a severance from 
service or an absence from service for any reason other than a quit, 
discharge, retirement or death, regardless of the duration of such 
absence. Accordingly, if an employee is laid off for a period of six 
weeks, the employee shall be deemed to be ``separated from service'' 
during such period for purposes of the entry date requirements.
    (B) Application. A period of severance which is taken into account 
under the service spanning rules in paragraph (c)(2)(iii) of this 
section or an absence of 12 months or less may result in an employee 
satisfying the plan's minimum service requirement during such period of 
time. In addition, once an employee satisfies the plan's minimum service 
requirement, either before or during such period of time, such period of 
time may contain an entry date applicable to such employee. In the case 
of an employee whose period of severance is taken into account and such 
period contains an entry date applicable to the employee, he or she 
shall be made a participant in the plan (if otherwise eligible) no later 
than the date on which he or she ended the period of severance. In the 
case of an employee whose period of absence contains an entry date 
applicable to such employee, he or she, no later than the date such 
absence ended, shall be made a participant in the plan (if otherwise 
eligible) as of the first applicable entry date which occurred during 
such absence from service.
    (iii)  Examples. For purposes of the following examples, assume that 
the plan provides for a minimum age requirement of 25 and a minimum 
service requirement of one year, and provides for semi-annual entry 
dates.
    (A) Employee A, age 35, worked for 10 months in a job classification 
covered under the plan, became disabled for nine consecutive months and 
then returned to service. During the period of absence, A completed a 1-
year period of service and passed a semi-annual entry date after 
satisfying the minimum service requirement. Accordingly, the plan is 
required to make A a participant no later than his return to service 
effective as of the applicable entry date.
    (B) Employee B, after satisfying the minimum age and service 
requirements, quit work before the next semi-annual entry date, and then 
returned to service before incurring a 1-year period of severance, but 
after such semi-annual entry date. Employee B is entitled to become a 
participant immediately upon his return to service effective as of the 
date of his return.
    (4) Break in service. For purposes of applying the break in service 
rules under section 410(a)(5) (B) and (C), the term ``1-year period of 
severance'' shall be substituted for the term ``1-year break in 
service''. A 1-year period of severance shall be determined on the basis 
of a 12-consecutive-month period beginning on the severance from service 
date and ending on the first anniversary of such date, provided that the 
employee during such 12-consecutive-month period does not perform an 
hour of service within the meaning of 29 CFR 2530.200b-2(a)(1) for the 
employer or employers maintaining the plan.
    (5) One-year hold-out--(i) General rule. (A) For purposes of section 
410(a)(5)(C), in determining the period of service of an employee who 
has incurred a 1-year period of severance, a plan may disregard the 
employee's period of service before such period of severance until the 
employee completes a 1-year period of service after such period of 
severance.
    (B) Example. Assume that a plan provides for a minimum service 
requirement of 1-year and provides for semi-annual entry dates, but does 
not contain the provisions permitted by section 410(a)(5)(D) (relating 
to the rule of parity). Employee G, age 40, completed a seven-month 
period of service, quit and then returned to service 15 months later, 
thereby incurring a 1-year period of severance. After working four 
months, G was laid off for nine months

[[Page 452]]

and then returned to work again. Although the plan may hold employee G 
out from participation in the plan until the completion of a 1-year 
period of service after the 1-year (or greater) period of severance, 
once the 1-year hold-out is completed, the plan is required to provide 
the employee with such statutory entitlement as arose during the 1-year 
hold-out. Accordingly, employee G satisfied the 1-year hold-out 
requirement as of the eighth month of layoff, and G is entitled to 
become a participant in the plan immediately upon his return to service 
after the nine-month layoff effective as of the first applicable entry 
date occurring after the date on which he satisfied the 1-year of 
service requirement (i.e., the first applicable entry date after the 
first month of layoff). See the regulations under section 410 (a) 
(relating to eligibility to participate).
    (6) Rule of parity--(i) General rule. For purposes of section 
410(a)(5)(D), in the case of a participant who does not have any 
nonforfeitable right under the plan to his accrued benefit derived from 
employer contributions and who incurs a 1-year period of severance, a 
plan, in determining an employee's period of service for purposes of 
section 410(a)(1), may disregard his period of service if his latest 
period of severance equals or exceeds his prior periods of service, 
whether or not consecutive, completed before such period of severance. 
See the regulations under section 410(a) (relating to eligibility to 
participate).
    (ii) In determining whether a completely nonvested employee's 
service may be disregarded under the rule of parity, a plan is not 
permitted to apply the rule until the employee incurs a 1-year period of 
severance. Accordingly, a plan may not disregard a period of service of 
less than one year until an employee has incurred a period of severance 
of at least one year.
    (iii) Example. Assume that a plan provides for a minimum service 
requirement of one year and provides for the rule of parity. An employee 
works for three months, quits and then is rehired 10 months later. Such 
employee is entitled to receive 13 months of credit for purposes of 
eligibility to participate and vesting (see the service spanning rules). 
Although the period of severance exceeded the period of service, the 
three months of service may not be disregarded because no 1-year period 
of severance occurred.
    (d) Vesting--(1) General rule. (i) For purposes of section 
411(a)(2), relating to vesting in accrued benefits derived from employer 
contributions, a plan which determines service to be taken in account on 
the basis of elapsed time shall provide that an employee is credited 
with a number of years of service equal to at least the number of whole 
years of the employee's period of service, whether or not such periods 
of service were completed consecutively.
    (ii) In order to determine the number of whole years of an 
employee's period of service, a plan shall provide that non-successive 
periods of service must be aggregated and that less than whole year 
periods of service (whether or not consecutive) must be aggregated on 
the basis that 12 months of service (30 days are deemed to be a month in 
the case of the aggregation of fractional months) or 365 days of service 
equal a whole year of service.
    (iii) Service spanning rules. In determining a participant's period 
of service for vesting purposes, a plan shall take into account the 
following periods of severance--
    (A) If an employee severs from service by reason of a quit, 
discharge or retirement and the employee then performs an hour of 
service within the meaning of 29 CFR 2530.200b-2(a)(1) within 12 months 
of the severance from service date, the plan is required to take into 
account the period of severance; and
    (B) Nothwithstanding paragraph (d)(1)(iii)(A) of this section, if an 
employee severs from service by reason of a quit, discharge or 
retirement during an absence from service of 12 months or less for any 
reason other than a quit, discharge, retirement or death, and then 
performs an hour of service within the meaning of 29 CFR 2530.200b-
2(a)(1) within 12 months of the date on which the employee was first 
absent from service, the plan is required to take into account the 
period of severance.
    (iv) For purposes of determining an employee's nonforfeitable 
percentage

[[Page 453]]

of accrued benefits derived from employer contributions, a plan, after 
calculating an employee's period of service in the manner prescribed in 
this paragraph, may disregard any remaining less than whole year, 12-
month or 365-day period of service. Thus, for example, if a plan 
provides for the statutory five to fifteen year graded vesting, an 
employee with a period (or periods) of service which yield 5 whole year 
periods of service and an additional 321-day period of service is 
twenty-five percent vested in his or her employer-derived accrued 
benefits (based solely on the 5 whole year periods of service).
    (2) Service which may be disregarded. (i) For purposes of section 
411(a)(4), in determining the nonforfeitable percentage of an employee's 
right to his or her accrued benefits derived from employer 
contributions, all of an employee's period or periods of service with an 
employer or employers maintaining the plan shall be taken into account 
unless such service may be disregarded under paragraph (d)(2)(ii) of 
this section.
    (ii) For purposes of paragraph (d)(2)(i) of this section, the 
following periods of service may be disregarded--
    (A) The period of service completed by an employee before the date 
on which he attains age 22;
    (B) In the case of a plan which requires mandatory employee 
contributions, the period of service which falls within the period of 
time to which a particular employee contribution relates, if the 
employee had the opportunity to make a contribution for such period of 
time and failed to do so;
    (C) The period of service during any period for which the employer 
did not maintain the plan or a predecessor plan;
    (D) The period of service which is not required to be taken into 
account by reason of a period of severance which constitutes a break in 
service within the meaning of paragraph (d)(4) of this section;
    (E) The period of service completed by an employee prior to January 
1, 1971, unless the employee completes a period of service of at least 3 
years at any time after December 31, 1970; and
    (F) The period of service completed before the first plan year for 
which this section applies to the plan, if such service would have been 
disregarded under the plan rules relating to breaks in service in effect 
at that time. See the regulations under section 411(a) (relating to 
vesting).
    (3) Seasonal industry. [Reserved]
    (4) Break in service. For purposes of applying the break in service 
rules, the term ``1-year period of severance'' shall be substituted for 
the term ``1-year break in service''. A 1-year period of severance shall 
be a 12-consecutive-month period beginning on the severance from service 
date and ending on the first anniversary of such date, provided that the 
employee during such 12-consecutive-month period fails to perform an 
hour of service within the meaning of 29 CFR 2530.200b-2(a)(1) for an 
employer or employers maintaining the plan.
    (5) One-year hold-out. For purposes of section 411(a)(6)(B), in 
determining the nonforfeitable percentage of the right to accrued 
benefits derived from employer contributions of an employee who has 
incurred a 1-year period of severance, the period of service completed 
before such period of severance is not required to be taken into account 
until the employee has completed a 1-year period of service after his 
return to service. See the regulations under section 411(a) (relating to 
vesting).
    (6) Vesting in pre-break accruals. For purposes of section 
411(a)(6)(C), a ``1-year period of severance'' shall be deemed to 
constitute a ``1-year break in service.'' See the regulations under 
section 411(a) (relating to vesting).
    (7) Rule of partity--(i) General rule. For purposes of section 
411(a)(6)(D), in the case of an employee who is a nonvested participant 
in employer-derived benefits at the time he incurs a 1-year period of 
severance, the period of service completed by such participant before 
such period of severance is not required to be taken into account for 
purposes of determining the vested percentage of his or her right to 
employer-derived benefits if at such time the consecutive period of 
severance equals or exceeds his prior periods of service, whether or not 
consecutive, completed before such period of severance. See the 
regulations under section 411(a) (relating to vesting).

[[Page 454]]

    (e) Benefit accrual. (1) For purposes of section 411(b), a plan may 
provide that a participant's service with an employer or employers 
maintaining the plan shall be determined on the basis of the 
participant's total period of service beginning on the participation 
commencement date and ending on the severance from service date.
    (2) Under section 411(b)(3)(A), a defined benefit pension plan may 
determine an employee's service for purposes of benefit accrual on any 
basis which is reasonable and consistent and which takes into account 
all service during the employee's participation in the plan which is 
included in a period of service required to be taken into account under 
section 410(a)(5) (relating to service which must be taken into account 
for purposes of determining an employee's eligibility to participate). A 
plan which provides for the determination of an employee's service with 
an employer or employers maintaining the plan on the basis permitted 
under paragraph (e)(1) of this section will be deemed to meet the 
requirements of section 411(b)(3)(A), provided that the plan meets the 
requirements of 29 CFR 2530.204-3, relating to plans which determine an 
employee's service for purposes of benefit accrual on a basis other than 
computation periods. Specifically, under 29 CFR 2530.204-3, it must be 
possible to prove that, despite the fact that benefit accrual under such 
a plan is not based on computation periods, the plan's provisions meet 
at least one of the three benefit accrual rules of section 411(b)(1) 
under all circumstances. Further, 29 CFR 2530.204-3 prohibits such a 
plan from disregarding service under section 411(b)(3)(C) (which would 
otherwise permit a plan to disregard service performed by an employee 
during a computation period in which the employee is credited with less 
than 1,000 hours). See the regulations under section 411(b) (relating to 
benefit accrual).
    (f) Transfers between methods of crediting service--(1) Single plan. 
A plan may provide that an employee's service for purposes of 
eligibility to participate, vesting or benefit accrual shall be 
determined on the basis of computation periods under the general method 
set forth in 29 CFR 2530.200b-2 for certain classes of employees but 
under the alternative method permitted under this section for other 
classes of employees if the plan provides as follows--
    (i) In the case of an employee who transfers from a class of 
employees whose service is determined on the basis of computation 
periods to a class of employees whose service is determined on the 
alternative basis permitted under this section, the employee shall 
receive credit for a period of service consisting of--
    (A) A number of years equal to the number of years of service 
credited to the employee before the computation period during which the 
transfer occurs; and
    (B) The greater of (1) the period of service that would be credited 
to the employee under the elapsed time method for his service during the 
entire computation period in which the transfer occurs or (2) the 
service taken into account under the computation periods method as of 
the date of the transfer.
    In addition, the employee shall receive credit for service 
subsequent to the transfer commencing on the day after the last day of 
the computation period in which the transfer occurs.
    (ii) In the case of an employee who transfers from a class of 
employees whose service is determined on the alternative basis permitted 
under this section to a class of employees whose service is determined 
on the basis of computation periods--
    (A) The employee shall receive credit, as of the date of the 
transfer, for a number of years of service equal to the number of 1-year 
periods of service credited to the employee as of the date of the 
transfer, and
    (B) The employee shall receive credit, in the computation period 
which includes the date of the transfer, for a number of hours of 
service determined by applying one of the equivalencies set forth in 29 
CFR 2530.200b-3 (e) (1) to any fractional part of a year credited to the 
employee under this section as of the date of the transfer. Such 
equivalency shall be set forth in the plan and shall apply to all 
similarly situated employees.
    (2) More than one plan. In the case of an employee who transfers 
from a plan

[[Page 455]]

using either the general method of determining service on the basis of 
computation periods set forth in 29 CFR 2530.200b-2 or the method of 
determining service permitted under this section to a plan using the 
other method of determining service, all service required to be credited 
under the plan to which the employee transfers shall be determined by 
applying the rules of paragraph (f)(1) of this section.
    (g) Amendments to change method of crediting service. A plan may be 
amended to change the method of crediting service for any purpose or for 
any class of employees between the general method set forth in 29 CFR 
2530.200-2 and the method permitted under this section, if such 
amendment contains provisions under which each employee with respect to 
whom the method of crediting service is changed is treated in the same 
manner as an employee who transfers from one class of employees to 
another under paragraph (f)(1) of this section.
    (h) Transitional rule. For plans in existence on [insert the date of 
the publication of this document], the provisions of paragraph (f) of 
this section are effective for plan years beginning after December 31, 
1983.

[T.D. 7703, 45 FR 40980, June 17, 1980]



Sec. 1.410(a)-8  Five consecutive 1-year breaks in service, transitional rules under the Retirement Equity Act of 1984.

    Sections 410(a)(5)(D) and 411(a)(6)(D), as amended by the Retirement 
Equity Act of 1984 (REA 1984), permit a plan to disregard years of 
service that were disregarded under the plan provisions satisfying those 
sections (as in effect on August 22, 1984) as of the day before the REA 
amendments apply to the plan. Under section 302(a) of REA 1984, the new 
break-in-service rules generally apply to plan years beginning after 
December 31, 1984. Thus, for example, assume a plan has a calendar plan 
year and disregarded years of service as permitted by sections 
410(a)(5)(D) and 411(a)(6)(D) as in effect on August 22, 1984. An 
employee completed two years of service in 1981 and 1982, and then 
incurred two consecutive 1-year breaks in service in 1983 and 1984. The 
plans may disregard the prior years of service even though the employee 
did not incur five consecutive 1-year breaks in service. On the other 
hand, assume the employee completed three consecutive years of service 
beginning in 1980, and incurred two 1-year breaks in service in 1983 and 
1984. Because, as of December 31, 1984, the years of service credited 
before 1983 could not be disregarded, whether the plan may subsequently 
disregard those years of service would be governed by the rules enacted 
by REA 1984.

[T.D. 8219, 53 FR 31851, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988]



Sec. 1.410(a)-8T  Year of service; break in service (temporary).

    (a)-(b) [Reserved]
    (c) Breaks in service.
    (1) [Reserved]
    (2) Employees under 2-year 100 percent vesting schedule--(i) General 
rule. In the case of an employee who incurs a 1-year break in service 
under a plan which provides that after not more than 2 years of service 
each participant's right to his accrued benefit under the plan is 
completely nonforfeitable (within the meaning of section 411 and the 
regulations thereunder) at the time such benefit accrues, the employee's 
service before the break in service is not required to be taken into 
account after the break in service in determining the employee's years 
of service under section 410(a)(1) and Sec. 1.410(a)-3 if such employee 
has not satisfied such service requirement.
    (ii) Example. The rules of this subparagraph are illustrated by the 
following example:

    Example. A qualified plan computing service by the actual counting 
of hours provides full and immediate vesting. The plan can not require 
as a condition of participation that an employee complete 2 consecutive 
years of service with the employer because the requirement as to 
consecutive years is not permitted under section 410(a)(5). However, 
such a plan can require 2 years without a break in service, i.e., 2 
years with no intervening years in which the employee fails to complete 
more than 500 hours of service. Under a plan containing such a 
participation requirement, the following example illustrates when 
employees would become eligible to participate.

[[Page 456]]



------------------------------------------------------------------------
                                          Hours of service completed    
                Year                 -----------------------------------
                                      Employee A  Employee B  Employee C
------------------------------------------------------------------------
1...................................       1,000       1,000       1,000
2...................................       1,000         700         500
3...................................       1,000       1,000       1,000
4...................................       1,000       1,000         700
5...................................       1,000       1,000       1,000
------------------------------------------------------------------------

    Note: Employee A will have satisfied the plan's service requirement 
at the end of year 2, Employee B at the end of year 3, and Employee C at 
the end of year 5.

    (3) One-year break in service--
    (i) [Reserved]
    (ii) Examples. The rules provided by this subparagraph are 
illustrated by the following examples:
    Example (1). Employee A completes a year of service under a plan 
computing service by the actual counting of hours for the 12-month 
period ending December 31, 1989, and incurs a 1-year break in service 
for the 12-month period ending December 31, 1990. The plan does not 
contain the provisions permitted by section 410(a)(5)(B) (relating to 2-
year 100 percent vesting) and section 410(a)(5)(D) (relating to 
nonvested participants). Thereafter, he does not complete a year of 
service. As of January 1, 1991, in computing his period of service under 
the plan his service prior to December 31, 1990, is not required to be 
taken into account for purposes of section 410(a)(1) and Sec. 1.410(a)-
3.

[T.D. 8170, 53 FR 239, Jan. 6, 1988]



Sec. 1.410(a)-9  Maternity and paternity absence.

    (a) Elapsed time--(1) Rule. For purposes of applying the rules of 
Sec. 1.410(a)-7 (relating to the elapsed time method of crediting 
service) to absences described in sections 410(a)(5)(E) and 411(a)(6)(E) 
(relating to maternity or paternity absence), the severance from service 
date of an employee who is absent from service beyond the first 
anniversary of the first day of absence by reason of a maternity or 
paternity absence described in section 410(a)(5)(E)(i) or 
411(a)(6)(E)(i) is the second anniversary of the first day of such 
absence. The period between the first and second anniversaries of the 
first day of absence from work is neither a period of service nor a 
period of severance. This rule applies to maternity and paternity 
absences beginning on or after the first day of the first plan year in 
which the plan is required to credit service under sections 410(a)(5)(E) 
and 411(a)(6)(E).

    (2) Example. The rules of this section are illustrated by the 
following example:
    Assume an individual works until June 30, 1986; is first absent from 
employment on July 1, 1986, on account of maternity or paternity 
absence; and on July 1, 1989, performs an hour of service. The period of 
service must include the period from employment commencement date until 
June 30, 1987 (one year after the date of separation for any reason 
other than a quit, discharge, retirement, or death). The period from 
July 1, 1987, to June 30, 1988, is neither a period of service nor a 
period of severance. The period of severance would be from July 1, 1988, 
to June 30, 1989.

    (b) Other methods. This paragraph provides a safe harbor for plans 
that compute years of service under the hours of service methods or 
permitted equivalencies. Such a plan will be treated as satisfying the 
requirements of sections 410(a)(5)(E) and 411(a)(6)(E) if the plan 
increases the minimum period of consecutive 1-year breaks required to 
disregard any service (or deprive any employee of any right) by one. 
Thus, a plan will satisfy sections 410(a)(5)(E) and 411(a)(6)(E) without 
having to compute service for maternity or paternity and sections 
410(a)(5)(D) and 411 (a)(4)(D) and (a)(6)(C), by increasing the period 
of consecutive breaks-in-service from 5 to 6.

[T.D. 8219, 53 FR 31852, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988]



Sec. 1.410(a)-9T  Elapsed time (temporary).

    (a)-(b) [Reserved]
    (c) Eligibility to participate.
    (1) [Reserved]
    (2) Determination of one-year period of service.
    (i) [Reserved]
    (ii) For purposes of section 410(a)(1)(B)(i), a ``2-year period of 
service'' shall be deemed to be ``2 years of service.''
    (d) Vesting--(1) General rule.
    (i)--(iii) [Reserved]
    (iv) For purposes of determining an employee's nonforfeitable 
percentage of accrued benefits derived from employer contributions, a 
plan, after calculating an employee's period of service in the manner 
prescribed in this

[[Page 457]]

paragraph, may disregard any remaining less than whole year, 12-month or 
365-day period of service. Thus, for example, if a plan provides for the 
statutory three to seven year graded vesting, an employee with a period 
(or periods) of service which yields 3 whole year periods of service and 
an additional 321-day period of service is twenty percent vested in his 
or her employer-derived accrued benefits (based solely on the 3 whole 
year periods of service).

[T.D. 8170, 53 FR 239, Jan. 6, 1988]



Sec. 1.410(b)-0  Table of contents.

    This section contains a listing of the major headings of 
Secs. 1.410(b)-1 through 1.410(b)-10.

Sec. 1.410(b)-1  Minimum coverage requirements (before 1994).
    (a) In general.
    (b) Coverage tests.
    (1) Percentage test.
    (2) Classification test.
    (c) Exclusion of certain employees.
    (1) Bargaining unit.
    (2) Air pilots.
    (3) Nonresident aliens.
    (d) Special rules.
    (1) Highly compensated.
    (2) Discrimination.
    (3) Multiple plans.
    (4) Profit-sharing plans.
    (5) Certain classifications.
    (6) Integration with Social Security Act.
    (7) Different age and service requirements.
    (i) Application.
    (ii) General rule.
    (8) Certain controlled groups.
    (9) Transitional rule.
    (e) Example.

Sec. 1.410(b)-2  Minimum coverage requirements (after 1993).
    (a) In general.
    (b) Requirements with respect to employees.
    (1) In general.
    (2) Ratio percentage test.
    (i) In general.
    (ii) Examples.
    (3) Average benefit test.
    (4) Certain tax credit employee stock ownership plans.
    (5) Employers with no nonhighly compensated employees.
    (6) Plans benefiting no highly compensated employees.
    (7) Plans benefiting collectively bargained employees.
    (c) Requirements with respect to former employees.
    (1) Former employees tested separately.
    (2) Testing former employees.
    (d) Nonelective contributions under section 403(b) plans.
    (e) Certain governmental and church plans.
    (f) Certain acquisitions or dispositions.
    (g) Additional rules.

Sec. 1.410(b)-3  Employees and former employees who benefit under a 
plan.
    (a) Employees benefiting under a plan.
    (1) In general.
    (2) Exceptions to allocation or accrual requirement.
    (i) Section 401(k) and 401(m) plans.
    (ii) Section 415 limits.
    (iii) Certain employees treated as benefiting.
    (iv) Section 412(i) plans.
    (3) Examples.
    (b) Former employees benefiting under a plan.
    (1) In general.
    (2) Examples.

Sec. 1.410(b)-4  Nondiscriminatory classification test.
    (a) In general.
    (b) Reasonable classification established by the employer.
    (c) Nondiscriminatory classification.
    (1) General rule.
    (2) Safe harbor.
    (3) Facts and circumstances.
    (i) General rule.
    (ii) Factual determination.
    (4) Definitions.
    (i) Safe harbor percentage.
    (ii) Unsafe harbor percentage.
    (iii) Nonhighly compensated employee concentration percentage.
    (iv) Table.
    (5) Examples.

Sec. 1.410(b)-5  Average benefit percentage test.
    (a) General rule.
    (b) Determination of average benefit percentage.
    (c) Determination of actual benefit percentage.
    (d) Determination of employee benefit percentages.
    (1) Overview.
    (2) Employee contributions and employee-provided benefits 
disregarded.
    (3) Plans and plan years taken into account.
    (i) Testing group.
    (ii) Testing period.
    (4) Contributions or benefits basis.
    (5) Determination of employee benefit percentage.
    (i) General rule.
    (ii) Plans with differing plan years.
    (iii) Options and consistency requirements.
    (6) Permitted disparity.
    (i) In general.
    (ii) Plans which may not use permitted disparity.

[[Page 458]]

    (7) Requirements for certain plans providing early retirement 
benefits.
    (i) General rule.
    (ii) Exception.
    (e) Additional optional rules.
    (1) Overview.
    (2) Determination of employee benefit percentages as the sum of 
separately determined rates.
    (i) In general.
    (ii) Exception from consistency requirement.
    (iii) Permitted inconsistencies.
    (3) Determination of employee benefit percentages without regard to 
plans of another type.
    (i) General rule.
    (ii) Restriction on use of separate testing group determination 
method.
    (iii) Treatment of permitted disparity.
    (iv) Example.
    (4) Simplified method for determining employee benefit percentages 
for certain defined benefit plans.
    (i) In general.
    (ii) Simplified method.
    (5) Three-year averaging period.
    (6) Alternative methods of determining compensation.
    (f) Special rule for certain collectively bargained plans.

Sec. 1.410(b)-6  Excludable employees.
    (a) Employees.
    (1) In general.
    (2) Rules of application.
    (b) Minimum age and service exclusions.
    (1) In general.
    (2) Multiple age and service conditions.
    (3) Plans benefiting certain otherwise excludable employees.
    (i) In general.
    (ii) Testing portion of plan benefiting otherwise excludable 
employees.
    (4) Examples.
    (c) Certain nonresident aliens.
    (1) General rule.
    (2) Special treaty rule.
    (d) Collectively bargained employees.
    (1) General rule.
    (2) Definition of collectively bargained employee.
    (1) In general.
    (ii) Special rules for certain employees in multiemployer plans.
    (iii) Covered by a collective bargaining agreement.
    (iv) Examples.
    (e) Employees of qualified separate lines of business.
    (f) Certain terminating employees.
    (1) In general.
    (2) Hours of service.
    (3) Examples.
    (g) Employees of certain governmental or tax-exempt entities 
precluded from maintaining a section 401(k) plan.
    (h) Former employees.
    (1) In general.
    (2) Employees terminated before a specified date.
    (3) Previously excludable employees.
    (i) Former employees treated as employees.

Sec. 1.410(b)-7  Definition of plan and rules governing plan 
disaggregation and aggregation.
    (a) In general.
    (b) Separate asset pools are separate plans.
    (c) Mandatory disaggregation of certain plans.
    (1) Section 401(k) and section 401(m) plans.
    (2) ESOPs and non-ESOPs.
    (3) Plans benefiting otherwise excludable employees.
    (4) Plans benefiting certain disaggregation populations of 
employees.
    (i) In general.
    (ii) Definition of disaggregation population.
    (5) Additional rules for plans benefiting employees of more than one 
qualified separate line of business.
    (d) Permissive aggregation for ratio percentage and 
nondiscriminatory classification tests.
    (1) In general.
    (2) Rules of disaggregation.
    (3) Duplicative aggregation.
    (4) Special rule for plans benefiting employees of a qualified 
separate line of business.
    (5) Same plan year requirement.
    (e) Determination of plans in testing group for average benefit 
percentage test.
    (1) In general.
    (2) Example.
    (f) Section 403(b) plans.

Sec. 1.410(b)-8  Additional rules.
    (a) Testing methods.
    (1) In general.
    (2) Daily testing option.
    (3) Quarterly testing option.
    (4) Annual testing option.
    (5) Example.
    (b) Family member aggregation rule.

Sec. 1.410(b)-9  Definitions.
    Collectively bargained employee.
    Defined benefit plan.
    Defined contribution plan.
    Employee.
    Employer.
    ESOP.
    Former employee.
    Highly compensated employee.
    Highly compensated former employee.
    Multiemployer plan.
    Noncollectively bargained employee.
    Nonhighly compensated employee.
    Nonhighly compensated former employee.
    Plan year.
    Plan year compensation.
    Professional employee.

[[Page 459]]

    Ratio percentage.
    Section 401(k) plan.
    Section 401(l) plan.
    Section 401(m) plan.

         Sec. 1.410(b)-10  Effective dates and transition rules.

    (a) Statutory effective dates.
    (1) In general.
    (2) Special statutory effective date for collective bargaining 
agreements.
    (i) In general.
    (ii) Example.
    (iii) Plan maintained pursuant to a collective bargaining agreement.
    (b) Regulatory effective dates.
    (1) In general.
    (2) Plans of tax-exempt organizations.
    (c) Compliance during transition period.
    (d) Effective date for governmental plans.

[T.D. 8363, 56 FR 47641, Sept. 19, 1991; 57 FR 10954, Mar. 31, 1992, as 
amended by T.D. 8487, 58 FR 46838, Sept. 3, 1993; T.D. 8548, 59 FR 
32914, June 27, 1994]



Sec. 1.410(b)-1  Minimum coverage requirements (before 1994).

    (a) In general. A plan is not a qualified plan (and a trust forming 
a part of the plan is not a qualified trust) unless the plan satisfies 
section 410(b)(1). For plan years prior to the applicable effective date 
set forth in Sec. 1.410(b)-10, a plan satisfies section 410(b)(1) if it 
satisfies the requirements of paragraph (b)(1) or (b)(2) of this 
section. See also Sec. 1.410(b)-2 for plan years beginning on or after 
the applicable effective date set forth in Sec. 1.410(b)-10.
    (b) Coverage tests--(1) Percentage test. A plan satisfies the 
requirements of this subparagraph if it benefits--
    (i) Seventy percent or more of all employees, or
    (ii) Eighty percent or more of all employees who are eligible to 
benefit under the plan if 70 percent or more of all the employees are 
eligible to benefit under the plan,

excluding in each case employees who have not satisfied the minimum age 
and service requirements (if any) prescribed by the plan, as of the date 
coverage is tested, as a condition of participation and employees 
permitted to be excluded under paragraph (c) of this section. The 
percentage requirements of this subparagraph refer to a percentage of 
active employees, including employees temporarily on leave, such as 
those in the Armed Forces of the United States, if such employees are 
eligible under the plan.
    (2) Classification test. A plan satisfies the requirements of 
section 410(b)(1) and this subparagraph if it benefits such employees as 
qualify under a classification of employees set up by the employer, 
which classification is found by the Internal Revenue Service not to be 
discriminatory in favor of employees who are officers, shareholders, or 
highly compensated. For purposes of this subparagraph, except as 
provided by paragraph (c) of this section, all active employees 
(including employees who do not satisfy the minimum age or service 
requirements of the plan) are taken into account.
    (c) Exclusion of certain employees. Under section 410(b)(2), for 
purposes of section 410(b)(1) and paragraph (b) of this section, there 
shall be excluded from consideration employees described in 
subparagraphs (1), (2), and (3) of this paragraph.
    (1) Bargaining unit. Under section 410(b)(2)(A) and this paragraph, 
there may be excluded from consideration employees not included in the 
plan who are included in a unit of employees covered by an agreement 
which the Secretary of Labor finds to be a collective bargaining 
agreement between employee representatives and one or more employers, if 
the Internal Revenue Service finds that retirement benefits were the 
subject of good faith bargaining between such employee representatives 
and such employer or employers. For purposes of determining whether such 
bargaining occurred, it is not material that such employees are not 
covered by another plan or that the plan was not considered in such 
bargaining.
    (2) Air pilots. Under section 410(b)(2)(B) and this paragraph there 
may be excluded from consideration, in the case of a plan established or 
maintained pursuant to an agreement which the Secretary of Labor finds 
to be a collective bargaining agreement between air pilots represented 
in accordance with title II of the Railway Labor Act and one or more 
employers all employees not covered by such agreement. Section 
410(b)(2)(B) and this subparagraph do not apply to a plan if the plan 
provides contributions or benefits for employees whose principal duties 
are

[[Page 460]]

not customarily performed aboard aircraft in flight.
    (3) Nonresident aliens. Under section 410(b)(2)(C) and this 
paragraph, there may be excluded from consideration employees who are 
nonresident aliens and who receive no earned income (within the meaning 
of section 911(b) and the regulations thereunder) from the employer 
which constitutes income from sources within the United States (within 
the meaning of section 861(a)(3) and the regulations thereunder).
    (d) Special rules--(1) Highly compensated. The classification of an 
employee as highly compensated for purposes of section 410(b)(1)(B) and 
Sec. 1.410(b)-1(b)(2) is made on the basis of the facts and 
circumstances of each case, taking into account the level of the 
employee's compensation and the level of compensation paid by the 
employer to other employees, whether or not covered by the plan. Average 
compensation levels determined on a local, regional, or national basis, 
are not relevant for this purpose. Further, the classification of an 
employee as highly compensated is not made solely on the basis of the 
number or percentage of employees whose compensation exceeds, or is 
exceeded by, the employee's.
    (2) Discrimination. The determination as to whether a plan 
discriminates in favor of employees who are officers, shareholders, or 
highly compensated is made on the basis of the facts and circumstances 
of each case, allowing a reasonable difference between the ratio of such 
employees benefited by the plan to all such employees of the employer 
and the ratio of the employees (other than officers, shareholders, or 
highly compensated) of the employer benefited by the plan to all 
employees (other than officers, shareholders, or highly compensated). A 
showing that a specified percentage of employees covered by a plan are 
not officers, shareholders, or highly compensated, is not in itself 
sufficient to establish that the plan does not discriminate in favor of 
employees who are officers, shareholders, or highly compensated.
    (3) Multiple plans--(i) An employer may designate two or more plans 
as constituting a single plan which is intended to qualify for purposes 
of section 410(b)(1) and this section, in which case all plans so 
designated shall be considered as a single plan in determining whether 
the requirements of such section are satisfied by each of the separate 
plans. A determination that the combination of plans so designated does 
not satisfy such requirements does not preclude a determination that one 
or more of such plans, considered separately, satisfies such 
requirements.
    (ii) Notwithstanding subdivision (i) of this subparagraph, a plan 
which is subject to the limitations of section 401(a)(17) of the Code or 
section 301(d)(3) of the Tax Reduction Act of 1975 cannot be considered 
with any other plan which covers any employee covered by such plan.
    (4) Profit-sharing plans. Employees under a profit-sharing plan who 
receive the amounts allocated to their accounts before the expiration of 
a period of time or the occurrence of a contingency specified in the 
plan shall not be considered covered by the plan. Thus, in case a plan 
permits employees to receive immediately the amounts allocated to their 
accounts, or to have such amounts paid to a profit-sharing plan for 
them, the employees who receive the shares immediately shall not be 
considered covered by the plan.
    (5) Certain classifications. See section 401(a)(5) and the 
regulations thereunder for rules relating to classifications of 
employees which are not considered to be discriminatory per se for 
purposes of section 410(b)(1)(B) and Sec. 1.410(b)-1(b)(2).
    (6) Integration with Social Security Act. See section 401(a)(5) and 
the regulations thereunder for rules relating to integration of plans 
with the Social Security Act.
    (7) Different age and service requirements--(i) Application. The 
rules of this subparagraph (7) apply to a plan which must satisfy the 
minimum age and service requirements of section 410(a)(1)(A) in order to 
be a qualified plan. Accordingly, the rules are inapplicable to plans 
described in section 410(c)(1) (see Sec. 1.410(a)-1(c)(1)); plans 
satisfying the alternative minimum age and service requirements of 
section 410(a)(1)(B) but not satisfying the requirements of section 
410(a)(1)(A); and plans which provide contributions or

[[Page 461]]

benefits for employees, some or all of whom are owner-employees (see 
section 401(a)(10)).
    (ii) General rules. A provision for different age and service 
requirements for present and future employees either upon establishment 
or subsequent amendment is not, of itself, discriminatory under section 
410(b)(1)(B) even though present employees who are officers, 
shareholders, or highly compensated cannot meet the age and service 
requirements for future employees at the time the plan is established or 
amended and even though present participants who are officers, 
shareholders, or highly compensated would not have satisfied the age and 
service requirements for future employees at the time they became 
participants in the plan. Furthermore, prohibited discrimination will be 
deemed not to arise in operation, solely because of such different 
requirements, when future employees are added to the employer's work 
force.
    (8) Certain controlled groups. In applying the percentage test and 
classification test described in paragraph (b) (1) and (2) of this 
section for a year, all the employees of corporations or trades and 
businesses whose employees are treated as employed by a single employer 
by reason of section 414 (b) or (c) must be taken into account. The 
preceding sentence shall apply for a plan year if, on 1 day in each 
quarter of such plan year, such corporations are members of a controlled 
group of corporations (within the meaning of section 414(b)) of such 
trades or businesses are under common control (within the meaning of 
section 414(c)).
    (9) Transitional rule. In the case of a cash and deferred profit-
sharing plan, in existence on June 27, 1974, the requirements of 
paragraph (b)(2) of this section are satisfied if over one-half of the 
participants in the plan are among the lowest paid two-thirds of all 
eligible employees. This subparagraph shall not apply after December 31, 
1977.
    (e) Example. The rules provided by this section are illustrated by 
the following example:

    Example. An employer established a non-contributory defined benefit 
plan covering all employees of its ABC Division who are hired prior to 
age 60 and who are at least 25 years old. The normal retirement age 
under the plan is age 65. The employer has 100 employees including 20 
employees who are under age 25 and 10 employees who were hired over age 
60. The plan does not cover 15 employees who are over age 25 and were 
hired before age 60 because they are not in the ABC Division. Of these 
15 excluded employees, 3 have less than 1 year of service. In addition, 
12 of the 55 employees covered have less than one year of service. The 
plan can be shown not to satisfy the requirements of IRC section 
410(b)(1)(A) as follows:

(i) Number of employees........................................      100
(ii) Number of employees excluded on account of minimum age and         
 service.......................................................       20
(iii) (i)-(ii).................................................       80
(iv) Number of employees who must be covered if plan is to              
 satisfy IRC section 410(b)(1)(A), 70% of (iii)................       56
(v) Number of employees actually covered.......................       55
                                                                        

Because the number of employees covered is less than the number of 
employees who must be covered, the plan does not satisfy the percentage 
coverage requirements of IRC section 410(b)(1)(A).

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47197, Sept. 20, 1977, as amended by T.D. 7735, 45 FR 
74722, Nov. 12, 1980; T.D. 8363, 56 FR 47643, Sept. 19, 1991; T.D. 8487, 
58 FR 46839, Sept. 3, 1993]



Sec. 1.410(b)-2  Minimum coverage requirements (after 1993).

    (a) In general. A plan is a qualified plan for a plan year only if 
the plan satisfies section 410(b) for the plan year. A plan satisfies 
section 410(b) for a plan year if and only if it satisfies paragraph (b) 
of this section with respect to employees for the plan year and 
paragraph (c) of this section with respect to former employees for the 
plan year. The rules in paragraphs (a), (b), and (c) of this section 
apply to all plans as a condition of qualification, including plans 
under which no employee is able to accrue any additional benefits (for 
example, frozen plans). Paragraphs (d), (e), and (f) of this section 
provide special rules for nonelective section 403(b) plans subject to 
section 403(b)(12)(A)(i), for governmental and church plans subject to 
section 410(c), and for certain acquisitions or dispositions, 
respectively. See Sec. 1.410(b)-7 for rules for determining the ``plan'' 
subject to section 410(b).
    (b) Requirements with respect to employees--(1) In general. A plan 
satisfies this paragraph (b) for a plan year if and only if it satisfies 
at least one of the

[[Page 462]]

tests in paragraphs (b)(2) through (b)(7) of this section for the plan 
year.
    (2) Ratio percentage test--(i) In general. A plan satisfies this 
paragraph (b)(2) for a plan year if and only if the plan's ratio 
percentage for the plan year is at least 70 percent. This test 
incorporates both the percentage test of section 410(b)(1)(A) and the 
ratio test of section 410(b)(1)(B). See Sec. 1.410(b)-9 for the 
definition of ratio percentage.
    (ii) Examples. The following examples illustrate the ratio 
percentage test of this paragraph (b)(2).

    Example 1. For a plan year, Plan A benefits 70 percent of an 
employer's nonhighly compensated employees and 100 percent of the 
employer's highly compensated employees. The plan's ratio percentage for 
the year is 70 percent (70 percent/100 percent), and thus the plan 
satisfies the ratio percentage test.
    Example 2. For a plan year, Plan B benefits 40 percent of the 
employer's nonhighly compensated employees and 60 percent of the 
employer's highly compensated employees. Plan B fails to satisfy the 
ratio percentage test because the plan's ratio percentage is only 66.67 
percent (40 percent/60 percent).

    (3) Average benefit test. A plan satisfies this paragraph (b)(3) for 
a plan year if and only if the plan satisfies both the nondiscriminatory 
classification test of Sec. 1.410(b)-4 and the average benefit 
percentage test of Sec. 1.410(b)-5 for the plan year.
    (4) Certain tax credit employee stock ownership plans. A plan 
satisfies this paragraph (b)(4) for a plan year if and only if the 
plan--
    (i) Is a tax credit employee stock ownership plan (as defined in 
section 409(a)),
    (ii) Is the only plan of the employer that is intended to qualify 
under section 401(a), and
    (iii) Is a plan that satisfies the rule set forth in section 
410(b)(6)(D).
    This paragraph (b)(4) is available only for plan years for which the 
tax credit employee stock ownership plan receives contributions for 
which the employer is allowed a tax credit under section 41 (as in 
effect prior to its repeal by the Tax Reform Act of 1986) or section 
48(n) (as in effect prior to its amendment by the Tax Reform Act of 
1984). The requirement of this paragraph (b)(4) that the plan be the 
only plan of the employer that is intended to qualify under section 
401(a) is not satisfied if the employer has only one plan, but that plan 
is treated as two or more separate plans under the mandatory 
disaggregation rules of Sec. 1.410(b)-7(c).
    (5) Employers with no nonhighly compensated employees. A plan 
satisfies this paragraph (b)(5) for a plan year if and only if the plan 
is maintained by an employer that has no nonhighly compensated employees 
at any time during the plan year.
    (6) Plans benefiting no highly compensated employees. A plan 
satisfies this paragraph (b)(6) for a plan year if and only if the plan 
benefits no highly compensated employees for the plan year.
    (7) Plans benefiting collectively bargained employees. A plan that 
benefits solely collectively bargained employees for a plan year 
satisfies this paragraph (b)(7) for the plan year. If a plan (within the 
meaning of Sec. 1.410(b)-7(b)) benefits both collectively bargained 
employees and noncollectively bargained employees for a plan year, 
Sec. 1.410(b)-7(c)(4) provides that the portion of the plan that 
benefits collectively bargained employees is treated as a separate plan 
from the portion of the plan that benefits noncollectively bargained 
employees. Thus, the mandatorily disaggregated portion of the plan that 
benefits the collectively bargained employees automatically satisfies 
this paragraph (b)(7) for the plan year and hence section 410(b). See 
Sec. 1.410(b)-9 for the definitions of collectively bargained employee 
and noncollectively bargained employee.
    (c) Requirements with respect to former employees--(1) Former 
employees tested separately. Former employees are tested separately from 
employees for purposes of section 410(b). Thus, former employees are 
disregarded in applying the ratio percentage test, the nondiscriminatory 
classification test, and the average benefit percentage test with 
respect to the coverage of employees under a plan, and employees are 
disregarded in applying this section with respect to the coverage of 
former employees under a plan.
    (2) Testing former employees. A plan satisfies section 410(b) with 
respect to former employees if and only if, under all of the relevant 
facts and circumstances (including the group of

[[Page 463]]

nonexcludable former employees not benefiting under the plan), the group 
of former employees benefiting under the plan does not discriminate 
significantly in favor of highly compensated former employees.
    (d) Nonelective contributions under section 403(b) plans. For plan 
years beginning on or after January 1, 1989, a plan subject to section 
403(b)(12)(A)(i) with respect to nonelective contributions (i.e., 
contributions not made pursuant to a salary reduction agreement) is 
treated as a plan subject to the requirements of this section. For this 
purpose, a plan described in the preceding sentence must satisfy the 
requirements of this section without regard to section 410(c) and 
paragraph (e) of this section. For plan years beginning before the 
effective date set forth in Sec. 1.410(b)-10(d), any plan described in 
section 410(c)(1)(A) (regarding governmental plans) satisfies the 
requirements of this section.
    (e) Certain governmental and church plans. The requirements of 
section 410(b) do not apply to a plan described in section 410(c)(1) 
(other than a plan subject to section 403(b)(12)(A)(i) or a plan with 
respect to which an election has been made under section 410(d)). Such a 
plan must satisfy section 401(a)(3) as in effect on September 1, 1974. 
For this purpose, a plan that satisfies section 410(b) (without regard 
to this paragraph (e)) is treated as satisfying section 401(a)(3) as in 
effect on September 1, 1974. For plan years beginning before the 
effective date set forth in Sec. 1.410(b)-10(d), any plan described in 
section 410(c)(1)(A) (regarding governmental plans) satisfies the 
requirements of this section and is thus treated as satisfying the 
requirements of section 401(a)(3) as in effect on September 1, 1974. See 
Sec. 1.410(b)-10(b)(2) for a special rule for plans of tax-exempt 
organizations.
    (f) Certain acquisitions or dispositions. Section 410(b)(6)(C) 
(relating to certain acquisitions or dispositions) provides a special 
rule whereby a plan may be treated as satisfying section 410(b) for a 
limited period of time after an acquisition or disposition if it 
satisfies section 410(b) (without regard to the special rule) 
immediately before the acquisition or disposition and there is no 
significant change in the plan or in the coverage of the plan other than 
the acquisition or disposition. For purposes of section 410(b)(6)(C) and 
this paragraph (f), the terms ``acquisition'' and ``disposition'' refer 
to an asset or stock acquisition, merger, or other similar transaction 
involving a change in employer of the employees of a trade or business.
    (g) Additional rules. The Commissioner may, in revenue rulings, 
notices, and other guidance of general applicability, provide any 
additional rules that may be necessary or appropriate in applying the 
minimum coverage requirements of section 410(b), including (without 
limitation) additional rules limiting or expanding the methods in 
Sec. 1.410(b)-5(d) and (e) for determining employee benefit percentages.

[T.D. 8363, 56 FR 47643, Sept. 19, 1991; 57 FR 10817, Mar. 31, 1992, as 
amended by T.D. 8487, 58 FR 46839, Sept. 3, 1993; T.D. 8548, 59 FR 
32914, June 27, 1994]



Sec. 1.410(b)-3  Employees and former employees who benefit under a plan.

    (a) Employees benefiting under a plan--(1) In general. Except as 
provided in paragraph (a)(2) of this section, an employee is treated as 
benefiting under a plan for a plan year if and only if for that plan 
year, in the case of a defined contribution plan, the employer receives 
an allocation taken into account under Sec. 1.401(a)(4)-2(c)(2)(ii), or 
in the case of a defined benefit plan, the employee has an increase in a 
benefit accrued or treated as an accrued benefit under section 
411(d)(6).
    (2) Exceptions to allocation or accrual requirement--(i) Section 
401(k) and 401(m) plans. Notwithstanding paragraph (a)(1) of this 
section, an employee is treated as benefiting under a section 401(k) 
plan for a plan year if and only if the employee is an eligible employee 
under the plan as defined in Sec. 1.401(k)-1(g)(4) for the plan year. 
Similarly, an employee is treated as benefiting under a section 401(m) 
plan for a plan year if and only if the employee is an eligible employee 
as defined in Sec. 1.401(m)-1(f)(4) for the plan year.
    (ii) Section 415 limits--(A) General rule for defined benefit plans. 
In determining whether an employee is treated as benefiting under a 
defined benefit plan for

[[Page 464]]

a plan year, plan provisions that implement the limits of section 415 
are disregarded. Any plan provision that provides for increases in an 
employee's accrued benefit under the plan due solely to adjustments 
under section 415(d)(1), additional years of participation or service 
under section 415(b)(5), or changes in the defined contribution fraction 
under section 415(e) is also disregarded, but only if such provision 
applies uniformly to all employees in the plan.
    (B) Defined benefit plans taking section 415 limits into account 
under section 401(a)(4) testing. Paragraph (a)(2)(ii)(A) of this section 
does not apply in the case of a defined benefit plan that uses the 
option in Sec. 1.401(a)(4)-3(d)(2)(ii)(B) to take into account plan 
provisions implementing the provisions of section 415 in determining 
accrual rates under the section 401(a)(4) general test.
    (C) Defined contribution plans. A defined contribution plan is 
permitted to apply the rule in the first sentence of paragraph 
(a)(2)(ii)(A) of this section in determining whether an employee is 
treated as benefiting under the plan, provided it applies the rule on a 
consistent basis for all employees in the plan.
    (iii) Certain employees treated as benefiting--(A) In general. An 
employee is treated as benefiting under a plan for a plan year if the 
employee satisfies all of the applicable conditions for accruing a 
benefit or receiving an allocation for the plan year but fails to have 
an increase in accrued benefit or to receive an allocation solely 
because of one or more of the conditions set forth in paragraphs 
(a)(2)(iii) (B) through (F) of this section.
    (B) Certain plan limits. The employee's benefit would otherwise 
exceed a limit that is applicable on a uniform basis to all employees in 
the plan. Thus, for example, if the formula under a defined benefit plan 
takes into account only the first 30 years of service for accrual 
purposes, an employee who has completed more than 30 years of service is 
still treated as benefiting under the plan.
    (C) Benefits previously accrued. The benefit previously accrued by 
the employee is greater than the benefit that would be determined under 
the plan if the benefit previously accrued were disregarded. This could 
happen, for example, when the plan is applying the wear-away formula of 
Sec. 1.401(a)(4)-13(c)(4)(ii) and the employee's frozen accrued benefit 
exceeds the benefit determined under the current formula.
    (D) Benefit offset arrangements. The plan offsets the employee's 
current benefit accrual under an offset arrangement described in 
Sec. 1.401(a)(4)-3(f)(9) (without regard to whether the offset is 
attributable to pre-participation service or past service).
    (E) Target benefit plans. In the case of a target benefit plan that 
satisfies the nondiscriminatory amount requirement of Sec. 1.401(a)(4)-
1(b)(2) by satisfying the safe harbor in Sec. 1.401(a)(4)-8(b)(3), the 
employee's theoretical reserve is greater than or equal to the actuarial 
present value of the fractional rule benefit.
    (F) Post-normal retirement age adjustments. The employee has 
attained normal retirement age under a defined benefit plan and fails to 
accrue a benefit because of the provisions of section 411(b)(1)(H)(iii) 
regarding adjustments for delayed retirement.
    (iv) Section 412(i) plans--(A) General rule. Notwithstanding 
paragraph (a)(1) of this section, an employee is treated as benefiting 
under an insurance contract plan within the meaning of section 412(i) 
for a plan year if and only if a premium is paid on behalf of the 
employee for the plan year.
    (B) Exceptions. Notwithstanding paragraph (a)(2)(iv)(A) of this 
section, an employee is treated as benefiting under an insurance 
contract plan within the meaning of section 412(i) for a plan year if 
the sole reason that a premium is not paid on behalf of the employee is 
one of the reasons described in paragraph (a)(2)(iii) of this section. 
In addition, an employee is treated as benefiting under an insurance 
contract plan, within the meaning of section 412(i), that is a defined 
benefit plan if a premium is not paid on behalf of the employee solely 
because the insurance contracts that have previously been purchased on 
behalf of the employee guarantee to provide for the employee's projected 
normal retirement benefit without regard to future premium payments.

[[Page 465]]

    (3) Examples. The following examples illustrate the determination of 
whether an employee is benefiting under a plan for purposes of section 
410(b).

    Example 1. An employer has 35 employees who are eligible under a 
defined benefit plan. The plan requires 1,000 hours of service to accrue 
a benefit. Only 30 employees satisfy the 1,000-hour requirement and 
accrue a benefit. The five employees who do not satisfy the 1,000-hour 
requirement during the plan year are taken into account in testing the 
plan under section 410(b) but are treated as not benefiting under the 
plan.
    Example 2. An employer maintains a section 401(k) plan. Only 
employees who are at least age 21 and who complete one year of service 
are eligible employees under the plan within the meaning of 
Sec. 1.401(k)-1(g)(4). Under the rule of paragraph (a)(2)(i) of this 
section, only employees who have satisfied these age and service 
conditions are treated as benefiting under the plan.
    Example 3. The facts are the same as in Example 2, except that the 
employer also maintains a section 401(m) plan that provides matching 
contributions contingent on elective contributions under the section 
401(k) plan. The matching contributions are contingent on employment on 
the last day of the plan year. Under Sec. 1.401(m)-1(f)(4), because 
matching contributions are contingent on employment on the last day of 
the plan year, not all employees who are eligible employees under the 
section 401(k) plan are eligible employees under the section 401(m) 
plan. Thus, employees who have satisfied the age and service conditions 
but who do not receive a matching contribution because they are not 
employed on the last day of the plan year are treated as not benefiting 
under the section 401(m) portion of the plan.

    (b) Former employees benefiting under a plan--(1) In general. A 
former employee is treated as benefiting for a plan year if and only if 
the plan provides an allocation or benefit increase described in 
paragraph (a)(1) of this section to the former employee for the plan 
year. Thus, for example, a former employee benefits under a defined 
benefit plan for a plan year if the plan is amended to provide an ad hoc 
cost-of-living adjustment in the former employee's benefits. In 
contrast, because an increase in benefits payable under a plan pursuant 
to an automatic cost-of-living provision adopted and effective before 
the beginning of the plan year is previously accrued, a former employee 
is not treated as benefiting in a subsequent plan year merely because 
the former employee receives an increase pursuant to such an automatic 
cost-of-living provision. Any accrual or allocation for an individual 
during the plan year that arises from the individual's status as an 
employee is treated as an accrual or allocation of an employee. 
Similarly, any accrual or allocation for an individual during the plan 
year that arises from the individual's status as a former employee is 
treated as an accrual or allocation of a former employee. It is possible 
for an individual to accrue a benefit both as an employee and as a 
former employee in a given plan year. During the plan year in which an 
individual ceases performing services for the employer, the individual 
is treated as an employee in applying section 410(b) with respect to 
employees and is treated as a former employee in applying section 410(b) 
with respect to former employees.
    (2) Examples. The following examples illustrate the determination of 
whether a former employee benefits under a plan for purposes of section 
410(b).

    Example 1. Employer A amends its defined benefit plan in the 1995 
plan year to provide an ad hoc cost-of-living increase of 5 percent for 
all retirees. Former employees who receive this increase are treated as 
benefiting under the plan for the 1995 plan year.
    Example 2. Employer B maintains a defined benefit plan with a 
calendar plan year. In the 1995 plan year, Employer B amends the plan to 
provide that an employee who has reached early retirement age under the 
plan and who retires before July 31 of the 1995 plan year will receive 
an unreduced benefit, even though the employee has not yet reached 
normal retirement age. This early retirement window benefit is provided 
to employees based on their status as employees. Thus, although 
individuals who take advantage of the benefit become former employees, 
the window benefit is treated as provided to employees and is not 
treated as a benefit for former employees.
    Example 3. The facts are the same as Example 2, except that on 
September 1, 1995, Employer B also amends the defined benefit plan to 
provide an ad hoc cost-of-living increase effective for all former 
employees. An individual who ceases performing services for the employer 
before July 31, 1995, under the early retirement window, and then 
receives the ad hoc cost-of-living increase, is treated as benefiting 
for the 1995 plan year both as an employee with respect to the

[[Page 466]]

early retirement window, and as a former employee with respect to the ad 
hoc COLA.

[T.D. 8363, 56 FR 47644, Sept. 19, 1991; 57 FR 10954, Mar. 31, 1992, as 
amended by T.D. 8487, 58 FR 46839, Sept. 3, 1993]



Sec. 1.410(b)-4  Nondiscriminatory classification test.

    (a) In general. A plan satisfies the nondiscriminatory 
classification test of this section for a plan year if and only if, for 
the plan year, the plan benefits the employees who qualify under a 
classification established by the employer in accordance with paragraph 
(b) of this section, and the classification of employees is 
nondiscriminatory under paragraph (c) of this section.
    (b) Reasonable classification established by the employer. A 
classification is established by the employer in accordance with this 
paragraph (b) if and only if, based on all the facts and circumstances, 
the classification is reasonable and is established under objective 
business criteria that identify the category of employees who benefit 
under the plan. Reasonable classifications generally include specified 
job categories, nature of compensation (i.e., salaried or hourly), 
geographic location, and similar bona fide business criteria. An 
enumeration of employees by name or other specific criteria having 
substantially the same effect as an enumeration by name is not 
considered a reasonable classification.
    (c) Nondiscriminatory classification--(1) General rule. A 
classification is nondiscriminatory under this paragraph (c) for a plan 
year if and only if the group of employees included in the 
classification benefiting under the plan satisfies the requirements of 
either paragraph (c)(2) or (c)(3) of this section for the plan year.
    (2) Safe harbor. A plan satisfies the requirement of this paragraph 
(c)(2) for a plan year if and only if the plan's ratio percentage is 
greater than or equal to the employer's safe harbor percentage, as 
defined in paragraph (c)(4)(i) of this section. See Sec. 1.410(b)-9 for 
the definition of a plan's ratio percentage.
    (3) Facts and circumstances--(i) General rule. A plan satisfies the 
requirements of this paragraph (c)(3) if and only if--
    (A) The plan's ratio percentage is greater than or equal to the 
unsafe harbor percentage, as defined in paragraph (c)(4)(ii) of this 
section, and
    (B) The classification satisfies the factual determination of 
paragraph (c)(3)(ii) of this section.
    (ii) Factual determination. A classification satisfies this 
paragraph (c)(3)(ii) if and only if, based on all the relevant facts and 
circumstances, the Commissioner finds that the classification is 
nondiscriminatory. No one particular fact is determinative. Included 
among the facts and circumstances relevant in determining whether a 
classification is nondiscriminatory are the following--
    (A) The underlying business reason for the classification. The 
greater the business reason for the classification, the more likely the 
classification is to be nondiscriminatory. Reducing the employer's cost 
of providing retirement benefits is not a relevant business reason.
    (B) The percentage of the employer's employees benefiting under the 
plan. The higher the percentage, the more likely the classification is 
to be nondiscriminatory.
    (C) Whether the number of employees benefiting under the plan in 
each salary range is representative of the number of employees in each 
salary range of the employer's workforce. In general, the more 
representative the percentages of employees benefiting under the plan in 
each salary range, the more likely the classification is to be 
nondiscriminatory.
    (D) The difference between the plan's ratio percentage and the 
employer's safe harbor percentage. The smaller the difference, the more 
likely the classification is to be nondiscriminatory.
    (E) The extent to which the plan's average benefit percentage 
(determined under Sec. 1.410(b)-5) exceeds 70 percent.
    (4) Definitions--(i) Safe harbor percentage. The safe harbor 
percentage of an employer is 50 percent, reduced by \3/4\ of a 
percentage point for each whole percentage point by which the nonhighly 
compensated employee concentration percentage exceeds 60 percent. See

[[Page 467]]

paragraph (c)(4)(iv) for a table that illustrates the safe harbor 
percentage and unsafe harbor percentage.
    (ii) Unsafe harbor percentage. The unsafe harbor percentage of an 
employer is 40 percent, reduced by \3/4\ of a percentage point for each 
whole percentage point by which the nonhighly compensated employee 
concentration percentage exceeds 60 percent. However, in no case is the 
unsafe harbor percentage less than 20 percent.
    (iii) Nonhighly compensated employee concentration percentage. The 
nonhighly compensated employee concentration percentage of an employer 
is the percentage of all the employees of the employer who are nonhighly 
compensated employees. Employees who are excludable employees for 
purposes of the average benefit test are not taken into account.
    (iv) Table. The following table sets forth the safe harbor and 
unsafe harbor percentages at each nonhighly compensated employee 
concentration percentage:

------------------------------------------------------------------------
  Nonhighly compensated                                                 
 employee concentration   Safe harbor percentage       Unsafe harbor    
       percentage                                       percentage      
------------------------------------------------------------------------
0-60....................              50.00                   40.00     
61......................              49.25                   39.25     
62......................              48.50                   38.50     
63......................              47.75                   37.75     
64......................              47.00                   37.00     
65......................              46.25                   36.25     
66......................              45.50                   35.50     
67......................              44.75                   34.75     
68......................              44.00                   34.00     
69......................              43.25                   33.25     
70......................              42.50                   32.50     
71......................              41.75                   31.75     
72......................              41.00                   31.00     
73......................              40.25                   30.25     
74......................              39.50                   29.50     
75......................              38.75                   28.75     
76......................              38.00                   28.00     
77......................              37.25                   27.25     
78......................              36.50                   26.50     
79......................              35.75                   25.75     
80......................              35.00                   25.00     
81......................              34.25                   24.25     
82......................              33.50                   23.50     
83......................              32.75                   22.75     
84......................              32.00                   22.00     
85......................              31.25                   21.25     
86......................              30.50                   20.50     
87......................              29.75                   20.00     
88......................              29.00                   20.00     
89......................              28.25                   20.00     
90......................              27.50                   20.00     
91......................              26.75                   20.00     
92......................              26.00                   20.00     
93......................              25.25                   20.00     
94......................              24.50                   20.00     
95......................              23.75                   20.00     
96......................              23.00                   20.00     
97......................              22.25                   20.00     
98......................              21.50                   20.00     
99......................              20.75                   20.00     
------------------------------------------------------------------------

    (5) Examples. The following examples illustrate the rules in this 
paragraph (c).

    Example 1. Employer A has 200 nonexcludable employees, of whom 120 
are nonhighly compensated employees and 80 are highly compensated 
employees. Employer A maintains a plan that benefits 60 nonhighly 
compensated employees and 72 highly compensated employees. Thus, the 
plan's ratio percentage is 55.56 percent ([60/120]/[72/80]=50%/
90%=0.5556), which is below the percentage necessary to satisfy the 
ratio percentage test of Sec. 1.410(b)-2(b)(2). The employer's nonhighly 
compensated employee concentration percentage is 60 percent (120/200); 
thus, Employer A's safe harbor percentage is 50 percent and its unsafe 
harbor percentage is 40 percent. Because the plan's ratio percentage is 
greater than the safe harbor percentage, the plan's classification 
satisfies the safe harbor of paragraph (c)(2) of this section.
    Example 2. The facts are the same as in Example 1, except that the 
plan benefits only 40 nonhighly compensated employees. The plan's ratio 
percentage is thus 37.03 percent ([40/120]/[72/80]=33.33%/90%=0.3703). 
Under these facts, the plan's classification is below the unsafe harbor 
percentage and is thus considered discriminatory.
    Example 3. The facts are the same as in Example 1, except that the 
plan benefits 45 nonhighly compensated employees. The plan's ratio 
percentage is thus 41.67 percent ([45/120]/[72/80]=37.50%/90%=0.4167), 
above the unsafe harbor percentage (40 percent) and below the safe 
harbor percentage (50 percent). The Commissioner may determine that the 
classification is nondiscriminatory after considering all the relevant 
facts and circumstances.
    Example 4. Employer B has 10,000 nonexcludable employees, of whom 
9,600 are nonhighly compensated employees and 400 are highly compensated 
employees. Employer B maintains a plan that benefits 600 nonhighly 
compensated employees and 100 highly compensated employees. Thus, the 
plan's ratio percentage is 25.00 percent ([600/9,600]/[100/400]=6.25%/
25%=0.2500), which is below the percentage necessary to satisfy the 
ratio percentage test of Sec. 1.410(b)-2(b)(2). Employer B's nonhighly 
compensated employee concentration percentage is 96 percent (9,600/
10,000); thus, Employer B's safe harbor percentage is 23 percent, and 
its unsafe harbor percentage

[[Page 468]]

is 20 percent. Because the plan's ratio percentage (25.00 percent) is 
greater than the safe harbor percentage (23.00 percent), the plan's 
classification satisfies the safe harbor of paragraph (c)(2) of this 
section.
    Example 5. The facts are the same as in Example 4, except that the 
plan benefits only 400 nonhighly compensated employees. The plan's ratio 
percentage is thus 16.67 percent ([400/9,600]/[100/400]=4.17%/
25%=0.1667). The plan's ratio percentage is below the unsafe harbor 
percentage and thus the classification is considered discriminatory.
    Example 6. The facts are the same as in Example 4, except that the 
plan benefits 500 nonhighly compensated employees. The plan's ratio 
percentage is thus 20.83 percent ([500/9,600]/[100/400]=5.21%/
25%=0.2083), above the unsafe harbor percentage (20 percent) and below 
the safe harbor percentage (23 percent). The Commissioner may determine 
that the classification is nondiscriminatory after considering all the 
facts and circumstances.

[T.D. 8363, 56 FR 47645, Sept. 19, 1991; 57 FR 10954, Mar. 31, 1992]



Sec. 1.410(b)-5  Average benefit percentage test.

    (a) General rule. A plan satisfies the average benefit percentage 
test of this section for a plan year if and only if the average benefit 
percentage of the plan for the plan year is at least 70 percent. A plan 
is deemed to satisfy this requirement if it satisfies paragraph (f) of 
this section for the plan year.
    (b) Determination of average benefit percentage. The average benefit 
percentage of a plan for a plan year is the percentage determined by 
dividing the actual benefit percentage of the nonhighly compensated 
employees in plans in the testing group for the testing period that 
includes the plan year by the actual benefit percentage of the highly 
compensated employees in plans in the testing group for that testing 
period. See paragraph (d)(3)(ii) of this section for the definition of 
testing period.
    (c) Determination of actual benefit percentage. The actual benefit 
percentage of a group of employees for a testing period is the average 
of the employee benefit percentages, calculated separately with respect 
to each of the employees in the group for the testing period. All 
nonexcludable employees of the employer are taken into account for this 
purpose, even if they are not benefiting under any plan that is taken 
into account.
    (d) Determination of employee benefit percentages--(1) Overview. 
This paragraph (d) provides rules for determining employee benefit 
percentages. See paragraph (e) of this section for alternative methods 
for determining employee benefit percentages.
    (2) Employee contributions and employee-provided benefits 
disregarded. Only employer-provided contributions and benefits are taken 
into account in determining employee benefit percentages. Therefore, 
employee contributions (including both employee contributions allocated 
to separate accounts and employee contributions not allocated to 
separate accounts), and benefits derived from such contributions, are 
not taken into account in determining employee benefit percentages.
    (3) Plans and plan years taken into account--(i) Testing group. All 
plans included in the testing group under Sec. 1.410(b)-7(e)(1), and 
only those plans, are taken into account in determining an employee's 
employee benefit percentage.
    (ii) Testing period. An employee's employee benefit percentage is 
determined on the basis of plan years ending with or within the same 
calendar year. These plan years are referred to in this section as the 
relevant plan years or, in the aggregate, as the testing period.
    (4) Contributions or benefits basis. Employee benefit percentages 
may be determined on either a contributions or a benefits basis. 
Employee benefit percentages for any testing period must be determined 
on the same basis (contributions or benefits) for all plans in the 
testing group.
    (5) Determination of employee benefit percentage--(i) General rule. 
The employee benefit percentage for an employee for a testing period is 
the rate that would be determined for that employee for purposes of 
applying the general test for nondiscrimination in Secs. 1.401(a)(4)-2, 
1.401(a)(4)-3, 1.401(a)(4)-8 or 1.401(a)(4)-9, if all the plans in the 
testing group were aggregated for purposes of section 410(b). Thus, if 
employee benefit percentages are determined on a contributions basis, 
each employee's employee benefit percentage is the aggregate normal 
allocation rate that would be determined for the

[[Page 469]]

employee under Sec. 1.401(a)(4)-9(b)(2)(ii)(A) (if the plans in the 
testing group include both defined benefit and defined contribution 
plans), the allocation rate that would be determined for the employee 
under Sec. 1.401(a)(4)-2(c)(2) (if the plans in the testing group 
include only defined contribution plans), or the equivalent normal 
allocation rate that would be determined for the employee under 
Sec. 1.401(a)(4)-8(c)(2) (if the plans in the testing group include only 
defined benefit plans). Similarly, if employee benefit percentages are 
determined on a benefits basis, each employee's employee benefit 
percentage is the aggregate normal accrual rate that would be determined 
for the employee under Sec. 1.401(a)(4)-9(b)(2)(ii)(B), the normal 
accrual rate that would be determined for the employee under 
Sec. 1.401(a)(4)-3(d), or the equivalent accrual rate that would be 
determined for the employee under Sec. 1.401(a)(4)-8(b)(2), depending on 
whether the plans in the testing group include both defined benefit and 
defined contribution plans, only defined benefit plans, or only defined 
contribution plans.
    (ii) Plans with differing plan years. If not all the plans in the 
testing group share the same plan year, Sec. 1.410(b)-7(d)(5) would 
ordinarily prohibit them from being aggregated for purposes of section 
410(b). In such a case, employee benefit percentages are determined by 
applying the rules of paragraph (d)(5)(i) of this section separately to 
each subset of plans in the testing group that share the same plan year 
(or the same accrual computation period) and aggregating the results for 
all plans in the testing group. Thus, an employee's employee benefit 
percentage is determined as the sum of these separate employee benefit 
percentages that are determined consistently for all the plans in the 
testing group (except for differences attributable solely to the 
differences in plan years).
    (iii) Options and consistency requirements. In determining employee 
benefit percentages under this paragraph (d)(5), any optional or 
alternative methods or rules available for determining rates in 
Secs. 1.401(a)(4)-2, 1.401(a)(4)-3, 1.401(a)(4)-8, or 1.401(a)(4)-9, 
whichever is applicable, may be applied. Thus, for example, employee 
benefit percentages may generally be calculated using any of the 
alternative methods of determining average annual compensation or plan 
year compensation under Sec. 1.401(a)(4)-12, and using any underlying 
definition of compensation that satisfies section 414(s). Except as 
otherwise specifically permitted, the determination of employee benefit 
percentages must be made on a consistent basis for all employees and for 
all plans in the testing group as required by Secs. 1.401(a)(4)-
2(c)(2)(vi), 1.401(a)(4)-3(d)(2)(i), 1.401(a)(4)-8(b)(2)(iv), 
1.401(a)(4)-8(c)(2)(iv) or 1.401(a)(4)-9(b)(2)(iv).
    (6) Permitted disparity--(i) In general. Permitted disparity may be 
imputed in determining employee benefit percentages as provided in 
Secs. 1.401(a)(4)-2, 1.401(a)(4)-3, 1.401(a)(4)-8, or 1.401(a)(4)-9, 
whichever is applicable. When separate employee benefit percentages are 
determined for individual plans under paragraph (e)(2) of this section 
(or for subsets of plans that have the same plan year as described in 
paragraph (d)(5)(ii) of this section), permitted disparity may be 
imputed for an employee only in one individual plan (or subset of plans) 
and may not be imputed for the same employee in another individual plan 
(or subset of plans). However, if the same average annual compensation 
or plan year compensation is used to determine employee benefit 
percentages in more than one plan, the employee's employee benefit 
percentages for those plans may be summed prior to imputing permitted 
disparity.
    (ii) Plans which may not use permitted disparity. Permitted 
disparity may be reflected in the determination of rates only to the 
extent that the plans for which rates are being determined are plans for 
which the permitted disparity of section 401(l) is available. Thus, for 
example, if a section 401(k) plan is included in the testing group and 
permitted disparity is imputed under Sec. 1.401(a)(4)-2(c)(iv), then 
employee benefit percentages are determined by first calculating an 
adjusted allocation rate (within the meaning of Sec. 1.401(a)(4)-
7(b)(1)) without regard to the amount of allocations under the section 
401(k) plan and adding to it the allocation rate for the section 401(k) 
plan. See Sec. 1.401(l)-1(a)(4) for a list of

[[Page 470]]

types of plans for which permitted disparity is not available.
    (7) Requirements for certain plans providing early retirement 
benefits--(i) General rule. If any defined benefit plan in the testing 
group provides for early retirement benefits in addition to normal 
retirement benefits to any highly compensated employee, and the average 
actuarial reduction for any one of these benefits commencing in the five 
years prior to the plan's normal retirement age is less than four 
percent per year, then the aggregate most valuable allocation rate, 
equivalent most valuable allocation rate, aggregate most valuable 
accrual rate, or most valuable accrual rate must be substituted for the 
related normal rates in paragraph (d)(5) of this section.
    (ii) Exception. Paragraph (d)(7)(i) of this section does not apply 
if early retirement benefits with average actuarial reductions described 
in that paragraph are currently available, within the meaning of 
Sec. 1.401(a)(4)-4(b), under plans in the testing group to a percentage 
of nonhighly compensated employees that is at least 70 percent of the 
percentage of highly compensated employees to whom these benefits are 
currently available.
    (e) Additional optional rules--(1) Overview. This paragraph (e) 
contains various alternative methods for determining employee benefit 
percentages for a testing period.
    (2) Determination of employee benefit percentages as the sum of 
separately determined rates--(i) In general. Employee benefit 
percentages may be determined as the sum of separately determined 
employee benefit percentages for each of the plans in the testing group 
that are aggregated under paragraphs (d)(5) (i) or (ii) of this section, 
provided that these employee benefit percentages are determined on a 
consistent basis for all of these plans pursuant to paragraph 
(d)(5)(iii) of this section.
    (ii) Exception from consistency requirement. The consistency 
requirement of paragraph (e)(2)(i) of this section is not violated 
merely because employee benefit percentages are not determined in a 
consistent manner for all of the plans in the testing group and the 
inconsistencies in determination of rates among plans are described in 
paragraph (e)(2)(iii) of this section. The exception in this paragraph 
(e)(2)(ii) applies only if it is reasonable to believe that the 
inconsistencies do not result in an average benefit percentage that is 
significantly higher than the average benefit percentage that would be 
determined had employee benefit percentages been determined on a 
consistent basis pursuant to paragraph (d)(5)(iii) of this section.
    (iii) Permitted inconsistencies. The following inconsistencies 
between plans are permitted under this paragraph (e)(2)--
    (A) Use of different underlying definitions of section 414(s) 
compensation in the determination of rates;
    (B) Use of different definitions of average annual compensation;
    (C) Use of different testing ages;
    (D) Use of different fresh-start dates;
    (E) Use of different actuarial assumptions for normalization; or
    (F) Disregard of actuarial increases after normal retirement age and 
QPSA charges without regard to any requirement for uniformity in the 
actuarial increases or QPSA charges.
    (3) Determination of employee benefit percentages without regard to 
plans of another type--(i) General rule. Employee benefit percentages 
may be determined under plans of one type (i.e., defined benefit plans 
or defined contribution plans) by treating all plans of the other type 
(i.e., defined contribution plans or defined benefit plans, 
respectively) as if they were not part of the testing group, using the 
method provided in this paragraph (e)(3). If this method is used to 
determine whether a defined contribution plan satisfies the average 
benefit percentage test, employee benefit percentages under all defined 
contribution plans in the testing group must be determined on a 
contributions basis, and benefits under any defined benefit plans may 
not be included in the employee benefit percentage. Similarly, if this 
method is used to determine whether a defined benefit plan satisfies the 
average benefit percentage test, employee benefit percentages under all 
defined benefit plans in the testing group must be determined on a 
benefits basis, and allocations under any defined contribution plans may 
not

[[Page 471]]

be included in the employee benefit percentage.
    (ii) Restriction on use of separate testing group determination 
method. A plan does not satisfy the average benefit percentage test 
using the method provided in this paragraph (e)(3) unless each of the 
plans in the testing group of the other type (i.e., defined benefit plan 
or defined contribution plan) than the plan being tested satisfies the 
average benefit test of Sec. 1.410(b)-2(b)(3) using the method in this 
paragraph (e)(3) or satisfies the ratio percentage test of 
Sec. 1.410(b)-2(b)(2).
    (iii) Treatment of permitted disparity. Although under the general 
rule of this paragraph (e)(3) plans of another type are disregarded in 
determining employee benefit percentages, the permitted disparity used 
by those plans (including any permitted disparity that is used by those 
plans to satisfy Sec. 1.401(a)(4)-1(b)(2)) is nonetheless taken into 
account in determining the extent to which permitted disparity may be 
used in determining employee benefit percentages.
    (iv) Example. The following example illustrates the rules of this 
paragraph (e)(3):


    Example. Employer A maintains two defined benefit plans, neither of 
which covers a group of employees that satisfies the ratio percentage 
test of Sec. 1.410(b)-2(b)(2), and a profit-sharing plan and a section 
401(k) plan, each of which benefits a group of employees that satisfies 
the ratio percentage test of Sec. 1.410(b)-2(b)(2). The defined benefit 
plans will satisfy the average benefit percentage test if the actual 
benefit percentage of all nonexcludable nonhighly compensated employees, 
computed on a benefits basis without regard to contributions under the 
profit-sharing plan or the section 401(k) plan, is at least 70 percent 
of the actual benefit percentage of all nonexcludable highly compensated 
employees, computed on a benefits basis without regard to contributions 
under the profit-sharing plan or the section 401(k) plan.


    (4) Simplified method for determining employee benefit percentages 
for certain defined benefit plans--(i) In general. An employee's 
employee benefit percentage with respect to a plan may be determined 
under the simplified method of paragraph (e)(4)(ii) of this section, 
provided the following conditions are satisfied:
    (A) The only plans included in the testing group are defined benefit 
plans, and employee benefit percentages under these plans are determined 
on a benefits basis.
    (B) Employee benefit percentages under the plans in the testing 
group are not required to be determined by taking into account early 
retirement benefits under paragraph (d)(7) of this section.
    (C) The plan is a safe harbor defined benefit plan described in 
Sec. 1.401(a)(4)-3(b).
    (ii) Simplified method--(A) Section 401(l) plans. Under the 
simplified method of this paragraph (e)(4)(ii), an employee's employee 
benefit percentage with respect to a section 401(l) plan described in 
Sec. 1.401(a)(4)-3(b)(3) (i.e., a unit credit plan) may be deemed equal 
to the employee's excess benefit percentage or gross benefit percentage 
(as defined in Sec. 1.401(l)-1(c) (14) or (18), respectively), whichever 
is applicable under the plan's benefit formula in the plan year. In the 
case of a section 401(l) plan described in Sec. 1.401(a)(4)-3(b)(4) 
(i.e., a fractional accrual plan), an employee's employee benefit 
percentage with respect to that plan may be deemed equal to the rate at 
which the excess or gross benefit, whichever is applicable, accrues for 
the employee in the plan year, taking into account the plan's benefit 
formula and the employee's projected service at normal retirement age. 
The use of this simplified method will be treated as an imputation of 
permitted disparity. See paragraph (d)(6) of this section for a 
restriction on multiple use of permitted disparity.
    (B) Other plans. Under the simplified method of this paragraph 
(e)(4)(ii), an employee's employee benefit percentage with respect to a 
plan described in Sec. 1.401(a)(4)-3(b)(3) that is not a section 401(l) 
plan and that is not imputing permitted disparity may be deemed equal to 
the employee's benefit rate in the plan year under the plan's benefit 
formula. In the case of a plan described in Sec. 1.401(a)(4)-3(b)(4) 
that is not a section 401(l) plan and that is not imputing permitted 
disparity, an employee's employee benefit percentage with respect to 
that plan may be deemed equal to the rate at which the benefit accrues

[[Page 472]]

for the employee in the plan year, taking into account the plan's 
benefit formula and an employee's projected service at normal retirement 
age.
    (5) Three-year averaging period. An employee's employee benefit 
percentage may be determined for a testing period as the average of the 
employee's employee benefit percentages determined separately for the 
testing period and for the immediately preceding one or two testing 
periods (referred to in this section as an averaging period). Employee 
benefit percentages of a particular employee that are averaged together 
within an averaging period must be determined on a consistent basis for 
all testing periods within the averaging period.
    (6) Alternative methods of determining compensation. Employee 
benefit percentages may be determined on the basis of any definition of 
compensation that satisfies Sec. 1.414(s)-1(d) (without regard to 
whether the definition satisfies Sec. 1.414(s)-1(d)(3)), provided that 
the same definition is used for all employees and it is reasonable to 
believe that the definition does not result in an average benefit 
percentage that is significantly higher than the average benefit 
percentage that would be determined had employee benefit percentages 
been determined using a definition of compensation that also satisfies 
Sec. 1.414(s)-1(d)(3).
    (f) Special rule for certain collectively bargained plans. A plan 
(as determined without regard to the mandatory disaggregation rule of 
Sec. 1.410(b)-7(c)(5)) that benefits both collectively bargained 
employees and noncollectively bargained employees is deemed to satisfy 
the average benefit percentage test of this section if--
    (1) The provisions of the plan applicable to each employee in the 
plan are identical to the provisions of the plan applicable to every 
other employee in the plan, including the plan benefit or allocation 
formula, any optional forms of benefit, any ancillary benefit, and any 
other right or feature under the plan, and
    (2) The plan would satisfy the ratio percentage test of 
Sec. 1.410(b)-2(b)(2), if Secs. 1.410(b)-6(d) and 1.410(b)-7(c)(5) (the 
excludable employee and mandatory disaggregation rules for collectively 
bargained and noncollectively bargained employees) did not apply.

[T.D. 8363, 56 FR 47646, Sept. 19, 1991; 57 FR 10817, 10954, Mar. 31, 
1992, as amended by T.D. 8487, 58 FR 46840, Sept. 3, 1993]



Sec. 1.410(b)-6  Excludable employees.

    (a) Employees--(1) In general. For purposes of applying section 
410(b) with respect to employees, all employees of the employer, other 
than the excludable employees described in paragraphs (b) through (i) of 
this section, are taken into account. Excludable employees are not taken 
into account with respect to a plan even if they are benefiting under 
the plan, except as otherwise provided in paragraph (b) of this section.
    (2) Rules of application. Except as specifically provided otherwise, 
excludable employees are determined separately with respect to each plan 
for purposes of testing that plan under section 410(b). Thus, in 
determining whether a particular plan satisfies the ratio percentage 
test of Sec. 1.410(b)-2(b)(2), paragraphs (b) through (i) of this 
section are applied solely with reference to that plan. Similarly, in 
determining whether two or more plans that are permissively aggregated 
and treated as a single plan under Sec. 1.410(b)-7(d) satisfy the ratio 
percentage test of Sec. 1.410(b)-2(b)(2), paragraphs (b) through (i) of 
this section are applied solely with reference to the deemed single 
plan. In determining whether a plan satisfies the average benefit 
percentage test of Sec. 1.410(b)-5, the rules of this section are 
applied by treating all plans in the testing group as a single plan.
    (b) Minimum age and service exclusions--(1) In general. If a plan 
applies minimum age and service eligibility conditions permissible under 
section 410(a)(1) and excludes all employees who do not meet those 
conditions from benefiting under the plan, then all employees who fail 
to satisfy those conditions are excludable employees with respect to 
that plan. An employee is treated as meeting the age and service 
requirements on the date that any employee with the same age and service 
(including service permitted to be taken into account for purposes of 
nondiscrimination testing under Sec. 1.401(a)(4)-11(d)(3)) would be 
eligible to

[[Page 473]]

commence participation in the plan, as provided in section 410(b)(4)(C).
    (2) Multiple age and service conditions. If a plan, including a plan 
for which an employer chooses the treatment under paragraph (b)(3) of 
this section, has two or more different sets of minimum age and service 
eligibility conditions, those employees who fail to satisfy all of the 
different sets of age and service conditions are excludable employees 
with respect to the plan. Except as provided in paragraph (b)(3) of this 
section, an employee who satisfies any one of the different sets of 
conditions is not an excludable employee with respect to the plan. 
Differences in the manner in which service is credited (e.g., hours of 
service calculated in accordance with 29 CFR 2530.200b-2 for hourly 
employees and elapsed time calculated in accordance with Sec. 1.410(a)-7 
for salaried employees) for purposes of applying a service condition are 
not taken into account in determining whether multiple age and service 
eligibility conditions exist.
    (3) Plans benefiting certain otherwise excludable employees--(i) In 
general. An employer may treat a plan benefiting otherwise excludable 
employees as two separate plans, one for the otherwise excludable 
employees and one for the other employees benefiting under the plan. See 
Sec. 1.410(b)-7(c)(3) regarding permissive disaggregation of plans 
benefiting otherwise excludable employees. The effect of this rule is 
that employees who would be excludable under paragraph (b)(1) of this 
section (applied without regard to section 410(a)(1)(B)) but for the 
fact that the plan does not apply the greatest permissible minimum age 
and service conditions may be treated as excludable employees with 
respect to the plan. This treatment is available only if the plan 
satisfies section 410(b) and Sec. 1.410(b)-2 with respect to these 
otherwise excludable employees in the manner described in paragraph 
(b)(3)(ii) of this section.
    (ii) Testing portion of plan benefiting otherwise excludable 
employees. In determining whether the plan that benefits employees who 
would otherwise be excludable under paragraph (b)(1) of this section 
(applied without regard to section 410(a)(1)(B)) satisfies section 
410(b) and Sec. 1.410(b)-2, employees who have satisfied the greatest 
permissible minimum age and service conditions with respect to the plan 
are excludable employees. In addition, if the plan being tested applies 
minimum age and service conditions and those conditions are less than 
the maximum permissible minimum age and service conditions, employees 
who have not satisfied the lower minimum age and service conditions 
actually provided for in the plan are excludable employees. Thus, for 
example, if the plan requires attainment of age 18 and 3 months of 
service, employees who have not attained age 18 or 3 months of service 
with the employer are excludable employees.
    (4) Examples. The following examples illustrate the minimum age and 
service condition rules of this paragraph (b). In each example, the 
employer is not treated as operating qualified separate lines of 
business under section 414(r).

    Example 1. An employer maintains Plan A for hourly employees and 
Plan B for salaried employees. Plan A has no minimum age or service 
condition. Plan B has no minimum age condition and requires 1 year of 
service. The employer treats Plans A and B as a single plan for purposes 
of section 410(b). Because Plan A imposes no minimum age or service 
condition, all employees of the employer automatically satisfy the 
minimum age and service conditions of Plan A. Therefore, no employees 
are excludable under this paragraph (b) in testing Plans A and B for 
purposes of section 410(b).
    Example 2. An employer maintains three plans. Plan C benefits 
employees in Division C who satisfy the plan's minimum age and service 
condition of age 21 and 1 year of service. Plan D benefits employees in 
Division D who satisfy the plan's minimum age and service condition of 
age 18 and 1 year of service. Plan E benefits employees in Division E 
who satisfy the plan's minimum age and service condition of age 21 and 6 
months of service. The employer treats Plans D and E as a single plan 
for purposes of section 410(b). In testing Plan C under the ratio 
percentage test or the nondiscriminatory classification test of section 
410(b), employees who are not at least age 21 or who do not have at 
least 1 year of service are excludable employees under paragraph (b)(1) 
of this section. In testing Plans D and E, employees who do not satisfy 
the age and service requirements of either of the two plans are 
excludable employees under paragraph (b)(2) of this section. Thus, an 
employee is excludable with respect to Plans D and E only if the 
employee is not at least age 18 with at least 1 year of service or is 
not at least age 21 with

[[Page 474]]

at least 6 months of service. Thus, an employee who is 19 years old and 
has 11 months of service is excludable. Similarly, an employee who is 17 
years old and has performed 2 years of service is also excludable.
    Example 3. An employer maintains three plans. Plan F benefits all 
employees in Division F (the plan does not apply any minimum age or 
service condition). Plan G benefits employees in Division G who satisfy 
the plan's minimum age and service condition of age 18 and 1 year of 
service. Plan H benefits employees in Division H who satisfy the plan's 
minimum age and service condition of age 21 and 6 months of service. In 
testing the employer's plans under the average benefit percentage test 
provided in Sec. 1.410(b)-5, Plans F, G, and H are treated as a single 
plan and, as such, use the lowest minimum age and service condition 
under the rule of paragraph (b)(2) of this section. Therefore, because 
Plan F does not apply any minimum age or service condition, no employee 
is excludable under this paragraph (b).
    Example 4. An employer maintains Plan J, which does not apply any 
minimum age or service conditions. Plan J benefits all employees in 
Division 1 but does not benefit employees in Division 2. Although Plan J 
has no minimum age or service condition, the employer wants to exclude 
employees whose age and service is below the permissible minimums 
provided in section 410(b)(1)(A). The employer has 110 employees who 
either do not have 1 year of service or are not at least age 21. Of 
these 110 employees, 10 are highly compensated employees and 100 are 
nonhighly compensated employees. Five of these highly compensated 
employees, or 50 percent, work in Division 1 and thus benefit under Plan 
J. Thirty-five of these nonhighly compensated employees, or 35 percent, 
work in Division 1 and thus benefit under Plan J. Plan J satisfies the 
ratio percentage test of section 410(b) with respect to employees who do 
not satisfy the greatest permissible minimum age and service requirement 
because the ratio percentage of that group of employees is 70 percent. 
Thus, in determining whether or not Plan J satisfies section 410(b), the 
110 employees may be treated as excludable employees in accordance with 
paragraph (b)(3)(i) of this section.

    (c) Certain nonresident aliens--(1) General rule. An employee who is 
a nonresident alien (within the meaning of section 7701(b)(1)(B)) and 
who receives no earned income (within the meaning of section 911(d)(2)) 
from the employer that constitutes income from sources within the United 
States (within the meaning of section 861(a)(3)) is treated as an 
excludable employee.
    (2) Special treaty rule. In addition, an employee who is a 
nonresident alien (within the meaning of section 7701(b)(1)(B)) and who 
does receive earned income (within the meaning of section 911(d)(2)) 
from the employer that constitutes income from sources within the United 
States (within the meaning of section 861(a)(3)) is permitted to be 
excluded, if all of the employee's earned income from the employer from 
sources within the United States is exempt from United States income tax 
under an applicable income tax convention. This paragraph (c)(2) applies 
only if all employees described in the preceding sentence are so 
excluded.
    (d) Collectively bargained employees--(1) General rule. A 
collectively bargained employee is an excludable employee with respect 
to a plan that benefits solely noncollectively bargained employees. If a 
plan (within the meaning of Sec. 1.410(b)-7(b)) benefits both 
collectively bargained employees and noncollectively bargained employees 
for a plan year, Sec. 1.410(b)-7(c)(4) provides that the portion of the 
plan that benefits the collectively bargained employees is treated as a 
separate plan from the portion of the plan that benefits the 
noncollectively bargained employees. Thus, a collectively bargained 
employee is always an excludable employee with respect to the 
mandatorily disaggregated portion of any plan that benefits 
noncollectively bargained employees.
    (2) Definition of collectively bargained employee--(i) In general. A 
collectively bargained employee is an employee who is included in a unit 
of employees covered by an agreement that the Secretary of Labor finds 
to be a collective bargaining agreement between employee representatives 
and one or more employers, provided that there is evidence that 
retirement benefits were the subject of good faith bargaining between 
employee representatives and the employer or employers. An employee is a 
collectively bargained employee regardless of whether the employee 
benefits under any plan of the employer. See section 7701(a)(46) and 
Sec. 301.7701-17T of this chapter for additional requirements applicable 
to the collective bargaining agreement. An

[[Page 475]]

employee who performs hours of service during the plan year as both a 
collectively bargained employee and a noncollectively bargained employee 
is treated as a collectively bargained employee with respect to the 
hours of service performed as a collectively bargained employee and a 
noncollectively bargained employee with respect to the hours of service 
performed as a noncollectively bargained employee. See Sec. 1.410(b)-
7(c) for disaggregation rules for plans benefiting collectively 
bargained and noncollectively bargained employees.
    (ii) Special rules for certain employees in multiemployer plans--(A) 
In general. For purposes of this paragraph (d), in testing the 
disaggregated portion of a multiemployer plan benefiting noncollectively 
bargained employees, a noncollectively bargained employee who benefits 
under the plan may be treated as a collectively bargained employee with 
respect to all of the employee's hours of service under the rules of 
paragraphs (d)(2)(ii) (B) through (E) of this section, if the employee 
is or was a member of a unit of employees covered by a collective 
bargaining agreement and that agreement or a successor agreement 
provides for the employee to benefit under the plan in the current plan 
year. For this purpose, provisions of a participation agreement or 
similar document are taken into account in determining whether a 
collective bargaining agreement provides for an employee to benefit 
under a multiemployer plan.
    (B) Employees who were collectively bargained employees during a 
portion of the current plan year. An employee described in paragraph 
(d)(2)(ii)(A) of this section who performs services for one or more 
employers that are parties to the collective bargaining agreement, for 
the plan, or for the employee representative both as a collectively 
bargained employee and as a noncollectively bargained employee during a 
plan year may be treated as a collectively bargained employee for the 
plan year, provided that at least half of the employee's hours of 
service during the plan year are performed as a collectively bargained 
employee.
    (C) Employees who were collectively bargained employees during the 
collective bargaining agreement. An employee described in paragraph 
(d)(2)(ii)(A) of this section who was a collectively bargained employee 
with respect to all of the employee's hours of service during a plan 
year (including employees who are treated as collectively bargained 
employees with respect to all of their hours of service during a plan 
year under paragraph (d)(2)(ii) (B) or (E) of this section) may be 
treated as a collectively bargained employee with respect to all of the 
employee's hours of service for the duration of the collective 
bargaining agreement applicable for such plan year or, if later, until 
the end of the following plan year. For this purpose, a collective 
bargaining agreement is applicable for a plan year if it provided for 
the employee to benefit in the plan and was effective for any portion of 
that plan year. This paragraph (d)(2)(ii)(C) does not apply unless the 
terms of the plan providing for benefit accruals treat the employee in a 
manner that is generally no more favorable than similarly-situated 
employees who are collectively bargained employees.
    (D) Employees who previously were collectively bargained employees. 
An employee who was treated as a collectively bargained employee 
pursuant to paragraph (d)(2)(ii)(C) of this section may be treated as a 
collectively bargained employee with respect to all of the employee's 
hours of service after the end of the period described in paragraph 
(d)(2)(ii)(C) of this section, provided that the employee is performing 
services for one or more employers that are parties to the collective 
bargaining agreement, for the plan, or for the employee representative. 
This paragraph (d)(2)(ii)(D) does not apply unless the terms of the plan 
providing for benefit accruals treat the employee in a manner that is 
generally no more favorable than similarly-situated employees who are 
collectively bargained employees, and no more than five percent of the 
employees covered under the multiemployer plan are noncollectively 
bargained employees (determined without regard to this paragraph 
(d)(2)(ii)(D)). In determining whether more than five percent of the 
employees covered under the multiemployer plan are noncollectively 
bargained employees, those employees

[[Page 476]]

who are described in paragraphs (d)(2)(ii) (B) and (C) of this section 
are treated as collectively bargained employees.
    (E) Transition rule. For a plan year beginning before the applicable 
effective date of these regulations as set forth in Sec. 1.410(b)-10 (b) 
or (d), any employee described in paragraph (d)(2)(ii)(A) of this 
section may be treated as a collectively bargained employee with respect 
to all of the employee's hours of service for that plan year.
    (F) Consistency requirement. The rules in paragraphs (d)(2) (i) and 
(ii) of this section must be applied to all employees on a reasonable 
and consistent basis for the plan year.
    (iii) Covered by a collective bargaining agreement--(A) General 
rule. For purposes of paragraph (d)(2)(i) of this section, an employee 
is included in a unit of employees covered by a collective bargaining 
agreement if and only if the employee is represented by a bona fide 
employee representative that is a party to the collective bargaining 
agreement under which the plan is maintained. Thus, for example, an 
employee of either a plan or the employee representative that is a party 
to the collective bargaining agreement under which the plan is 
maintained is not included in a unit of employees covered by the 
collective bargaining agreement under which the plan is maintained 
merely because the employee is covered under the plan pursuant to an 
agreement entered into by the plan or employee representative on behalf 
of the employee (other than in the capacity of an employee 
representative with respect to the employee). This is the case even if 
all of such employees benefiting under the plan constitute only a de 
minimis percentage of the total employees benefiting under the plan.
    (B) Plans covering professional employees--(1) In general. An 
employee is not considered included in a unit of employees covered by a 
collective bargaining agreement for a plan year for purposes of 
paragraph (d)(2)(iii)(A) of this section if, for the plan year, more 
than 2 percent of the employees who are covered pursuant to the 
agreement are professionals. This rule applies to all employees under 
the agreement, nonprofessionals as well as professionals. Thus, no 
employees covered by such an agreement are excludable employees with 
respect to employees who are not covered by a collective bargaining 
agreement.
    (2) Multiple collective bargaining agreements. This paragraph 
(d)(2)(iii)(B) is applied separately with respect to each collective 
bargaining agreement. Thus, for example, if a plan benefits two groups 
of employees, one included in a unit of employees covered by collective 
bargaining agreement X, more than 2 percent of whom are professionals, 
and another included in a unit of employees covered by collective 
bargaining agreement Y, none of whom are professionals, the group 
covered by agreement X is not considered covered by a collective 
bargaining agreement and the group covered by agreement Y is considered 
covered by a collective bargaining agreement.
    (3) Application of minimum coverage tests. If a plan covers more 
than 2 percent professional employees, no employees in the plan are 
treated as covered by a collective bargaining agreement. A plan that 
covers more than 2 percent professional employees must satisfy section 
410(b) without regard to section 413(b) and the special rule in 
Sec. 1.410(b)-2(b)(7) of this section (regarding collectively bargained 
plans). In such cases, all nonexcludable employees must be taken into 
account. For this purpose, employees included in other collective 
bargaining units are excludable employees. However, the employees who 
are not covered by a collective bargaining agreement and the employees 
who are covered by an agreement that has more than 2 percent 
professionals are not excludable employees.
    (iv) Examples. The following examples illustrate the collective 
bargaining unit rules of this section.

    Example 1. An employer has 700 collectively bargained employees 
(none of whom is a professional employee) and 300 noncollectively 
bargained employees (200 of whom are highly compensated employees). For 
purposes of applying the ratio percentage test of Sec. 1.410(b)-2(b)(2) 
to Plan X, which benefits only the 300 noncollectively bargained 
employees, the 700 collectively bargained employees are treated as 
excludable employees pursuant to paragraph (d) of this section.

[[Page 477]]

    Example 2. (i) An employer has 1,500 employees in the following 
categories:

------------------------------------------------------------------------
                                  Noncollectively  Collectively         
                                     bargained       bargained    Total 
                                     employees       employees          
------------------------------------------------------------------------
Highly compensated employees....            100             100      200
Nonhighly compensated employees.            900             400    1,300
                                 ---------------------------------------
      Total.....................          1,000             500    1,500
------------------------------------------------------------------------

    The employer maintains Plan Y, which benefits 1,100 employees, 
including all of the noncollectively bargained employees (except for 100 
nonhighly compensated employees who are noncollectively bargained 
employees), and 200 of the collectively bargained employees (including 
the 100 highly compensated employees who are collectively bargained 
employees). There are no professional employees covered by the 
collective bargaining agreement. In accordance with Sec. 1.410(b)-
7(c)(4), the employer must apply the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) to Plan Y as if the plan were two separate plans, 
one benefiting the noncollectively bargained employees and the other 
benefiting the collectively bargained employees.
    (ii) In testing the portion of Plan Y that benefits the 
noncollectively bargained employees, the collectively bargained 
employees are excludable employees. That portion's ratio percentage is 
88.89 percent ([800/900] /[100/100] = 88.89%/100% =0.8889), and thus it 
satisfies the ratio percentage test. The portion of Plan Y that benefits 
collectively bargained employees automatically satisfies section 410(b) 
under the special rule in Sec. 1.410(b)-2(b)(7).

    (e) Employees of qualified separate lines of business. If an 
employer is treated as operating qualified separate lines of business 
for purposes of section 410(b) in accordance with Sec. 1.414(r)-1 (b), 
in testing a plan that benefits employees of one qualified separate line 
of business, the employees of the other qualified separate lines of 
business of the employer are treated as excludable employees. The rule 
in this paragraph (e) does not apply for purposes of satisfying the 
nondiscriminatory classification requirement of section 410(b)(5)(B). 
See Secs. 1.414(r)-1(c)(2) and 1.414(r)-8 (separate application of 
section 410(b) to the employees of a qualified separate line of 
business). In addition, the rule in this paragraph (e) does not apply to 
a plan that is tested under the special rule for employer-wide plans in 
Sec. 1.414(r)-1(c) (2) (ii) for a plan year.
    (f) Certain terminating employees--(1) In general. An employee may 
be treated as an excludable employee for a plan year with respect to a 
particular plan if--
    (i) The employee does not benefit under the plan for the plan year,
    (ii) The employee is eligible to participate in the plan,
    (iii) The plan has a minimum period of service requirement or a 
requirement that an employee be employed on the last day of the plan 
year (last-day requirement) in order for an employee to accrue a benefit 
or receive an allocation for the plan year,
    (iv) The employee fails to accrue a benefit or receive an allocation 
under the plan solely because of the failure to satisfy the minimum 
period of service or last-day requirement,
    (v) The employee terminates employment during the plan year with no 
more than 500 hours of service, and the employee is not an employee as 
of the last day of the plan year (for purposes of this paragraph 
(f)(1)(v), a plan that uses the elapsed time method of determining years 
of service may use either 91 consecutive calendar days or 3 consecutive 
calendar months instead of 500 hours of service, provided it uses the 
same convention for all employees during a plan year), and
    (vi) If this paragraph (f) is applied with respect to any employee 
with respect to a plan for a plan year, it is applied with respect to 
all employees with respect to the plan for the plan year.
    (2) Hours of service. For purposes of this paragraph (f), the term 
``hours of service'' has the same meaning as provided for such term by 
29 CFR 2530.200b-2 under the general method of crediting service for the 
employee. If one of the equivalencies set forth in 29 CFR 2530.200b-3 is 
used for crediting service under the plan, the 500-hour requirement must 
be adjusted accordingly.
    (3) Examples. The following examples illustrate the provision of 
this paragraph (f).

    Example 1. An employer has 35 employees who are eligible to 
participate under a defined contribution plan. The plan provides

[[Page 478]]

that an employee will not receive an allocation of contributions for a 
plan year unless the employee is employed by the employer on the last 
day of the plan year. Only 30 employees are employed by the employer on 
the last day of the plan year. Two of the five employees who terminated 
employment before the last day of the plan year had 500 or fewer hours 
of service during the plan year, and the remaining three had more than 
500 hours of service during the year. Of the five employees who were no 
longer employed on the last day of the plan year, the two with 500 hours 
of service or less during the plan year are treated as excludable 
employees for purposes of section 410(b), and the remaining three who 
had over 500 hours of service during the plan year are taken into 
account in testing the plan under section 410(b) but are treated as not 
benefiting under the plan.
    Example 2. An employer has 30 employees who are eligible to 
participate under a defined contribution plan. The plan requires 1,000 
hours of service to receive an allocation of contributions or 
forfeitures. Ten employees do not receive an allocation because of their 
failure to complete 1,000 hours of service. Three of the 10 employees 
who failed to satisfy the minimum service requirement completed 500 or 
fewer hours of service and terminated their employment. Two of the 
employees completed more than 500, but fewer than 1,000 hours of service 
and terminated their employment. The remaining five employees did not 
terminate employment. Under the rule in paragraph (f) of this section, 
the three terminated employees who completed 500 or fewer hours of 
service are treated as excludable employees for the portion of the plan 
year they are employed. The other seven employees who do not receive an 
allocation are taken into account in testing the plan under section 
410(b) but are treated as not benefiting under the plan.
    Example 3. An employer maintains two plans, Plan A for salaried 
employees and Plan B for hourly employees. Of the 100 salaried 
employees, two do not receive an allocation under Plan A for the plan 
year because they terminate employment before completing 500 hours of 
service. Of the 300 hourly employees, 50 do not receive an allocation 
under Plan B for the plan year because they terminate employment before 
completing 500 hours. In applying section 410(b) to Plan A, the two 
employees who did not receive an allocation under Plan A are excludable 
employees, but the 50 who did not receive an allocation under Plan B are 
not excludable employees, because they were not eligible to participate 
under Plan A.

    (g) Employees of certain governmental or tax-exempt entities 
precluded from maintaining a section 401(k) plan. For purposes of 
testing either a section 401(k) plan or a section 401(m) plan that is 
provided under the same general arrangement as a section 401(k) plan, an 
employer may treat as excludable those employees of governmental or tax-
exempt entities who are precluded from being eligible employees under a 
section 401(k) plan by reason of section 401(k)(4)(B), if more than 95 
percent of the employees of the employer who are not precluded from 
being eligible employees by section 401(k)(4)(B) benefit under the plan 
for the plan year.
    (h) Former employees--(1) In general. For purposes of applying 
section 410(b) with respect to former employees, all former employees of 
the employer are taken into account, except that the employer may treat 
a former employee described in paragraph (h)(2) or (h)(3) of this 
section as an excludable former employee. If either (or both) of the 
former employee exclusion rules under paragraphs (h)(2) and (h)(3) of 
this section is applied, it must be applied to all former employees for 
the plan year on a consistent basis.
    (2) Employees terminated before a specified date. The employer may 
treat a former employee as excludable if--
    (i) The former employee became a former employee either prior to 
January 1, 1984, or prior to the tenth calendar year preceding the 
calendar year in which the current plan year begins, and
    (ii) The former employee became a former employee in a calendar year 
that precedes the earliest calendar year in which any former employee 
who benefits under the plan in the current plan year became a former 
employee.
    (3) Previously excludable employees. The employer may treat a former 
employee as excludable if the former employee was an excludable employee 
(or would have been an excludable employee if these regulations had been 
in effect) under the rules of paragraphs (b) through (g) of this section 
during the plan year in which the former employee became a former 
employee. If the employer treats a former employee as excludable 
pursuant to this paragraph (h)(3), the former employee is not taken into 
account with respect to a plan even if the former employee is benefiting 
under the plan.

[[Page 479]]

    (i) Former employees treated as employees. An employer may treat as 
excludable employees all formerly nonhighly compensated employees who 
are treated as employees of the employer under Sec. 1.410(b)-9 solely 
because they have increases in accrued benefits under a defined benefit 
plan that are based on ongoing service or compensation credits 
(including imputed service or compensation) after they cease to perform 
services for the employer.

[T.D. 8363, 56 FR 47652, Sept. 19, 1991, as amended by T.D. 8376, 56 FR 
63433, Dec. 4, 1991; T.D. 8363, 57 FR 10817, Mar. 31, 1992; T.D. 8487, 
58 FR 46842, Sept. 3, 1993; T.D. 8487, 59 FR 16984, Apr. 11, 1994; T.D. 
8548, 59 FR 32914, June 27, 1994]



Sec. 1.410(b)-7  Definition of plan and rules governing plan disaggregation and aggregation.

    (a) In general. This section provides a definition of ``plan.'' 
First, this section sets forth a definition of plan within the meaning 
of section 401(a) or 403(a). Then certain mandatory disaggregation and 
permissive aggregation rules are applied. The result is the definition 
of plan that applies for purposes of sections 410(b) and 401(a)(4). 
Thus, in general, the term ``plan'' as used in this section initially 
refers to a plan described in section 414(l) and to an annuity plan 
described in section 403(a), and the term ``plan'' as used in other 
sections under these regulations means the plan determined after 
application of this section. Paragraph (b) of this section provides that 
each single plan under section 414(l) is treated as a single plan for 
purposes of section 410(b). Paragraph (c) of this section describes the 
rules for certain plans that must be treated as comprising two or more 
separate plans, each of which is a single plan subject to section 
410(b). Paragraph (d) of this section provides a rule permitting an 
employer to aggregate certain separate plans to form a single plan for 
purposes of section 410(b). Paragraph (e) of this section provides rules 
for determining the testing group of plans taken into account in 
determining whether a plan satisfies the average benefit percentage test 
of Sec. 1.410(b)-5.
    (b) Separate asset pools are separate plans. Each single plan within 
the meaning of section 414(l) is a separate plan for purposes of section 
410(b). See Sec. 1.414(l)-1(b). For example, if only a portion of the 
assets under a defined benefit plan is available, on an ongoing basis, 
to provide the benefits of certain employees, and the remaining assets 
are available only in certain limited cases to provide such benefits 
(but are available in all cases for the benefit of other employees), 
there are two separate plans. Similarly, the defined contribution 
portion of a plan described in section 414(k) is a separate plan from 
the defined benefit portion of that same plan. A single plan under 
section 414(l) is a single plan for purposes of section 410(b), even 
though the plan comprises separate written documents and separate 
trusts, each of which receives a separate determination letter from the 
Internal Revenue Service. A defined contribution plan does not comprise 
separate plans merely because it includes more than one trust, or merely 
because it provides for separate accounts and permits employees to 
direct the investment of the amounts allocated to their accounts. 
Further, a plan does not comprise separate plans merely because assets 
are separately invested in individual insurance or annuity contracts for 
employees.
    (c) Mandatory disaggregation of certain plans--(1) Section 401(k) 
and 401(m) plans. The portion of a plan that is a section 401(k) plan 
and the portion that is not a section 401(k) plan are treated as 
separate plans for purposes of section 410(b). Similarly, the portion of 
a plan that is a section 401(m) plan and the portion that is not a 
section 401(m) plan are treated as separate plans for purposes of 
section 410(b). Thus, a plan that consists of elective contributions 
under a section 401(k) plan, employee and matching contributions under a 
section 401(m) plan, and contributions other than elective, employee, or 
matching contributions is treated as three separate plans for purposes 
of section 410(b). In addition, the portion of a plan that consists of 
contributions described in Sec. 1.401(k)-1(b)(4)(iv) (i.e., 
contributions that fail to satisfy the allocation or compensation 
requirements applicable to elective contributions and are therefore 
required to be

[[Page 480]]

tested separately) and the portion of the plan that does not consist of 
such contributions are treated as separate plans for purposes of section 
410(b). Similarly, the portion of a plan that consists of contributions 
described in Sec. 1.410(m)-1(b)(4)(ii) (i.e., matching contributions 
that fail to satisfy the allocation and other requirements applicable to 
matching contributions and are therefore required to be tested 
separately) and the portion of the plan that does not consist of such 
contributions are treated as separate plans for purposes of section 
410(b).
    (2) ESOPs and non-ESOPs. The portion of a plan that is an ESOP and 
the portion of the plan that is not an ESOP are treated as separate 
plans for purposes of section 410(b), except as otherwise permitted 
under Sec. 54.4975-11(e) of this Chapter.
    (3) Plans benefiting otherwise excludable employees. If an employer 
applies section 410(b) separately to the portion of a plan that benefits 
only employees who satisfy age and service conditions under the plan 
that are lower than the greatest minimum age and service conditions 
permissible under section 410(a), the plan is treated as comprising 
separate plans, one benefiting the employees who have satisfied the 
lower minimum age and service conditions but not the greatest minimum 
age and service conditions permitted under section 410(a) and one 
benefiting employees who have satisfied the greatest minimum age and 
service conditions permitted under section 410(a). See Sec. 410(b)-
6(b)(3)(ii) for rules about testing otherwise excludable employees.
    (4) Plans benefiting certain disaggregation populations of 
employees--(i) In general--(A) Single plan must be treated as separate 
plans. If a plan (i.e., a single plan within the meaning of section 
414(l)) benefits employees of more than one disaggregation population, 
the plan must be disaggregated and treated as separate plans, each 
separate plan consisting of the portion of the plan benefiting the 
employees of each disaggregation population. See paragraph (c)(4)(ii) of 
this section for the definition of disaggregation population.
    (B) Benefit accruals or allocations attributable to current status. 
Except as otherwise provided in paragraph (c)(4)(i)(C) of this section, 
in applying the rule of paragraph (c)(4)(i)(A) of this section, the 
portion of the plan benefiting employees of a disaggregation population 
consists of all benefits accrued by, or all allocations made to, 
employees while they were members of the disaggregation population.
    (C) Exceptions for certain benefit accruals--(1) Attribution of 
benefits to first disaggregation population. If employees benefiting 
under a plan change from one disaggregation population to a second 
disaggregation population, benefits they accrue while members of the 
second disaggregation population that are attributable to years of 
service previously credited while the employees were members of the 
first disaggregation population may be treated as provided to them in 
their status as members of the first disaggregation population and thus 
included in the portion of the plan benefiting employees of the first 
disaggregation population. This special treatment is available only if 
it is applied on a consistent basis, if it does not result in 
significant discrimination in favor of highly compensated employees, and 
if the plan provision providing the additional benefits applies on the 
same terms to all similarly-situated employees. For example, if all 
formerly collectively bargained employees accrue additional benefits 
under a plan after becoming noncollectively bargained employees, then 
those benefit increases may be treated as included in the portion of the 
plan benefiting collectively bargained employees if they are 
attributable to years of service credited while the employees were 
collectively bargained (e.g., where the additional benefits result from 
compensation increases that occur while the employees are 
noncollectively bargained or from plan amendments affecting benefits 
earned while collectively bargained that are adopted while the employees 
are noncollectively bargained) and if such treatment does not result in 
significant discrimination in favor of highly compensated employees.
    (2) Attribution of benefits to current disaggregation population. If 
employees benefiting under a plan change from

[[Page 481]]

one disaggregation population to another disaggregation population, 
benefits they accrue while members of the first disaggregation 
population may be treated as provided to them in their current status 
and thus included in the portion of the plan benefiting employees of the 
disaggregation population of which they are currently members. This 
special treatment is available only if it is applied on a consistent 
basis and if it does not result in significant discrimination in favor 
of highly compensated employees.
    (D) Change in disaggregation populations--(1) Reasonable treatment. 
If, in previous years, the configuration of a plan's disaggregation 
populations differed from their configuration for the current year, for 
purposes of the benefits accrued by, or allocations made to, an employee 
for those years, the employee's status as a member of a current 
disaggregation population for those years must be determined on a 
reasonable basis. A different configuration occurs, for example, if 
disaggregation populations exist for the first time, such as when an 
employer is first treated as operating qualified separate lines of 
business, or if the existing disaggregation populations change, such as 
when an employer redesignates its qualified separate lines of business.
    (2) Example. The following example illustrates the application of 
this paragraph (c)(4)(i)(D).

    Example. (a) Employer X operates Divisions M and N, which are 
treated as qualified separate lines of business for the first time in 
1998. Thus, the disaggregation populations of employees of Division M 
and employees of Division N exist for the first time. Since 1981 
Employer X has maintained a defined benefit plan, Plan P, for employees 
of Division M. Plan P provides a normal retirement benefit of one 
percent of average annual compensation for each year of service up to 
25. Employee A has worked for Division M since 1981 and has never worked 
for Division N. Employee B has worked for Division N since 1989 and 
worked for Division M from 1981 to 1988. Employee C has worked in the 
headquarters of Employer X since 1981. For the period 1981 to 1988 
Employee C was credited with years of service under Plan P.
    (b) For purposes of the benefits accrued by Employee A under Plan P 
during years 1981 through 1997, Employee A is reasonably treated as 
having been a member of the Division M disaggregation population for 
those years. For purposes of the benefits accrued by Employee B under 
Plan P during years 1981 through 1988, Employee B is reasonably treated 
as having been a member of the Division M disaggregation population for 
1981 through 1988 and as having changed to the Division N disaggregation 
population for 1989 through 1997. For purposes of the benefits accrued 
by Employee C under Plan P during years 1981 through 1988, Employee C is 
reasonably treated as having been a member of the Division M 
disaggregation population for those years. Moreover, any benefit 
accruals for Employee B and Employee C in years after 1988, that result 
from increases in average annual compensation after 1988 and that are 
attributable to years of service credited for 1981 through 1988, may be 
treated as provided to Employee B and Employee C in their status as 
members of the Division M disaggregation population if the requirements 
of paragraph (c)(4)(i)(C)(1) of this section are otherwise met.

    (ii) Definition of disaggregation population--(A) Plan benefiting 
employees of qualified separate lines of business. If an employer is 
treated as operating qualified separate lines of business for purposes 
of section 410(b) in accordance with Sec. 1.414(r)-1(b), and a plan 
benefits employees of more than one qualified separate line of business, 
the employees of each qualified separate line of business are separate 
disaggregation populations. In this case, the portion of the plan 
benefiting the employees of each qualified separate line of business is 
treated as a separate plan maintained by that qualified separate line of 
business. However, employees of different qualified separate lines of 
business who are benefiting under a plan that is tested under the 
special rule for employer-wide plans in Sec. 1.414(r)-1(c)(2)(ii) for a 
plan year are not separate disaggregation populations merely because 
they are employees of different qualified separate lines of business.
    (B) Plan benefiting collectively bargained employees. If a plan 
benefits both collectively bargained employees and noncollectively 
bargained employees, the collectively bargained employees are one 
disaggregation population and the noncollectively bargained employees 
are another disaggregation population. If the population of collectively 
bargained employees includes employees covered under different 
collective bargaining agreements, the population

[[Page 482]]

of employees covered under each collective bargaining agreement is also 
a separate disaggregation population.
    (C) Plan maintained by more than one employer. If a plan benefits 
employees of more than one employer, the employees of each employer are 
separate disaggregation populations. In this case, the portion of the 
plan benefiting the employees of each employer is treated as a separate 
plan maintained by that employer, which must satisfy section 410(b) by 
reference only to that employer's employees. However, for purposes of 
this paragraph (c)(4)(ii)(C), if the plan of one employer (or, in the 
case of a plan maintained by more than one employer, the plan provisions 
applicable to the employees of one employer) treats compensation or 
service with another employer as compensation or service with the first 
employer, then the current accruals attributable to that compensation or 
service are treated as provided to an employee of the first employer 
under the plan of the first employer (or the portion of a plan 
maintained by more than one employer benefiting employees of the first 
employer), and the provisions of paragraph (c)(4)(i)(C) of this section 
do not apply to those accruals. Thus, for example, if Plan A maintained 
by Employer X imputes service or compensation for an employee of 
Employer Y, then Plan A is not treated as benefiting the employees of 
more than one employer merely because of this imputation.
    (5) Additional rule for plans benefiting employees of more than one 
qualified separate line of business. If a plan benefiting employees of 
more than one qualified separate line of business satisfies the 
reasonable classification requirement of Sec. 1.410(b)-4(b) before the 
application of paragraph (c)(4) of this section, then any portion of the 
plan that is treated as a separate plan as a result of the application 
of paragraphs (c)(4)(i)(A) and (ii)(A) of this section is deemed to 
satisfy that requirement.
    (d) Permissive aggregation for ratio percentage and 
nondiscriminatory classification tests--(1) In general. Except as 
provided in paragraphs (d)(2) and (d)(3) of this section, for purposes 
of applying the ratio percentage test of Sec. 1.410(b)-2(b)(2) or the 
nondiscriminatory classification test of Sec. 1.410(b)-4, an employer 
may designate two or more separate plans (determined after application 
of paragraph (b) of this section) as a single plan. If an employer 
treats two or more separate plans as a single plan under this paragraph, 
the plans must be treated as a single plan for all purposes under 
sections 401(a)(4) and 410(b).
    (2) Rules of disaggregation. An employer may not aggregate portions 
of a plan that are disaggregated under the rules of paragraph (c) of 
this section. Similarly, an employer may not aggregate two or more 
separate plans that would be disaggregated under the rules of paragraph 
(c) of this section if they were portions of the same plan. In addition, 
an employer may not aggregate an ESOP with another ESOP, except as 
permitted under Sec. 54.4975-11(e) of this Chapter.
    (3) Duplicative aggregation. A plan may not be combined with two or 
more plans to form more than one single plan. Thus, for example, an 
employer that maintains plans A, B, and C may not aggregate plans A and 
B and plans A and C to form two single plans. However, the employer may 
apply the permissive aggregation rules of this paragraph (d) to form any 
one (and only one) of the following combinations: plan ABC, plans AB and 
C, plans AC and B, or plans A and BC.
    (4) Special rule for plans benefiting employees of a qualified 
separate line of business. For purposes of paragraph (d)(1) of this 
section, an employer that is treated as operating qualified separate 
lines of business for purposes of section 410(b) in accordance with 
Sec. 1.414(r)-1(b) is permitted to aggregate the portions of two or more 
plans that benefit employees of the same qualified separate line of 
business (regardless of whether the employer elects to aggregate the 
portions of the same plans that benefit employees of the other qualified 
separate lines of business of the employer), provided that none of the 
plans is tested under the special rule for employer-wide plans in 
Sec. 1.414(r)-1 (c)(2)(ii). Thus, the employer is permitted to apply 
paragraph (d)(1) of this section with respect to two or more separate 
plans determined after the application of paragraphs (b) and

[[Page 483]]

(c)(4) of this section, but may not aggregate a plan that is tested 
under the special rule for employer-wide plans in Sec. 1.414(r)-
1(c)(2)(ii) for a plan year with any portion of a plan that does not 
rely on that special rule for the plan year. In all other respects, the 
provisions of this paragraph (d) regarding permissive aggregation apply, 
including (but not limited to) the disaggregation rules under paragraph 
(d)(2) of this section (including the mandatory disaggregation rule of 
paragraph (c)(4) of this section), and the prohibition on duplicative 
aggregation under paragraph (d)(3) of this section. This paragraph 
(d)(4) applies only in the case of an employer that is treated as 
operating qualified separate lines of business for purposes of section 
410(b) in accordance with Sec. 1.414(r)-1(b). See Secs. l.414(r)-1(c)(2) 
and 1.414(r)-8 (separate application of section 410(b) to the employees 
of a qualified separate line of business).
    (5) Same plan year requirement. Two or more plans may not be 
aggregated and treated as a single plan under this paragraph (d) unless 
they have the same plan year.
    (e) Determination of plans in testing group for average benefit 
percentage test--(1) In general. For purposes of applying the average 
benefit percentage test of Sec. 1.410(b)-5 with respect to a plan, all 
plans in the testing group must be taken into account. For this purpose, 
the plans in the testing group are the plan being tested and all other 
plans of the employer that could be permissively aggregated with that 
plan under paragraph (d) of this section. Whether two or more plans 
could be permissively aggregated under paragraph (d) of this section is 
determined (i) without regard to the rule in paragraph (d)(4) of this 
section that portions of two or more plans benefiting employees of the 
same line of business may not be aggregated if any of the plans is 
tested under the special rule for employer-wide plans in Sec. 1.414(r)-
1(c)(2)(ii), (ii) without regard to paragraph (d)(5) of this section, 
and (iii) by applying paragraph (d)(2) of this section without regard to 
paragraphs (c)(1) and (c)(2) of this section.
    (2) Examples. The following example illustrates the rules of this 
paragraph (e).

    Example 1. Employer X is treated as operating two qualified separate 
lines of business for purposes of section 410(b) in accordance with 
section 414(r), QSLOB1 and QSLOB2. Employer X must apply the rules in 
Sec. 1.414(r)-8 to determine whether its plans satisfy section 410(b) on 
a qualified-separate-line-of-business basis. Employer X maintains the 
following plans:
    (a) Plan A, the portion of Employer X' s employer-wide section 
401(k) plan that benefits all noncollectively bargained employees of 
QSLOB1,
    (b) Plan B, the portion of Employer X' s employer-wide section 
401(k) plan that benefits all noncollectively bargained employees of 
QSLOB2,
    (c) Plan C, a defined benefit plan that benefits all hourly 
noncollectively bargained employees of QSLOB1,
    (d) Plan D, a defined benefit plan that benefits all collectively 
bargained employees of QSLOB1,
    (e) Plan E, an ESOP that benefits all noncollectively bargained 
employees of QSLOB1,
    (f) Plan F, a profit-sharing plan that benefits all salaried 
noncollectively bargained employees of QSLOB1.
Assume that Plan F does not satisfy the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) on a qualified-separate-line-of-business basis, 
but does satisfy the nondiscriminatory classification test of 
Sec. 1.410(b)-4 on both an employer-wide and a qualified-separate-line-
of-business basis. Therefore, to satisfy section 410(b), Plan F must 
satisfy the average benefit percentage test of Sec. 1.410(b)-5 on a 
qualifiedseparatelineofbu5ine55 basis. The plans in the testing group 
used to determine whether Plan F satisfies the average benefit 
percentage test of Sec. 1.4 10(b)-5 are Plans A, C, E, and F.
    Example 2. The facts are the same as in Example 1, except that 
Employer X applies the special rule for employer-wide plans in 
Sec. 1.414(r)-1(c)(2)(ii) to its employer-wide section 401(k) plan. To 
satisfy section 410(b), Plan F must satisfy the average benefit 
percentage test of Sec. 1.4 10(b)-5. Since paragraph (c)(4) of this 
section no longer applies to Plans A and B, they are treated as a single 
plan (Plan AB). The plans in the testing group used to determine whether 
Plan F satisfies the average benefit percentage test of Sec. 1.4 10(b)-5 
are therefore Plans A, B, C, E, and F. However, the employees of QSLOB 2 
continue to be excludable employees for purposes of determining whether 
Plan F satisfies the average benefit percentage test. See Sec. 1.410(b)-
6(e).

    (f) Section 403(b) plans. In determining whether a plan satisfies 
section 410(b), a plan subject to section 403(b)(12)(A)(i) is 
disregarded. However, in determining whether a plan subject to section 
403(b)(12)(A)(i) satisfied section 410(b),

[[Page 484]]

plans that are not subject to section 403(b)(12)(A)(i) may be taken into 
account.

[T.D. 8363, 56 FR 47655, Sept. 19, 1991, as amended by T.D. 8376, 56 FR 
63433, Dec. 4, 1991; T.D. 8363, 57 FR 10819, 10954, Mar. 31, 1992; T.D. 
8487, 58 FR 46843, Sept. 3, 1993; T.D. 8548, 59 FR 32914, June 27, 1994]



Sec. 1.410(b)-8  Additional rules.

    (a) Testing methods--(1) In general. A plan must satisfy section 
410(b) for a plan year using one of the testing options in paragraphs 
(a)(2) through (a)(4) of this section. Whichever testing option is used 
for the plan year must also be used for purposes of applying section 
401(a)(4) to the plan for the plan year. The annual testing option in 
paragraph (a)(4) of this section must be used in applying section 410(b) 
to a section 401(k) plan or a section 401(m) plan, and in applying the 
average benefit percentage test of Sec. 1.410(b)-5. For purposes of this 
paragraph (a), the plan provisions and other relevant facts as of the 
last day of the plan year regarding which employees benefit under the 
plan for the plan year are applied to the employees taken into account 
under the testing option used for the plan year. For this purpose, 
amendments retroactively correcting a plan in accordance with 
Sec. 1.401(a)(4)-11(g) are taken into account as plan provisions in 
effect as of the last day of the plan year.
    (2) Daily testing option. A plan satisfies section 410(b) for a plan 
year if it satisfies Sec. 1.410(b)-2 on each day of the plan year, 
taking into account only those employees (or former employees) who are 
employees (or former employees) on that day.
    (3) Quarterly testing option. A plan is deemed to satisfy section 
410(b) for a plan year if the plan satisfies Sec. 1.410(b)-2 on at least 
one day in each quarter of the plan year, taking into account for each 
of those days only those employees (or former employees) who are 
employees (or former employees) on that day. The preceding sentence does 
not apply if the plan's eligibility rules or benefit formula operate to 
cause the four quarterly testing days selected by the employer not to be 
reasonably representative of the coverage of the plan over the entire 
plan year.
    (4) Annual testing option. A plan satisfies section 410(b) for a 
plan year if it satisfies Sec. 1.410(b)-2 as of the last day of the plan 
year, taking into account all employees (or former employees) who were 
employees (or former employees) on any day during the plan year.
    (5) Example. The following example illustrates this paragraph (a).

    Example. Plan A is a defined contribution plan that is not a section 
401(k) plan or a section 401(m) plan, and that conditions allocations on 
an employee's employment on the last day of the plan year. Plan A is 
being tested for the 1995 calendar plan year using the daily testing 
option in paragraph (a)(2) of this section. In testing the plan for 
compliance with section 410(b) on March 11, 1995, Employee X is taken 
into account because he was an employee on that day and was not an 
excludable employee with respect to Plan A on that day. Employee X was a 
participant in Plan A on March 11, 1995, was employed on December 31, 
1995, and received an allocation under Plan A for the 1995 plan year. 
Under these facts, Employee X is treated as benefiting under Plan A on 
March 11, 1995, even though Employee X had not satisfied all of the 
conditions for receiving an allocation on that day, because Employee X 
satisfied all of those conditions as of the last day of the plan year.

    (b) Family member aggregation rule. For purposes of section 410(b), 
and in accordance with section 414(q)(6), a highly compensated employee 
who is a 5-percent owner or one of the ten most highly compensated 
employees and any family member (or members) of such a highly 
compensated employee who is also an employee of the employer are to be 
treated as a single highly compensated employee. If any member of that 
group is benefiting under a plan, the deemed single employee is treated 
as benefiting under the plan. If no member of that group is benefiting 
under a plan, the deemed single employee is treated as not benefiting 
under the plan.

[T.D. 8363, 56 FR 47656, Sept. 19, 1991]



Sec. 1.410(b)-9  Definitions.

    In applying this section and Secs. 1.410(b)-2 through 1.410(b)-10, 
the definitions in this section govern unless otherwise provided.
    Collectively bargained employee. Collectively bargained employee 
means a collectively bargained employee within the meaning of 
Sec. 1.410(b)-6(d)(2).

[[Page 485]]

    Defined benefit plan. Defined benefit plan means a defined benefit 
plan within the meaning of section 414(j). The portion of a plan 
described in section 414(k) that does not consist of separate accounts 
is treated as a defined benefit plan.
    Defined contribution plan. Defined contribution plan means a defined 
contribution plan within the meaning of section 414(i). The portion of a 
plan described in section 414(k) that consists of separate accounts is 
treated as a defined contribution plan.
    Employee. Employee means an individual who performs services for the 
employer who is either a common law employee of the employer, a self-
employed individual who is treated as an employee pursuant to section 
401(c)(1), or a leased employee (not excluded under section 414(n)(5)) 
who is treated as an employee of the employer-recipient under section 
414(n)(2) or 414(o)(2). Individuals that an employer treats as employees 
under section 414(n) pursuant to the requirements of section 414(o) are 
considered to be leased employees for purposes of this rule. In 
addition, an individual must be treated as an employee with respect to 
allocations under a defined contribution plan taken into account under 
Sec. 1.401(a)(4)-2(c)(ii) and with respect to increases in accrued 
benefits (within the meaning of 411(a)(7)) under a defined benefit plan 
that are based on ongoing service or compensation (including imputed 
service or compensation) credits.
    Employer. Employer means the employer maintaining the plan and those 
employers required to be aggregated with the employer under sections 
414(b), (c), (m), or (o). An individual who owns the entire interest of 
an unincorporated trade or business is treated as an employer. Also, a 
partnership is treated as the employer of each partner and each employee 
of the partnership.
    ESOP. ESOP or employee stock ownership plan means an employee stock 
ownership plan within the meaning of section 4975(e)(7) or a tax credit 
employee stock ownership plan within the meaning of section 409(a).
    Former employee. Former employee means an individual who was, but 
has ceased to be, an employee of the employer (i.e., the individual has 
ceased performing services as an employee for the employer). An 
individual is treated as a former employee beginning on the day after 
the day on which the individual ceases performing services as an 
employee for the employer. Thus, an individual who ceases performing 
services as an employee for an employer during a plan year is both an 
employee and a former employee for the plan year. Notwithstanding the 
foregoing, an individual is an employee (and not a former employee) to 
the extent that the individual is treated as an employee with respect to 
the plan for the plan year under the definition of employee in this 
section.
    Highly compensated employee. Highly compensated employee means an 
employee who is a highly compensated employee within the meaning of 
section 414(q) or a former employee treated as an employee under the 
definition of employee in this section who is a highly compensated 
former employee within the meaning of section 414(q).
    Highly compensated former employee. Highly compensated former 
employee means a former employee who is a highly compensated former 
employee within the meaning of section 414(q).
    Multiemployer plan. Multiemployer plan means a multiemployer plan 
within the meaning of section 414(f).
    Noncollectively bargained employee. Noncollectively bargained 
employee means an employee who is not a collectively bargained employee.
    Nonhighly compensated employee. Nonhighly compensated employee means 
an employee who is not a highly compensated employee.
    Nonhighly compensated former employee. Nonhighly compensated former 
employee means a former employee who is not a highly compensated former 
employee.
    Plan year. Plan year means the plan year of the plan as defined in 
the written plan document. In the absence of a specifically designated 
plan year, the plan year is deemed to be the calendar year.
    Plan year compensation. Plan year compensation means plan year 
compensation within the meaning of Sec. 1.401(a)(4)-12.

[[Page 486]]

    Professional employee. Professional employee means any highly 
compensated employee who, on any day of the plan year, performs 
professional services for the employer as an actuary, architect, 
attorney, chiropodist, chiropractor, dentist, executive, investment 
banker, medical doctor, optometrist, osteopath, podiatrist, 
psychologist, certified or other public accountant, stockbroker, or 
veterinarian, or in any other professional capacity determined by the 
Commissioner in a notice or other document of general applicability to 
constitute the performance of services as a professional.
    Ratio percentage. With respect to a plan for a plan year, a plan's 
ratio percentage means the percentage (rounded to the nearest hundredth 
of a percentage point) determined by dividing the percentage of the 
nonhighly compensated employees who benefit under the plan by the 
percentage of the highly compensated employees who benefit under the 
plan. The percentage of the nonhighly compensated employees who benefit 
under the plan is determined by dividing the number of nonhighly 
compensated employees benefiting under the plan by the total number of 
nonhighly compensated employees of the employer. The percentage of the 
highly compensated employees who benefit under the plan is determined by 
dividing the number of highly compensated employees benefiting under the 
plan by the total number of highly compensated employees of the 
employer.
    Section 401(k) plan. Section 401(k) plan means a plan consisting of 
elective contributions described in Sec. 1.40(k)-1(g)(3) under a 
qualified cash or deferred arrangement described in Sec. 1.401(k)-
1(a)(4)(i). Thus, a section 401(k) plan does not include a plan (or 
portion of a plan) that consists of contributions under a nonqualified 
cash or deferred arrangement, or qualified nonelective or qualified 
matching contributions treated as elective contributions under 
Sec. 1.401(k)-1(b)(5).
    Section 401(l) plan. Section 401(l) plan means a plan that--
    (1) Provides for a disparity in employer-provided benefits or 
contributions that satisfies section 401(l) in form, and
    (2) Relies on one of the safe harbors of Sec. 1.401(a)(4)-2(b)(2), 
1.401(a)(4)-3(b), 1.401(a)(4)-8(b)(3), or 1.401(a)(4)-8(c)(3)(iii)(B) to 
satisfy section 401(a)(4).
    Section 401(m) plan. Section 401(m) plan means a plan consisting of 
employee contributions described in Sec. 1.401(m)-1(f)(6) or matching 
contributions described in Sec. 1.40(m)-1(f)(12), or both. Thus, a 
section 401(m) plan does not include a plan (or portion of a plan) that 
consists of elective contributions or qualified nonelective 
contributions treated as matching contributions under Sec. 1.401(m)-
1(b)(5).

[T.D. 8363, 56 FR 47657, Sept. 19, 1991; 57 FR 10817, 10954, Mar. 31, 
1992, as amended by T.D. 8487, 58 FR 46843, Sept. 3, 1993]



Sec. 1.410(b)-10  Effective dates and transition rules.

    (a) Statutory effective dates--(1) In general. Except as set forth 
in paragraph (a)(2) of this section, the minimum coverage rules of 
section 410(b) as amended by section 1112 of the Tax Reform Act of 1986 
apply to plan years beginning on or after January 1, 1989.
    (2) Special statutory effective date for collective bargaining 
agreements--(i) In general. As provided for by section 1112(e)(2) of the 
Tax Reform Act of 1986, in the case of a plan maintained pursuant to one 
or more collective bargaining agreements between employee 
representatives and one or more employers ratified before March 1, 1986, 
the minimum coverage rules of section 410(b) as amended by section 1112 
of the Tax Reform Act of 1986 do not apply to employees covered by any 
such agreement in plan years beginning before the earlier of--
    (A) January 1, 1991; or
    (B) The later of January 1, 1989, or the date on which the last of 
such collective bargaining agreements terminates (determined without 
regard to any extension thereof after February 28, 1986). For purposes 
of this paragraph (a)(2), any extension or renegotiation of a collective 
bargaining agreement, which extension or renegotiation is ratified after 
February 28, 1986, is to be disregarded in determining the date on which 
the agreement terminates.
    (ii) Example. The following example illustrates this paragraph 
(a)(2).


[[Page 487]]


    Example. Employer A maintains Plan 1 pursuant to a collective 
bargaining agreement. Plan 1 covers 100 of Employer A's noncollectively 
bargained employees and 900 of Employer A's collectively bargained 
employees. Employer A also maintains Plan 2, which covers Employer A's 
other 400 noncollectively bargained employees. The collective bargaining 
agreement under which Plan 1 is maintained was entered into on January 
1, 1986, and expires December 31, 1992. Because Plan 1 is a plan 
maintained pursuant to a collective bargaining agreement, section 410(b) 
applies to the first plan year beginning on or after January 1, 1991. In 
applying section 410(b) to Plan 2, the 100 noncollectively bargained 
employees in Plan 1 must be taken into account. The deferred effective 
date for plans maintained pursuant to a collective bargaining agreement 
is not applicable in determining how section 410(b) is applied to a plan 
that is not maintained pursuant to a collective bargaining agreement.

    (iii) Plan maintained pursuant to a collective bargaining agreement. 
For purposes of this paragraph (a)(2), a plan is maintained pursuant to 
one or more collective bargaining agreements between employee 
representatives and one or more employers, if one or more of the 
agreements were ratified before March 1, 1986. Only plans maintained 
pursuant to agreements that the Secretary of Labor finds to be 
collective bargaining agreements and that satisfy section 7701(a)(46) 
are eligible for the deferred effective date under this paragraph 
(a)(2). A plan will not be treated as a plan maintained pursuant to one 
or more collective bargaining agreements eligible for the deferred 
effective date under this paragraph (a)(2) unless the plan would be a 
plan maintained pursuant to one or more collective bargaining agreements 
under the principles applied under section 1017(c) of the Employee 
Retirement Income Security Act of 1974. See H.R. Rep. No. 1280, 93rd 
Cong. 2d Sess. 266 (1974).
    (b) Regulatory effective dates--(1) In general. Except as otherwise 
provided in this section, Secs. 1.410(b)-2 through 1.410(b)-9 apply to 
plan years beginning on or after January 1, 1994.
    (2) Plans of tax-exempt organizations. In the case of plans 
maintained by organizations exempt from income taxation under section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans), Secs. 1.410(b)-2 through 1.410(b)-9 apply to plan years 
beginning on or after January 1, 1996, to the extent such plans are 
subject to section 410(b).
    (c) Compliance during transition period. For plan years beginning 
before the effective date of these regulations, as set forth in 
paragraph (b) of this section, and on or after the statutory effective 
date as set forth in paragraph (a) of this section, a plan must be 
operated in accordance with a reasonable, good faith interpretation of 
section 410(b). Whether a plan is operated in accordance with a 
reasonable, good faith interpretation of section 410(b) will generally 
be determined based on all of the relevant facts and circumstances, 
including the extent to which an employer has resolved unclear issues in 
its favor. If a plan's classification has been determined by the 
Commissioner to be nondiscriminatory and there have been no significant 
changes in or omissions of a material fact, the classification will be 
treated as nondiscriminatory for the relevant plan year. A plan will be 
deemed to be operated in accordance with a reasonable, good faith 
interpretation of section 410(b) if it is operated in accordance with 
the terms of Secs. 1.410(b)-2 through 1.410(b)-9.
    (d) Effective date for governmental plans. In the case of 
governmental plans described in section 414(d), including plans subject 
to section 403(b)(12)(A)(i) (nonelective plans) Sec. 1.410(b)-2 through 
Sec. 1.410(b)-10 apply to plan years beginning on or after January 1, 
1996, or 90 days after the opening of the first legislative session 
beginning on or after January 1, 1996, of the governing body with 
authority to amend the plan, if that body does not meet continuously. 
Such plans are deemed to satisfy section 410(b) (and in the case of such 
plans that are not subject to section 403(b)(12)(A)(i), section 
401(a)(3) as in effect on September 1, 1974) for plan years before that 
effective date. For purposes of this section, the governing body with 
authority to amend the plan is the legislature, board, commission, 
council, or other governing body with authority to amend the plan. See 
Sec. 1.410(b)-2(d) and (e).

[T.D. 8487, 58 FR 46844, Sept. 3, 1993]

[[Page 488]]



Sec. 1.410(d)-1  Election by church to have participation, vesting, funding, etc. provisions apply.

    (a) In general. If a church or convention or association of churches 
which maintains any church plan, as defined in section 414(e), makes an 
election under this section, certain provisions of the Code and Title I 
of the Employee Retirement Income Security Act of 1974 (the ``Act'') 
shall apply to such church plan as if such plan were not a church plan. 
The provisions of the Code referred to are section 410 (relating to 
minimum participation standards), section 411 (relating to minimum 
vesting standards), section 412 (relating to minimum funding standards), 
section 4975 (relating to prohibited transactions), and paragraphs (11), 
(12), (13), (14), (15), and (19) of section 401(a) (relating to joint 
and survivor annuities, mergers and consolidations, assignment or 
alienation of benefits, time of benefit commencement, certain social 
security increases, and withdrawals of employee contributions, 
respectively).
    (b) Election is irrevocable. An election under this section with 
respect to any church plan shall be binding with respect to such plan 
and, once made, shall be irrevocable.
    (c) Procedure for making election--(1) Time of election. An election 
under this section may be made for plan years for which the provisions 
of section 410(d) of the Code apply to the church plan. By reason of 
section 1017(b) of the Act section 410(d) does not apply to a plan in 
existence on January 1, 1974, for plan years beginning before January 1, 
1976. Section 1017(d) of the Act permits a plan administrator to elect 
to have certain provisions of the Code (including section 410(d)) apply 
to a plan before the otherwise applicable effective dates of such 
provisions. See Sec. 1.410(a)-2(d). Therefore, for a plan in existence 
on Janurary 1, 1974, an election under section 410(d) of the Code may be 
made for a plan year beginning before January 1, 1976, only if an 
election has been made under section 1017(d) of the Act with respect to 
that plan year.
    (2) By whom election is to be made. The election provided by this 
section may be made only by the plan administrator of the church plan.
    (3) Manner of making election. The plan administrator may elect to 
have the provisions of the Code described in paragraph (a) of this 
section apply to the church plan as it is were not a church plan by 
attaching the statement described in subparagraph (5) of this paragraph 
to either (i) the annual return required under section 6058(a) (or an 
amended return) with respect to the plan which is filed for the first 
plan year for which the election is effective or (ii) a written request 
for a determination letter relating to the qualification of the plan 
under section 401(a), 403(a), or 405(a) of the Code and if trusteed, the 
exempt status under section 501(a) of the Code of a trust constituting a 
part of the plan.
    (4) Conditional election. If an election is made with a written 
request for a determination letter, the election may be conditioned upon 
issuance of a favorable determination letter and will become irrevocable 
upon issuance of such letter.
    (5) Statement. The statement described in subparagraph (3) of this 
paragraph shall indicate (i) that the election is made under section 
410(d) of the Code and (ii) the first plan year for which it is 
effective.

(Sec. 410 (88 Stat. 898; 26 U.S.C. 410))

[T.D. 7508, 42 FR 47198, Sept. 20, 1977]



Sec. 1.411(a)-1  Minimum vesting standards; general rules.

    (a) In general. A plan is not a qualified plan (and a trust forming 
a part of such plan is not a qualified trust) unless--
    (1) The plan provides that an employee's right to his normal 
retirement benefit (see Sec. 1.411(a)-7(c)) is nonforfeitable (see 
Sec. 1.411(a)-4) upon and after the attainment of normal retirement age 
(see Sec. 1.411(a)-7(b)),
    (2) The plan provides that an employee's rights in his accrued 
benefit derived from his own contributions (see Sec. 1.411(c)-1) are 
nonforfeitable at all times, and
    (3) The plan satisfies the requirements of--
    (A) Section 411(a)(2) and Sec. 1.411(a)-3 (relating to vesting in 
accrued benefit derived from employer contributions), and

[[Page 489]]

    (B) In the case of a defined benefit plan, section 411(b)(1) and 
Sec. 1.411(b)-1 (relating to accrued benefit).
    (b) Organization of regulations relating to minimum vesting 
standards--(1) General rules. This section prescribes general rules 
relating to the minimum vesting standards provided by section 411.
    (2) Effective dates. Section 1.411(a)-2 provides rules under section 
1017 of the Employee Retirement Income Security Act of 1974 relating to 
effective dates under section 411.
    (3) Employer contributions. Section 1.411(a)-3 provides rules under 
section 411(a)(2) relating to vesting in employer-derived accrued 
benefits.
    (4) Certain forfeitures. Section 1.411(a)-4 provides rules under 
section 411(a)(3) relating to certain permitted forfeitures, 
suspensions, etc. under qualified plans.
    (5) Nonforfeitable percentage. Section 1.411(a)-5 provides rules 
under section 411(a)(4) relating to service included in the 
determination of an employee's nonforfeitable percentage under section 
411(a)(2) and Sec. 1.411(a)-3.
    (6) Years of service; break in service. Section 1.411(a)-6 provides 
rules under section 411(a) (5) and (6) of the Internal Revenue Code of 
1954 relating to years of service and breaks in service. Rules 
prescribed by the Secretary of Labor, relating to years of service and 
breaks in service under part 2 of subtitle B of title I of the Employee 
Retirement Income Security Act of 1974 are provided under 29 CFR Part 
2530 (Department of Labor regulations relating to minimum standards for 
employee pension benefit plans).
    (7) Definitions and special rules. Section 1.411(a)-7 provides 
definitions and special rules under section 411(a) (7), (8), and (9), 
for purposes of section 411 and the regulations thereunder.
    (8) Changes in vesting schedule. Section 1.411(a)-8 provides rules 
under section 411(a)(10) relating to changes in the vesting schedule of 
a plan.
    (9) Breaks in service. Section 1.411(a)-9 provides special rules 
relating to breaks in service.
    (10) Accrued benefits. See Sec. 1.411(b)-1 for rules under section 
411(b) relating to accrued benefit requirements under defined benefit 
plans.
    (11) Allocation of accrued benefits. See Sec. 1.411(c)-1 for rules 
under section 411(c) relating to allocation of accrued benefits between 
employer and employee contributions.
    (12) Discrimination, etc. See Sec. 1.411(d)-1 for rules relating to 
the coordination of section 411 with section 401(a)(4) (relating to 
discrimination) and other rules under section 411(d).
    (c) Application of standards to certain plans--(1) General rule. 
Except as provided in subparagraph (2) of this paragraph, section 411 
does not apply to--
    (i) A governmental plan (within the meaning of section 414(d) and 
the regulations thereunder),
    (ii) A church plan (within the meaning of section 414(e) and the 
regulations thereunder) which has not made the election provided by 
section 410(d) and the regulations thereunder,
    (iii) A plan which has not provided for employer contributions at 
any time after September 2, 1974, and
    (iv) A plan established and maintained by a society, order, or 
association described in section 501(c) (8) or (9), if no part of the 
contributions to or under such plan are made by employers of 
participants in such plan.
    (2) Vesting requirements. A plan described in subparagraph (1) of 
this paragraph shall, for purposes of section 401(a), be treated as 
meeting the requirements of section 411 if such plan meets the vesting 
requirements resulting from the application of section 401(a)(4) and 
section 401(a)(7) as in effect on September 1, 1974.
    (d) Supersession. Sections 11.411(a)-1 through 11.411(d)-3, 
inclusive, of the Temporary Income Tax Regulations under the Employee 
Retirement Income Security Act of 1974 are superseded by this section 
and Secs. 1.411(a)-2 through 1.411(d)-3.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42324, Aug. 23, 1977]



Sec. 1.411(a)-2  Effective dates.

    (a) Plan not in existence on January 1, 1974. Under section 1017(a) 
of the Employee Retirement Income Security Act of 1974, in the case of a 
plan which was not in existence on January 1, 1974, section 411 and the 
regulations thereunder apply for plan years beginning after September 2, 
1974. See paragraph

[[Page 490]]

(c) of this section for time plan is considered in existence.
    (b) Plans in existence on January 1, 1974. Under section 1017(b) of 
the Employee Retirement Income Security Act of 1974, in the case of a 
plan which was in existence on January 1, 1974, section 411 and the 
regulations thereunder apply for plan years beginning after December 31, 
1975. See paragraph (c) of this section for time plan is considered to 
be in existence.
    (c) Time of plan existence--(1) General rule. For purposes of this 
section, a plan is considered to be in existence on a particular day 
if--
    (i) The plan on or before that day was reduced to writing and 
adopted by the employer (including, in the case of a corporate employer, 
formal approval by the employer's board of directors and, if required, 
shareholders), even though no amounts had been contributed under the 
plan as of such day, and
    (ii) The plan was not terminated on or before that day.

For example, if a plan was adopted on January 2, 1974, effective as of 
January 1, 1974, the plan is not considered to have been in existence on 
January 1, 1974, because it was not both adopted and in writing on 
January 1, 1974.
    (2) Collectively-bargained plan. Notwithstanding paragraph (c) (1) 
of this section, a plan described in section 413 (a), relating to a plan 
maintained pursuant to a collective-bargaining agreement, is considered 
to be in existence on a particular day if--
    (i) On or before that day there is a legally enforceable agreement 
to establish such a plan signed by the employer, and
    (ii) The employer contributions to be made to the plan are set forth 
in the agreement.
    (3) Special rule. If a plan is considered to be in existence under 
subparagraph (1) of this paragraph, any other plan with which such 
existing plan is merged or consolidated shall also be considered to be 
in existence on such date.
    (d) Existing plans under collective-bargaining agreements. For a 
special effective date rule for certain plans maintained pursuant to a 
collective bargaining agreement, see section 1017(c)(1) of the Employee 
Retirement Income Security Act of 1974 (88 Stat. 932).
    (e) Certain existing plans may elect new provisions. The plan 
administrator may elect to have the provisions of the Code relating to 
participation, vesting, funding, and form of benefit apply to a selected 
plan year. See Sec. 1.410(a)-2(d) for rules relating to such an 
election.
    (f) Application of rules. The requirements of section 411 do not 
apply to employees who separate from service with the employer prior to 
the first plan year to which such requirements apply and who never 
return to service with the employer in a plan year to which section 411 
applies.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42325, Aug. 23, 1977]



Sec. 1.411(a)-3  Vesting in employer-derived benefits.

    (a) In general--(1) Alternative requirements. A plan is not a 
qualified plan (and a trust forming a part of such plan is not a 
qualified trust) unless the plan satisfies the requirements of section 
411(a)(2) and this section. A plan satisfies the requirements of this 
section if is satisfies the requirements of paragraph (b), (c), or (d) 
of this section.
    (2) Composite arrangements. A plan will not be considered to satisfy 
the requirements of paragraph (b), (c), or (d) of this section unless it 
satisfies all requirements of a particular one of such paragraphs with 
respect to all of an employee's years of service. A plan which, for 
example, satisfies the requirements of paragraph (b) (but not (c) or 
(d)) for an employee's first 9 years of service and satisfies the 
requirements of paragraph (c) (but not (b)) for all of his remaining 
years of service, does not satisfy the requirements of this section. A 
plan is not precluded from satisfying the requirement of one such 
paragraph with respect to one group of employees and another such 
paragraph with respect to another group provided that the groups are not 
so structured as to evade the requirements of this paragraph. For 
example, if plan A provides that employees who commence participation 
before age 30 are subject to the ``rule of 45'' vesting schedule and 
employees who commence participation after age 30 are subject to the 
full vesting after 10 years schedule,

[[Page 491]]

plan A would be so structured as to evade the requirements of this 
paragraph.
    (3) Plan amendments. A plan which satisfies the requirements of a 
particular one of such paragraphs for each of an employee's years of 
service and which is amended so that, as amended, it satisfies the 
requirements of another such paragraph for all such years of service, 
satisfies the requirements of this section even though, as amended, it 
does not satisfy the requirements of the paragraph which were satisfied 
prior to the amendment. See Sec. 1.411(a)-8 for rules relating to 
employee election where the vesting schedule is amended.
    (b) 10-year vesting. A plan satisfies the requirements of section 
411(a)(2) (A) and this paragraph if an employee who has completed 10 
years of service has a nonforfeitable right to 100 percent of his 
accrued benefit derived from employer contributions.
    (c) 5- to 15-year vesting. A plan satisfies the requirements of 
section 411(a)(2) (B) and this paragraph if an employee who has 
completed at least 5 years of service has a nonforfeitable right to a 
percentage of his accrued benefit derived from employer contribution 
which percentage is not less than the nonforfeitable percentage 
determined under the following table:


------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
5.......................................................             25 
6.......................................................             30 
7.......................................................             35 
8.......................................................             40 
9.......................................................             45 
10......................................................             50 
11......................................................             60 
12......................................................             70 
13......................................................             80 
14......................................................             90 
15 or more..............................................            100 
------------------------------------------------------------------------

    (d) Rule of 45. A plan satisfies the requirements of section 
411(a)(2)(C) and this paragraph if an employee is entitled to the 
greater of the two percentages determined under paragraph (d) (1) or (2) 
of this section.
    (1) Age and service test. An employee who is not separated from the 
service, who has completed at least 5 years of service, and with respect 
to whom the sum of his age and years of service equals of exceeds 45, 
has a nonforfeit- able right to a percentage of his accrued benefit 
derived from employer contributions which is not less than the 
nonforfeitable percentage corresponding to his number of completed years 
of service to to the sum of his age and completed years of service 
(whichever percentage is the lesser) determined under the following 
table:

------------------------------------------------------------------------
                                       Sum of age and     Nonforfeitable
    Completed years of service             service          percentage  
------------------------------------------------------------------------
5.................................  45 or 46............             50 
6.................................  47 or 48............             60 
7.................................  49 or 50............             70 
8.................................  51 or 52............             80 
9.................................  53 or 54............             90 
10 or more........................  55 or more..........            100 
------------------------------------------------------------------------

    (2) Service test. An employee who has completed at least 10 years of 
service has a nonforfeitable right to a percentage of his accrued 
benefit derived from employer contributions determined under the 
following table:


------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
                                                                        
10......................................................             50 
11......................................................             60 
12......................................................             70 
13......................................................             80 
14......................................................             90 
15......................................................            100 
------------------------------------------------------------------------

    (3) Computation of age. For purposes of subparagraph (1) of this 
paragraph, the age of an employee is his age on his last birthday.
    (e) Examples. The rules provided by this section are illustrated by 
the following examples:

    Example (1). Plan B provides that each employee's rights to his 
employer-derived accrued benefit are nonforfeitable as follows:


------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
                                                                        
2 or less...............................................              0 
3.......................................................             30 
4.......................................................             35 
5.......................................................             40 
6.......................................................             45 
7.......................................................             50 
8.......................................................             55 
9.......................................................             60 
10......................................................             65 
11......................................................             70 
12......................................................             75 
13......................................................             80 
14......................................................             85 

[[Page 492]]

                                                                        
15......................................................            100 
------------------------------------------------------------------------

Plan B does not satisfy the requirements of paragraph (c) of this 
section (relating to 5-15-year vesting) because the nonforfeitable 
percentage provided by the plan after completion of 14 years of service 
(85 percent) is less than the percentage required by paragraph (c) of 
this section at that time (90 percent). The fact that the nonforfeitable 
percentage provided by the plan for years prior to the 13th year of 
service is greater than the percentage required under paragraph (c) of 
this section is immaterial. The plan fails to satisfy the requirements 
of paragraph (c) of this section even if it is demonstrated that the 
value of the vesting provided by the plan to the employee is at least 
equal to the value of the vesting rate required by that paragraph.
    Example (2). Plan C provides for plan participation after the 
completion of 1 year of service. The plan provides that each employee's 
rights to his employer-derived accrued benefit are 100 percent 
nonforfeitable after 10 years of plan participation rather than service. 
The plan does not satisfy the requirements of paragraph (b) of this 
section because, under the plan, an employee obtains a 100 percent 
nonforfeitable right to his employer-derived accrued benefit only after 
completion of more than 10 years of service.
    Example (3). Plan D provides that each employee's rights to his 
employer-derived accrued benefit are nonforfeitable in accordance with 
the following schedule:


------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
                                                                        
0-9.....................................................              0 
10......................................................             50 
11......................................................             60 
12......................................................             70 
13......................................................             80 
14......................................................             90 
15......................................................            100 
------------------------------------------------------------------------

The plan does not satisfy the requirements of paragraph (b) of this 
section after the 9th year of service. It does not satisfy the 
requirements of paragraph (c) of this section for years prior to the 
10th year of service. It does not satisfy the requirements of paragraph 
(d)(1) of this section for any year of service prior to the 10th year. 
The plan does not satisfy the requirements of this section because it 
does not satisfy the requirements of a particular one of the three 
paragraphs for each of an employee's years of service.
    Example (4). Plan G provides that each employee's rights to his 
employer-derived accrued benefit are 100 percent nonforfeitable upon 
completion of 5 years of service. The plan satisfies the requirements of 
paragraphs (b), (c), and (d) of this section and, because it satisfies 
the requirements of at least one of such paragraphs for all of an 
employee's years of service, it satisfies the requirements of this 
section.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42325, Aug. 23, 1977]



Sec. 1.411(a)-3T  Vesting in employer-derived benefits (temporary).

    (a) In general--(1) [Reserved]
    (2) Composite arrangements. A plan will not be considered to satisfy 
the requirements of paragraph (b), (c), or (d) of this section unless it 
satisfies all requirements of a particular one of such paragraphs with 
respect to all of an employee's years of service. A plan which, for 
example, satisfies the requirements of paragraph (b) (but not (c) or 
(d)) for an employee's first 4 years of service and satisfies the 
requirements of paragraph (c) (but not (b)) for all of his remaining 
years of service does not satisfy the requirements of this section. A 
plan is not precluded from satisfying the requirements of one such 
paragraph with respect to one group of employees and another such 
paragraph with respect to another group provided that the groups are not 
so structured as to evade the requirements of this paragraph.
    (b) 5-year vesting.  A plan satisfies the requirements of section 
411(a)(2)(A) and this paragraph if an employee who has completed 5 years 
of service has a nonforfeitable right to 100 percent of his or her 
accrued benefits derived from employer contributions.
    (c) 3- to 7-year vesting. A plan satisfies the requirements of 
section 411(a)(2)(B) and this paragraph if an employee who has completed 
at least 3 years of service has a nonforfeitable right to a percentage 
of his accrued benefit derived from employer contributions, which 
percentage is not less than the nonforfeitable percentage determined 
under the following table:

------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
3.......................................................             20 
4.......................................................             40 
5.......................................................             60 
6.......................................................             80 

[[Page 493]]

                                                                        
7 or more...............................................            100 
------------------------------------------------------------------------

    (d) Multiemployer plans. A plan satisfies the requirements of 
section 411(a)(2)(C) and this paragraph if--
    (1) The plan is a multiemployer plan (within the meaning of section 
414(f)), and
    (2) Under the plan--
    (i) An employee who is covered pursuant to a collective bargaining 
agreement described in section 414(f)(1)(B) has a nonforfeitable right 
to 100 percent of the employee's accrued benefit derived from employer 
contributions not later than upon completion of 10 years of service, and
    (ii) The requirements of paragraph (b) or (c) of this section are 
met with respect to employees who are not covered pursuant to a 
collective bargaining agreement described in section 414(f)(1)(B).
    (iii) For purposes of this provision, an employee is not covered 
pursuant to a collective bargaining agreement unless the employee is 
represented by a bona fide employee representative that is a party to 
the collective bargaining agreement pursuant to which the multiemployer 
plan is maintained. Thus, for example, an employee of either the 
multiemployer plan or the employee representative is not covered 
pursuant to the collective bargaining agreement under which the plan is 
maintained even if the employee is covered pursuant to an agreement 
entered into by the multiemployer plan or employee representative on 
behalf of the employee and even if all such employees covered under the 
plan constitute only a de minimis percentage of the total employees 
covered under the plan.
    (e) Effective date. (1) The provisions of this section apply to all 
employees who have one hour of service in any plan year beginning 
after--
    (i) December 31, 1988, or
    (ii) In the case of a plan maintained pursuant to one or more 
collective bargaining agreements between employee representatives and 
one or more employers ratified before March 1, 1986, for employees 
covered by any such agreement, the earlier of--
    (A) The later of--
    (1) January 1, 1989, or
    (2) The date on which the last of such collective bargaining 
agreements terminates (determined without regard to any extension 
thereof after February 28, 1986), or
    (B) January 1, 1991.
    (2) For employees not described in paragraph (e)(1), above, the 
regulations in effect prior to January 1, 1989, shall be applied to 
determine the requirements of this section.
    (f) Examples. The rules provided by this section are illustrated by 
the following examples:

    Example (1). Plan B provides that each employee's rights to his 
employer-derived accrued benefit are nonforfeitable as follows:

------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
1.......................................................              0 
2.......................................................             10 
3.......................................................             25 
4.......................................................             45 
5.......................................................             65 
6.......................................................             75 
7.......................................................            100 
------------------------------------------------------------------------

    Plan B does not satisfy the requirements of paragraph (c) of this 
section (relating to 3- to 7-year vesting) because the nonforfeitable 
percentage provided by the plan after completion of 6 years of service 
(75 percent) is less than the percentage required by paragraph (c) of 
this section at that time (80 percent). The fact that the nonforfeitable 
percentage provided by the plan for years prior to the 6th year of 
service is greater than the percentage required under paragraph (c) of 
this section is immaterial. The plan fails to satisfy the requirements 
of paragraph (c) of this section even if it is demonstrated that the 
value of the vesting provided by the plan to the employees is at least 
equal to the value of the vesting rate required by this paragraph.
    Example (2). Plan C provides for plan participation after the 
completion of 1 year of service. The plan provides that each employee's 
rights to his employer-derived accrued benefits are 100 percent 
nonforfeitable after 5 years of plan participation rather than service. 
The plan does not satisfy the requirements of paragraph (b) of this 
section because, under the plan, an employee obtains a 100 percent 
nonforfeitable right to his or her employer-derived accrued benefit only 
after completion of more than 5 years of service.
    Example (3). Plan D provides that each employee's rights to his 
employer-derived accrued benefits are nonforfeitable in accordance with 
the following schedule:

[[Page 494]]



------------------------------------------------------------------------
                                                          Nonforfeitable
               Completed years of service                   percentage  
------------------------------------------------------------------------
0 to 4..................................................              0 
5.......................................................             60 
6.......................................................             80 
7.......................................................            100 
------------------------------------------------------------------------

    The plan does not satisfy the requirements of paragraph (b) of this 
section after the 4th year of service. It does not satisfy the 
requirements of paragraph (c) of this section for years prior to the 5th 
year of service. The plan does not satisfy the requirements of this 
section because it does not satisfy the requirements of a particular one 
of the two paragraphs for each of an employee's years of service.
    Example (4). Plan G provides that each employee's rights to his 
employer-derived accrued benefit are 100 percent nonforfeitable upon 
completion of 3 years of service. The plan satisfies the requirements of 
paragraphs (b) and (c) of this section and, because it satisfies the 
requirements of at least one of such paragraphs for all of an employee's 
years of service, it satisfies the requirements of this section.

[T.D. 8170, 53 FR 240, Jan. 6, 1988]



Sec. 1.411(a)-4  Forfeitures, suspensions, etc.

    (a) Nonforfeitability. Certain rights in an accrued benefit must be 
nonforfeitable to satisfy the requirements of section 411(a). This 
section defines the term ``nonforfeitable'' for purposes of these 
requirements. For purposes of section 411 and the regulations 
thereunder, a right to an accrued benefit is considered to be 
nonforfeitable at a particular time if, at that time and thereafter, it 
is an unconditional right. Except as provided by paragraph (b) of this 
section, a right which, at a particular time, is conditioned under the 
plan upon a subsequent event, subsequent performance, or subsequent 
forbearance which will cause the loss of such right is a forfeitable 
right at that time. Certain adjustments to plan benefits such as 
adjustments in excess of reasonable actuarial reductions, can result in 
rights being forfeitable. Rights which are conditioned upon a 
sufficiency of plan assets in the event of a termination or partial 
termination are considered to be forfeitable because of such condition. 
However, a plan does not violate the nonforfeitability requirements 
merely because in the event of a termination an employee does not have 
any recourse toward satisfaction of his nonforfeitable benefits from 
other than the plan assets or the Pension Benefit Guaranty Corporation. 
Furthermore, nonforfeitable rights are not considered to be forfeitable 
by reason of the fact that they may be reduced to take into account 
benefits which are provided under the Social Security Act or under any 
other Federal or State law and which are taken into account in 
determining plan benefits. To the extent that rights are not required to 
be nonforfeitable to satisfy the minimum vesting standards, or the 
nondiscrimination requirements of section 401(a)(4), they may be 
forfeited without regard to the limitations on forfeitability required 
by this section. The right of an employee to repurchase his accrued 
benefit for example under section 411(a)(3)(D), is an example of a right 
which is required to satisfy such standards. Accordingly, such a right 
is subject to the limitations on forfeitability. Rights which are 
required to be prospectively nonforfeitable under the vesting standards 
are nonforfeitable and may not be forfeited until it is determined that 
such rights are, in fact, in excess of the vesting standards. Thus, 
employees have a right to vest in the accrued benefits if they continue 
in employment of employers maintaining the plan unless a forfeitable 
event recognized by section 411 occurs. For example, if a plan covered 
employees in Division A of Corporation X under a plan utilizing a 10-
year 100 percent vesting schedule, the plan could not forfeit employees' 
rights on account of their moving to service in Division B of 
Corporation X prior to completion of 10 years of service even though 
employees are not vested at that time.
    (b) Special rules. For purposes of paragraph (a) of this section a 
right is not treated as forfeitable--
    (1) Death--(i) General rule. In the case of a participant's right to 
his employer-derived accrued benefit, merely because such accrued 
benefit is forfeitable by the participant to the extent it has not been 
paid or distributed to him prior to his death. This subparagraph shall 
not apply to a benefit which must be paid to a survivor in order to 
satisfy the requirements of section 401(a)(11).

[[Page 495]]

    (ii) Employee contributions. A participant's right in his accrued 
benefit derived from his own contributions must be nonforfeitable at all 
times. Such a right is not treated as forfeitable merely because, after 
commencement of annuity or pension payments in a benefit form provided 
under the plan, the participant dies without receiving payments equal in 
amount to his nonforfeitable accrued benefit derived from his 
contributions determined at the time of commencement.
    (2) Suspension of benefits upon reemployment of retiree. In the case 
of certain suspensions of benefits under section 411(a)(3)(B), see 
regulations prescribed by the Secretary of Labor under 29 CFR Part 2530 
(Department of Labor regulations relating to minimum standards for 
employee pension benefit plans).
    (3) Retroactive plan amendment. In the case of a participant's right 
to his employer-derived accrued benefit, merely because such benefit is 
subject to reduction to the extent provided by a plan amendment 
described in section 412(c)(8) and the regulations thereunder, which 
amendment is given retroactive effect in accordance with such section.
    (4) Other forfeiture rules--(i) Withdrawal of mandatory 
contributions. For rules allowing forfeitures on account of the 
withdrawal of mandatory contributions, see Sec. 1.411(a)-7(d) (2) and 
(3).
    (ii) Class year plans. For forfeiture rules pertaining to class year 
plans, see Sec. 1.411(d)-3(b).
    (iii) Additional requirements. For additional requirements relating 
to nonforfeitability of benefits in the event of a withdrawal by the 
employee, see section 401(a)(19) and Sec. 1.401(a)-19.
    (5) Multiemployer plan. In the case of a multiemployer plan 
described in section 414(f), merely because an employee's accrued 
benefit which results from service with an employer before such employer 
was required to contribute to the plan is forfeitable on account of the 
cessation of contributions by the employer of the employee. This 
subparagraph shall not apply to an employee's accrued benefit with 
respect to an employer which accrued under a plan maintained by that 
employer prior to the adoption by that employer of the multiemployer 
plan.
    (6) Lost beneficiary; escheat. In the case of a benefit which is 
payable, merely because the benefit is forfeitable on account of the 
inability to find the participant or beneficiary to whom payment is due, 
provided that the plan provides for reinstatement of the benefit if a 
claim is made by the participant or beneficiary for the forfeited 
benefit. In addition, a benefit which is lost by reason of escheat under 
applicable state law is not treated as a forfeiture.
    (7) Certain matching contributions. A matching contribution (within 
the meaning of section 401(m)(4)(A) and Sec. 1.40l(m)-1(f)(12)) is not 
treated as forfeitable even if under the plan it may be forfeited under 
Sec. 1.401(m)-1(e)(1) because the contribution to which it relates is 
treated as an excess contribution (within the meaning of Sec. 1.402(k)-
1(f)(2) and (g)(7)), excess deferral (within the meaning of 
Sec. 1.402(g)-1(e)(1)(iii)), or excess aggregate contribution (within 
the meaning of Sec. 1.401(m)-1(f)(8)).
    (c) Examples. The rules of this section are illustrated by the 
following examples:

    Example (1). Corporation A's plan provides that an employee is fully 
vested in his employer-derived accrued benefit after completion of 5 
years of service. The plan also provides that, if an employee works for 
a competitor he forfeits his rights in the plan. Such provision could 
result in the forfeiture of an employee's rights which are required to 
be nonforfeitable under section 411 and therefore the plan would not 
satisfy the requirements of section 411. If the plan limited the 
forfeiture to employees who completed less than 10 years of service, the 
plan would not fail to satisfy the requirements of section 411 because 
the forfeitures under this provision are limited to rights which are in 
excess of the minimum required to be nonforfeitable under section 
411(a)(2)(A).
    Example (2). Plan B provides that if an employee does not apply for 
benefits within 5 years after the attainment of normal retirement age, 
the employee loses his plan benefits. Such a plan provision could result 
in forfeiture of an employee's rights which are required to be 
nonforfeitable under section

[[Page 496]]

411 and, therefore, the plan would not satisfy the requirements of 
section 411.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42326, Aug. 23, 1977, as amended by T.D. 8357, 56 FR 
40549, Aug. 15, 1991]



Sec. 1.411(a)-4T  Forfeitures, suspensions, etc. (temporary).

    (a) Nonforfeitability. Certain rights in an accrued benefit must be 
nonforfeitable to satisfy the requirements of section 411(a). This 
section defines the term ``nonforfeitable'' for purposes of these 
requirements. For purposes of section 411 and the regulations 
thereunder, a right to an accrued benefit is considered to be 
nonforfeitable at a particular time if, at that time and thereafter, it 
is an unconditional right. Except as provided by paragraph (b) of this 
section, a right which, at a particular time, is conditioned under the 
plan upon a subsequent event, subsequent performance, or subsequent 
forbearance which will cause the loss of such right is a forfeitable 
right at that time. Certain adjustments to plan benefits, such as 
adjustments in excess of reasonable actuarial reductions, can result in 
rights being forfeitable. Rights which are conditioned upon a 
sufficiency of plan assets in the event of a termination or partial 
termination are considered to be forfeitable because of such condition. 
However, a plan does not violate the nonforfeitability requirements 
merely because in the event of a termination an employee does not have 
any recourse toward satisfaction of his nonforfeitable benefits from 
other than the plan assets, the Pension Benefit Guaranty Corporation, or 
a trust established and maintained pursuant to sections 4041(c)(3)(B) 
(ii) or (iii) and section 4049 of ERISA with respect to the plan. 
Furthermore, nonforfeitable rights are not considered to be forfeitable 
by reason of the fact that they may be reduced as allowed under sections 
401(a)(5) and 401(l). To the extent that rights are not required to be 
nonforfeitable to satisfy the minimum vesting standards, or the 
nondiscrimination requirements of section 401(a)(4), they may be 
forfeited without regard to the limitations on forfeitability required 
by this section. The right of an employee to repurchase his accrued 
benefit for example under section 411(a)(3)(D), is an example of a right 
which is required to satisfy such standards. Accordingly, such a right 
is subject to the limitations on forfeitability. Rights which are 
required to be prospectively nonforfeitable under the vesting standards 
are nonforfeitable and may not be forfeited until it is determined that 
such rights are, in fact, in excess of the vesting standards. Thus, 
employees have a right to vest in the accrued benefits if they continue 
in employment of employers maintaining the plan unless a forfeitable 
event recognized by section 411 occurs. For example, if a plan covered 
employees in Division A of Corporation X under a plan utilizing a 5-year 
100 percent vesting schedule, the plan could not forfeit employees' 
rights on account of their moving to service in Division B of 
Corporation X prior to completion of 5 years of service even though 
employees are not vested at that time.
    (b) [Reserved]
    (c) Examples. The rules of this section ae illustrated by the 
following examples:

    Example (1). Corporation A's plan provides that an employee is fully 
vested in his employer-derived accrued benefit after completion of 3 
years of service. The plan also provides that if the employee works for 
a competitor he forfeits his rights in the plan. Such provision could 
result in the forfeiture of an employee's rights which are required to 
be nonforfeitable under section 411 and therefore the plan would not 
satisfy the requirements of section 411. If the plan limited the 
forfeiture to employees who completed less than 5 years of service, the 
plan would not fail to satisfy the requirements of section 411 because 
the forfeitures under this provision are limited to rights which are in 
excess of the minimum required to be nonforfeitable under section 
411(a)(2)(A).

[T.D. 8170, 53 FR 241, Jan. 6, 1988]



Sec. 1.411(a)-5  Service included in determination of nonforfeitable percentage.

    (a) In general. Under section 411(a)(4), for purposes of determining 
the nonforfeitable percentage of an employee's right to his employer-
derived accrued benefit under section 411(a)(2) and Sec. 1.411(a)-3, all 
of an employee's years of service with an employer or employers 
maintaining the plan shall be taken

[[Page 497]]

into account except that years of service described in paragraph (b) of 
this section may be disregarded.
    (b) Certain service. For purposes of paragraph (a) of this section, 
the following years of service may be disregarded:
    (1) Service before age 22. (i) In the case of a plan which satisfies 
the requirements of section 411(a)(2) (A) or (B) (relating to 10-year 
vesting and 5-15-year vesting, respectively), a year of service 
completed by an employee before he attains age 22.
    (ii) In the case of a plan which does not satisfy the requirements 
of section 411(a)(2) (A) or (B), a year of service completed by an 
employee before he attains age 22 if the employee is not a participant 
(for purposes of section 410) in the plan at any time during such year.
    (iii) For purposes of this subparagraph in the case of a plan 
utilizing computation periods, service during a computation period 
described in section 411(a)(5)(A) within which the employee attains age 
22 may not be disregarded. In the case of a plan utilizing the elapsed 
time method described in Sec. 1.410(a)-7, service on or after the date 
on which the employee attains age 22 may not be disregarded.
    (2) Contributory plans. In the case of a plan utilizing computation 
periods, a year of service completed by an employee under a plan which 
requires mandatory contributions (within the meaning of section 
411(c)(2)(C) and Sec. 1.411(c)-1(c)(4)) to be made by the employee for 
such year, if the employee does not participate for such year solely 
because of his failure to make all mandatory contributions to the plan 
for such year. If the employee contributes any part of the mandatory 
contributions for the year, such year may not be excluded by reason of 
this subparagraph. In the case of a plan utilizing the elapsed time 
method described in Sec. 1.410(a)-7, the service which may be 
disregarded is the period with respect to which the mandatory 
contribution is not made.
    (3) Plan not maintained--(i) In general. An employee's years of 
service with an employer during any period for which the employer did 
not maintain the plan or a predecessor plan may be disregarded for 
purposes of section 411(a)(2). Paragraph (b)(3)(ii) of this section 
provides rules regarding the period prior to the adoption of a plan. 
Paragraph (b)(3)(iii) of this section provides rules regarding the 
period after the termination of a plan. Paragraph (b)(3)(iv) of this 
section provides rules regarding employers who have certain 
relationships with other employers maintaining the plan.
    (ii) Period prior to adoption. The period for which a plan is not 
maintained by an employer includes the period before the plan was 
established. For purposes of this subdivision, a plan is established on 
the first day of the plan year in which the plan is adopted even though 
the plan is adopted after such first day. Except as provided in 
paragraph (b)(3)(iv) of this section if an employer adopts a plan which 
has previously been established by another employer or group of 
employers, the plan is not maintained by the adopting employer prior to 
the first day of the plan year in which the plan is adopted by the 
adopting employer. In the case of a transfer of assets or liabilities 
(including a merger or consolidation) involving two plans maintained by 
a single employer, the successor (or transferee) plan is treated as if 
it was established at the same time as the date of the establishment of 
the earliest component plan. In the case of a plan merger, 
consolidation, or transfer of plan assets or liabilities involving plans 
of two or more employers, the successor plan is treated as if it were 
established on each of the separate dates on which such component plan 
was established for the employees of each employer. Thus, for example, 
if employer A establishes a plan January 1, 1970, and employer B 
establishes a plan January 1, 1980, and the plans were subsequently 
merged, then the merged plan would be treated as if it were in existence 
on January 1, 1970, with respect to A's employees and as if it were in 
existence on January 1, 1980, with respect to B's employees.
    (iii) Period after termination or withdrawal. The period for which a 
plan is not maintained by an employer includes the period after the plan 
is terminated. For purposes of this section, a plan is terminated at the 
date there is

[[Page 498]]

a termination of the plan within the meaning of section 411(d)(3)(A) and 
the regulations thereunder. Notwithstanding the preceding sentence, if 
contributions to or under a plan are made after termination, the plan is 
treated as being maintained until such contributions cease, whether or 
not accruals are made after such termination. If, after termination of a 
plan in circumstances under which the employer may be liable to the 
Pension Benefit Guaranty Corporation under section 4062 of the Act, 
employer contributions are made to or under the plan to fund benefits 
accrued at the time of termination, such contributions shall, for 
purposes of this paragraph, be deemed to be payments in satisfaction of 
employer liability to such Corporation rather than contributions to or 
under the plan. In the case of a plan maintained by more than one 
employer, the period for which the plan is not maintained by the 
withdrawing employer includes the period after the withdrawal from the 
plan.
    (iv) Certain employers. For purposes of this subparagraph--
    (A) Predecessor employers. Service with a predecessor employer who 
maintained the plan of the current employer is treated as service with 
such current employer (see section 414(a)(1) and the regulations 
thereunder), and certain service with a predecessor employer who did not 
maintain the plan of the current employer is treated as service with the 
current employer (see section 414(a)(2) and the regulations thereunder).
    (B) Related employers. Service with an employer is treated as 
service for certain related employers for the period during which the 
employers are related. These related employers include members of a 
controlled group of corporations (within the meaning of section 1563(a), 
determined without regard to subsections (a)(4) and (e)(3) (C) thereof) 
and trades or businesses (whether or not incorporated) which are under 
common control (see section 414 (b) and (c) and 29 CFR Part 2530, 
Department of Labor regulations relating to minimum standards for 
employee pension benefits plans).
    (C) Plan maintained by more than one employer. Service with an 
employer who maintains a plan is treated as service for each other 
employer who maintains that plan for the period during which the 
employers are maintaining the plan (see section 413 (b)(4) and (c)(3) 
and 29 CFR Part 2530, Department of Labor regulations relating to 
minimum standards for employee pension benefit plans).
    (v) Predecessor plan--(A) General rule. In the case of an employee 
who was covered by a predecessor plan, the time the successor of such 
plan is maintained for such employee includes the time the predecessor 
plan was maintained if, as of the later of the time the predecessor plan 
is terminated or the successor plan is established, the employee's years 
of service under the predecessor plan are not equalled or exceeded by 
the aggregate number of consecutive 1-year breaks in service occuring 
after such years of service. Years of service and breaks in service, 
without regard to whether the employee has nonforfeitable rights under 
the predecessor plan, are determined under section 411(a) (5) and (6) 
except that years between the termination date of the predecessor plan 
and the date of establishment of the successor plan do not count as 
years of service.
    (B) Definition of predecessor plan. For purposes of this section, 
if--
    (1) An employer establishes a retirement plan (within the meaning of 
section 7476(d)) qualified under subchapter D of chapter 1 of the Code 
within the 5-year period immediately preceding or following the date 
another such plan terminates, and
    (2) The other plan is terminated during a plan year to which this 
section applies.

The terminated plan is a predecessor plan with respect to such other 
plan.
    (C) Example. The rules provided by this subparagraph are illustrated 
by the following example:

    Example. (1) Employer X's qualified plan A terminated on January 1, 
1977, Employer X established qualified plan B on January 1, 1981. Under 
paragraph (b)(3)(v)(B) of this section, plan A is a predecessor plan 
with respect to plan B because plan B is established within the 5-year 
period immediately following the date plan A terminated.
    (2) Employee C was not covered by the A plan. Under the general rule 
in subdivision

[[Page 499]]

(v)(A) of this subparagraph, plan B is not maintained until January 1, 
1981, with respect to Employee C.
    (3) Employee D was covered by the A plan. On December 31, 1976, D 
had 4 years of service. D had 4 consecutive 1-year breaks in service 
because, during the years between the termination of plan A and the 
establishment of plan B, he did not have more than 500 hours of service 
in any applicable computation period. Because D's consecutive 1-year 
breaks (4) equal his years of service prior to his breaks (4), plan B is 
not maintained until January 1, 1981, with respect to employee D.
    (4) Employee E was covered by the A plan. On December 31, 1975, E 
had 6 years of service. E had a 1-year break in service in 1976. E also 
had 4 consecutive 1-year breaks in service for the period between plan 
A's termination and plan B's establishment. Because E's years of service 
(6) are not less than his consecutive 1-year breaks (5), plan B is 
maintained for E as of the establishment date of plan A.

    (4) Break in service. A year of service which is not required to be 
taken into account by reason of a break in service (within the meaning 
of section 411(a)(6) and Sec. 1.411(a)-6)).
    (5) Service before January 1, 1971. A year of service completed by 
an employee prior to January 1, 1971, unless the employee completes at 
least 3 years of service at any time after December 31, 1970. For 
purposes of determining if an employee completes 3 years of service, 
whether or not consecutive, the exceptions of section 411(a)(4) are not 
applicable. For the meaning of the term ``year of service'', see 
regulations prescribed by the Secretary of Labor under 29 CFR Part 2530, 
relating to minimum standards for employee pension benefit plans.
    (6) Service before effective date. A year of service completed 
before the first plan year for which this section applies to the plan, 
if such service would have been disregarded under the plan rules 
relating to breaks in service (whether or not such rules are so 
designated in the plan) as such rules were in effect from time to time 
under the plan. For this purpose, plan rules which result in the loss of 
prior vesting or benefit accruals of an employee, or which deny an 
employee eligibility to participate, by reason of separation or failure 
to complete a required period of service within a specified priod of 
time (e.g., 300 hours in one year) will be considered break in service 
rules See Sec. 1.411(a)-9 for requirements relating to certain 
amendments to the break in service rules of a plan.
    (i) [Reserved]
    (ii) Examples. The rules of this subparagraph are illustrated by the 
following examples:

    Example 1. The A plan in 1971 provides for immediate participation 
and vesting at normal retirement age. Employees accrue a unit benefit 
based on their compensation in each year. The plan provides that if an 
employee is not employed on the last day of the calendar year, he loses 
all accrued benefits. The requirement of employment on the last day of 
the year is a break in service rule because employees can lose benefits 
by reason of their separation. Accordingly, in the case of employees who 
separate and do not return by the close of the year, service which is 
completed prior to separation may be disregarded.
    Example 2. The B plan in 1971 excludes from plan participation 
employees who work less than 1,200 hours per year. Because years of less 
than 1,200 hours are not taken into account under the B plan for 
eligibility to participate, such years are excluded under rules relating 
to breaks in service. Therefore, the years can be disregarded under this 
subparagraph.
    Example 3. The C plan in 1971 provides for immediate participation 
and provides accruals and vesting credit for 1,200 hours or more in a 
given year. The plan provides that if a participant works less than 300 
hours in a given year, he loses all prior vesting and benefit credits. 
The 300 hour rule is a break in service rule because the failure to 
complete 300 hours results in the loss of vesting and prior service 
credit. The 1,200 hour requirement is not a break in service rule 
because even though employees do not increase vesting or accrue benefits 
for service between 300 and 1,200 hours, they cannot lose prior vesting 
or benefits for such service. Accordingly, the C plan can disregard 
completed years only on account of less than 300 hours of service by an 
employee.

    (c) Special continuity rule for certain plans. For special rules for 
computing years of service in the case of a plan maintained by more than 
one employer, see 29 CFR Part 2530 (Department of Labor regulations 
relating to minimum standards for employee pension benefit plans).

(Sec. 411 (88 Stat. 901, 26 U.S.C. 411))

[T.D. 7501, 42 FR 42327, Aug. 23, 1977, as amended by T.D. 7703, 45 FR 
40985, June 17, 1980]

[[Page 500]]



Sec. 1.411(a)-6  Year of service; hours of service; breaks in service.

    (a) Year of service. Under section 411 (a)(5)(A), for purposes of 
the regulations thereunder, the term ``year of service'' is defined in 
regulations prescribed by the Secretary of Labor under section 
203(b)(2)(A) of the Employee Retirement Income Security Act of 1974. For 
special rules applicable to seasonal industries and maritime industries, 
see regulations prescribed by the Secretary of Labor under subparagraphs 
(C) and (D) of section 203(b)(2) of the Employee Retirement Income 
Security Act of 1974.
    (b) Hours of service. Under section 411(a)(5)(B), for purposes of 
the regulations thereunder, the term ``hours of service'' has the 
meaning provided by section 410(a)(3)(C). See regulations prescribed by 
the Secretary of Labor under 29 CFR Part 2530, relating to minimum 
standards for employee pension benefit plans.
    (c) Breaks in service. Under section 411(a)(6), for purposes of 
Sec. 1.411(a)-5(b)(4) and of this paragraph--
    (1) In general--(i) Year of service after 1-year break in service. 
In the case of any employee who has incurred a 1-year break in service, 
years of service completed before such break are not required to be 
taken into account until the employee has completed one year of service 
after his return to service.
    (ii) Defined contribution plan. In the case of a participant in a 
defined contribution plan or in an insured defined benefit plan (which 
plan satisfies the requirements of section 411 (b)(1)(F) and 
Sec. 1.411(b)-1) who has incurred a 1-year break in service, years of 
service completed after such break are not required to be taken into 
account for purposes of determining the nonforfeitable percentage of the 
participant's right to employer-derived benefits which accrued before 
such break. This subdivision does not permit years of service completed 
before a 1-year break in service to be disregarded in determining the 
nonforfeitable percentage of a participant's right to employer-derived 
benefits which accrue after such break.
    (iii) Nonvested participants. In the case of an employee who is a 
nonvested participant in employer-derived benefits at the time he incurs 
a 1-year break in service, years of service completed by such 
participant before such break are not required to be taken into account 
for purposes of determining the nonforfeitable percentage of his right 
to employer-derived benefits if at such time the number of consecutive 
1-year breaks in service included in his most recent break in service 
equals or exceeds the aggregate number of his years of service, whether 
or not consecutive, completed before such break. In the case of a plan 
utilizing the elapsed time method described in Sec. 1.410(a)-7, the 
condition in the preceding sentence shall be satisfied if the period of 
severance is at least one year and the consecutive period of severance 
equals or exceeds his prior period of service, whether or not 
consecutive, completed before such period of severance. In computing the 
aggregate number of years of service prior to such break, years of 
service which could have been disregarded under this subdivision by 
reason of any prior break in service may be disregarded.
    (2) One-year break in service defined. The term ``1-year break in 
service'' means a calendar year, plan year, or other 12-consecutive 
month period designated by a plan (and not prohibited under regulations 
prescribed by the Secretary of Labor) during which the participant has 
not completed more than 500 hours of service. In the case of a plan 
utilizing the elapsed time method, the term ``1-year break in service'' 
means a 12-consecutive month period beginning on the severance from 
service date or any anniversary thereof and ending on the next 
succeeding anniversary of such date; provided, however, that the 
employee during such 12-consecutive-month period does not complete any 
hours of service within the meaning of 29 CFR Part 2530.200b-2(a) for 
the employer or employers maintaining the plan. See regulations 
prescribed by the Secretary of Labor under 29 CFR Part 2530, relating to 
minimum standards for employee pension benefit plans.
    (d) Examples. The rules provided by this section are illustrated by 
the following examples:

    Example (1). (i) X Corporation maintains a defined contribution plan 
to which section

[[Page 501]]

411 applies. The plan uses the calendar year as the vesting computation 
period. In 1980, Employee A, who was hired at age 35, separates from the 
service of X Corporation after completing 4 years of service. At the 
time of his separation, Employee A had a nonforfeitable right to 25 
percent of his employer-derived accrued benefit which was not 
distributed. In 1985, after incurring 5 consecutive one-year breaks in 
service. Employee A is re-employed by X Corporation and becomes an 
active participant in the plan. The plan provides that, for 1985 and all 
subsequent years, Employee A's previous years of service will not be 
taken into account for purposes of computing the nonforfeitable 
percentage of his employer-derived accrued benefit, solely because of 
his break in service.
    (ii) The plan fails to satisfy section 411. Section 411(a)(6)(B) 
would permit the plan to disregard Employee A's prior service for 
purposes of computing his nonforfeitable percentage in 1985 only, but 
such service must be taken into account in subsequent years unless there 
is another break in service. Under section 411(a)(6)(C), the plan is not 
required to take Employee A's post-break service into account for 
purposes of computing his nonforfeitable right to his prebreak employer-
derived accrued benefits. This provision, however, would not permit the 
plan to disregard pre-break service in determining his nonforfeitable 
right to his benefit accrued after the break. The exception provided by 
section 411(a)(6)(D) does not apply in the case of a participant who has 
any nonforfeitable right to his accrued benefit derived from employer 
contributions.
    Example (2). (i) X Corporation maintains a qualified plan to which 
sections 410 and 411 (relating to minimum participation standards and 
minimum vesting standards, respectively) apply. The plan permits 
participation upon completion of a year of service and provides that 
100% of an employee's employer-derived accrued benefit vests after 10 
years of service. The plan uses the calendar year as the vesting 
computation period. The plan provides that an employee who completes at 
least 1,000 hours of service in a 12-month period is credited with a 
year of service for participation and vesting purposes. The plan also 
provides that an employee who does not complete more than 500 hours of 
service in that 12-month period incurs a one-year break in service. The 
plan includes the rule described in section 411 (a)(6)(D) for 
participation and vesting purposes. Under this rule, an employee's years 
of service prior to a break in service may be disregarded under certain 
circumstances if he has no vested right to any employer-derived benefit 
under the plan. The plan does not contain the rule described in section 
411(a)(6)(B) (relating to the requirement of one year of service after a 
one-year break in service).
    (ii) Employee A commences employment with the X Corporation on 
January 1, 1977. Employee A's employment history for 1977 through 1989 
is as follows:

------------------------------------------------------------------------
                                                               Hours of 
                  Year ending December 31                      service  
                                                              completed 
------------------------------------------------------------------------
1977.......................................................        1,000
1978.......................................................          800
1979.......................................................        1,000
1980.......................................................          400
1981.......................................................        1,000
1982.......................................................            0
1983.......................................................          400
1984.......................................................        1,000
1985.......................................................            0
1986.......................................................            0
1987.......................................................          500
1988.......................................................          200
1989.......................................................        1,000
------------------------------------------------------------------------

Employee A's status as a participant during this period is determined as 
follows:
    1978: Employee A was a plan participant on January 1, 1978, because 
he completed a year of service (1,000 hours) in 1977. He did not 
complete a year of service in 1978 because he completed fewer than 1,000 
hours in that year. Because he completed more than 500 hours of service 
in 1978, however, Employee A did not incur a one-year break in service 
that year.
    1979: Employee A completes a year of service in 1979. Because he did 
not incur a one-year break in service in 1978, the plan may not 
disregard his 1977 service for purposes of determining his years of 
service as of January 1, 1979.
    1980: Employee A incurs a one-year break in service in 1980.
    1981: Because Employee A had completed 2 years of service prior to 
1981 and had incurred one 1-year break in service prior to 1981, under 
section 411(a)(6)(D), the plan may not disregard his pre-1980 service in 
1981. Employee A completes a year of service in 1981.
    1982: Employee A incurs a one-year break in service in 1982.
    1983: Employee A incurs a one-year break in service in 1983. As of 
the end of 1983, he has completed 3 years of service and has incurred 2 
consecutive one-year breaks in service.
    1984: Employee A completes a year of service in 1984. Under section 
411(a)(6)(D), his pre-1982 service may not be disregarded in 1984 
because, as of the beginning of 1984, his pre-1984 years of service (3) 
exceed his consecutive one-year breaks in service (2).
    1984-1988: Employee A incurs 4 consecutive one-year breaks in 
service during the years 1985 through 1988.
    1989: Employee A's pre-1989 service is disregarded in 1989 and all 
subsequent plan years because his years of service as of January 1, 
1989, equal the number of consecutive one-year breaks he has incurred as 
of that

[[Page 502]]

date. Therefore, as of the beginning of 1989, Employee A is not a plan 
participant. Employee A completes a year of service in 1989. (Although 
section 411(a)(6)(D) does not prohibit the plan provision under which 
Employee A's pre-1989 service is disregarded, that section does not 
require such a provision in a qualified plan.)

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42329, Aug. 23, 1977, as amended by T.D. 7703, 45 FR 
40985, June 17, 1980]



Sec. 1.411(a)-7  Definitions and special rules.

    (a) Accrued benefit. For purposes of section 411 and the regulations 
thereunder, the term ``accrued benefit'' means--
    (1) Defined benefit plan. In the case of a defined benefit plan--
    (i) If the plan provides an accrued benefit in the form of an annual 
benefit commencing at normal retirement age, such accrued benefit, or
    (ii) If the plan does not provide an accured benefit in the form 
described in subdivision (i) of this subparagraph, an annual benefit 
commencing at normal retirement age which is the actuarial equivalent 
(determined under section 411(c)(3) and Sec. 1.411(c)-(5) of the accrued 
benefit determined under the plan. In general, the term ``accrued 
benefits'' refers only to pension or retirement benefits. Consequently, 
accrued benefits do not include ancillary benefits not directly related 
to retirement benefits such as payment of medical expenses (or insurance 
premiums for such expenses), disability benefits not in excess of the 
qualified disability benefit (see section 411(a)(9) and paragraph (c)(3) 
of this section), life insurance benefits payable as a lump sum, 
incidental death benefits, current life insurance protection, or medical 
benefits described in section 401(h). For purposes of this paragraph a 
subsidized early retirement benefit which is provided by a plan is not 
taken into account, except to the extent of determining the normal 
retirement benefit under the plan (see section 411(a)(9) and paragraph 
(c) of this section). The accrued benefit includes any optional 
settlement at normal retirement age under actuarial assumptions no less 
favorable than those which would be applied if the employee were 
terminating his employment at normal retirement age. The accrued benefit 
does not include any subsidized value in a joint and survivor annuity to 
the extent that the annual benefit of the joint and survivor annuity 
does not exceed the annual benefit of a single life annuity.
    (2) Defined contribution plan. In the case of a defined contribution 
plan, the balance of the employee's account held under the plan.
    (b) Normal retirement age--(1) General rule. For the purposes of 
section 411 and the regulations thereunder, the term ``normal retirement 
age'' means the earlier of--
    (i) The time specified by a plan at which a plan participant attains 
normal retirement age, or
    (ii) The later of--
    (A) The time the plan participant attains age 65, or
    (B) The 10th anniversary of the date the plan participant commences 
participation in the plan.

If a plan, or the employer sponsoring the plan, imposes a requirement 
that an employee retire upon reaching a certain age, the normal 
retirement age may not exceed that mandatory retirement age. The 
preceding sentence will apply if the employer consistently enforces a 
mandatory retirement age rule, whether or not set forth in the plan or 
any related document. For purposes of subdivision (i) of this 
subparagraph, if an age is not specified by a plan as the normal 
retirement age then the normal retirement age under the plan is the 
earliest age beyond which the participant's benefits under the plan are 
not greater solely on account of his age or service. For purposes of 
paragraph (b)(1)(ii)(B) of this section, participation commences on the 
first day of the first year in which the participant commenced his 
participation in the plan, except that years which may be disregarded 
under section 410(a)(5)(D) may be disregarded in determining when 
participation commenced.
    (2) Examples. The provisions of this paragraph are illustrated by 
the following examples:

    Example (1). Plan A defines normal retirement age as age 65. Under 
the plan, benefits payable to participants who retire at or after

[[Page 503]]

age 60 are not reduced on account of early retirement. For purposes of 
section 411 and the vesting regulations, normal retirement age under 
Plan A is age 65 (determined under subparagraph (1)(i) of this 
paragraph). This is true even if in operation all participants retire at 
age 60.
    Example (2). Plan B does not specify any age as the normal 
retirement age. Under the plan, participants who have attained age 55 
are entitled to benefits commencing upon retirement but the benefits of 
participants who retire before attaining age 70 are subject to reduction 
on account of early retirement. For purposes of section 411 and the 
vesting regulations the normal retirement age under Plan B is the later 
of (i) age 65, or (ii) the 10th anniversary of the date a plan 
participant commences participation in the plan (assuming such date is 
prior to age 70).
    Example (3). The facts are the same as in example (2). Employee X 
first became a participant in Plan B on January 1, 1980 at age 53. His 
participation continued until December 31, 1980, when he separated from 
the service with no vested benefits. After incurring 5 consecutive 1-
year breaks in service, Employee X again becomes an employee and a plan 
participant on January 1, 1986, at age 59. For purposes of section 411, 
Employee X's normal retirement age under Plan B is age 69, the 10th 
anniversary of the date on which his year of plan participation 
commenced. His participation in 1980 may be disregarded under the last 
sentence of paragraph (b)(1) of this section.

    (c) Normal retirement benefit--(1) In general. For purposes of 
section 411 and the regulations thereunder, the term ``normal retirement 
benefit'' means the periodic benefit under the plan commencing upon 
early retirement (if any) or at normal retirement age, whichever benefit 
is greater.
    (2) Periodic benefit. For purposes of subparagraph (1) of this 
paragraph--
    (i) In the case of a plan under which a benefit is payable as an 
annuity in the same form upon early retirement and at normal retirement 
age, the greater benefit is determined by comparing the amount of such 
annuity payments.
    (ii) In the case of a plan under which an annuity benefit payable 
upon early retirement is not in the same form as an annuity benefit 
payable at normal retirement age, the greater benefit is determined by 
converting the annuity benefit payable upon early retirement age into 
the same form of annuity benefit as is payable at normal retirement age 
and by comparing the amount of the converted early retirement benefit 
payment with the amount of the normal retirement benefit payment.
    (iii) In the case of a plan which is integrated with the Social 
Security Act or any other Federal or State law, the periodic benefit 
payable upon and after early retirement age is adjusted for any 
increases in such benefits occurring on or after early retirement age 
which are taken into account under the plan. See however, section 
401(a)(15) and the regulations thereunder.
    (3) Benefits included. For purposes of this paragraph, the normal 
retirement benefit under a plan shall be determined without regard to 
ancillary benefits not directly related to retirement benefits such as 
medical benefits or disability benefits not in excess of the qualified 
disability benefit; see section 411(a)(7) and paragraph (a)(1) of this 
section. For this purpose, a qualified disability benefit is a 
disability benefit which is not in excess of the amount of the benefit 
which would be payable to the participant if he separated from service 
at normal retirement age.
    (4) Early retirement benefit; social security supplement. (i) For 
purposes of this paragraph, the early retirement benefit under a plan 
shall be determined without regard to any social security supplement.
    (ii) For purposes of this subparagraph, a social security supplement 
is a benefit for plan participants which--
    (A) Commences before the age and terminates before the age when 
participants are entitled to old-age insurance benefits, unreduced on 
account of age, under title II of the Social Security Act, as amended 
(see section 202 (a) and (g) of such Act), and
    (B) Does not exceed such old-age insurance benefit.
    (5) Special limitation. If a defined benefit plan bases its normal 
retirement benefits on employee compensation, the compensation must 
reflect the compensation which would have been paid for a full year of 
participation within the meaning of section 411(b)(3). If an employee 
works less than a full year of participation, the compensation used to 
determine benefits under the plan for such year of participation must be 
multiplied by the ratio of the number of hours for a complete year of

[[Page 504]]

participation to the number of hours worked in such year. A plan whose 
benefit formula is computed on a computation base which cannot decrease 
is not required to adjust employee compensation in the manner described 
in the previous sentence. Thus, for example, if a plan provided a 
benefit based on an employee's compensation for his highest five 
consecutive years or a separate benefit for each year of participation 
based on the employee's compensation for such year the plan would not 
have to so adjust compensation. However, if a plan provided a benefit 
based on an employee's compensation for the employee's last five years 
or the five highest consecutive years out of the last 10 years, the 
compensation, would have to be so adjusted. For special rules for 
applying the limitations on proration of a year of participation for 
benefit accrual, see regulations prescribed by the Secretary of Labor 
under 29 CFR Part 2530, relating to minimum standards for employee 
pension benefit plans.
    (6) Examples. The provisions of this paragraph are illustrated by 
the following examples:

    Example (1). Plan A provides for a benefit equal to 1% of high 5 
years compensation for each year of service and a normal retirement age 
of 65. The plan also provides for a full unreduced accrued benefit 
without any actuarial reduction for any employee at age 55 with 30 years 
of service. Even though the actuarial value of the early retirement 
benefit could exceed the value of the benefit at the normal retirement 
age, the normal retirement benefit would not include the greater value 
of the early retirement benefit because actuarial subsidies are ignored.
    Example (2). Plan B provides the following benefits: (1) at normal 
retirement age 65, $300/mo. for life and (2) at early retirement age 60, 
$400/mo. for life. The normal retirement benefit is $400/mo., the 
greater of the benefit payable at normal retirement age ($300) or early 
retirement ($400).
    Example (3). Assume the same facts as example (2) except that the 
early retirement benefit of $400 is reduced to $300 upon attainment of 
age 65. If each employee's social security benefit at age 65 is not less 
than $100, the $100 would be considered to be a social security 
supplement and would therefore be ignored. Consequently, the normal 
retirement benefit would be $300.
    Example (4). Plan C provides a benefit at normal retirement age 
equal to 1% per year of service, multiplied by the participant's 
compensation averaged over the 5 years immediately prior to retirement. 
An early retirement benefit is provided upon attainment of age 60 equal 
to the benefit accrued to date of early retirement reduced by 4 percent 
for each year by which the early retirement date precedes the normal 
retirement age of 65. Employee A was hired at age 30, participated 
immediately, and retired at age 65. Employee A's annual compensation was 
$50,000 between ages 55-60 and was reduced to $33,000 after age 60. The 
following table indicates the amount of annual benefit that would have 
been provided by the plan formula if the employee retired at or after 
age 60:

                                                                        
------------------------------------------------------------------------
                                  Final    Percent                      
             Age                 average   accrued  Reduction    Annual 
                               computated  benefit              benefit 
                                   (1)--     (2)--     (3)--       (4)--
------------------------------------------------------------------------
60...........................    $50,000        30      0.80    *$12,000
61...........................     46,600        31       .84      12,135
62...........................     43,200        32       .88      12,165
63...........................     39,800        33       .92      12,083
64...........................     36,400        34       .96      11,881
65...........................     33,000        35      1.00      11,550
Note.--Col. (1) times col. (2) times col. (3) equals col. (4).          

The normal retirement benefit is the greater of the benefit payable at 
normal retirement age or the early retirment benefit. Employee A's 
normal retirement benefit is $12,165, the greatest annual benefit 
Employee A would be entitled to.

    (d) Rules relating to certain distributions and cash-outs of accrued 
benefits--(1) In general. This paragraph sets forth vesting rules 
applicable to certain distributions from qualified plans and their 
related trusts (other than class year plans). Subparagraphs (2) and (3) 
set forth the exceptions to nonforfeitability on account of withdrawal 
of mandatory contributions provided by section 411(a)(3)(D). When a plan 
utilizes these exceptions with respect to a given participant's accrued 
benefit, such accrued benefit is not subject to the cash-out rules or 
vesting rules of subparagraphs (4) or (5), respectively. Section 411 
prescribes certain requirements with respect to accrued benefits under a 
qualified plan. These requirements would generally not be satisfied if 
the plan disregarded service in computing accrued benefits even though 
amounts were distributed on account of such service. Subparagraph (4) of 
this paragraph sets forth rules under section 411(a)(7)(B) which allow a 
plan

[[Page 505]]

to make distributions and compute accrued benefits without regard to the 
accrued benefit attributable to the distribution. When a defined 
contribution plan utilizes this exception with respect to an accrued 
benefit, the plan is not required to satisfy the rules of subparagraph 
(5) of this paragraph. Subparagraph (5) of this paragraph sets forth a 
vesting requirement applicable to certain distributions from defined 
contribution plans. Subparagraph (6) sets forth other rules which 
pertain to the distribution rules of this paragraph.
    (2) Withdrawal of mandatory contribution--(i) General rule. In the 
case of a participant's right to his employer-derived accrued benefit, a 
right is not treated as forfeitable merely because all or a portion of 
such benefit may be forfeited on account of the withdrawal by the 
participant of any amount attributable to his accrued benefit derived 
from his mandatory contributions (within the meaning of section 
411(c)(2)(C) and Sec. 1.411(c)-1) before he has become a 50 percent 
vested participant (within the meaning of Sec. 1.401(a)-19(b)(2)). For 
purposes of determining the vested percentage, the plan may disregard 
service after the withdrawal. For example, assume that a plan utilizes 
1000 hours for computing years of service and that for the computation 
period employee A had 1000 hours of service. If A was 40 percent vested 
at the beginning of the period but only had 800 hours at the time of the 
withdrawal, the plan could treat A as only 40 percent vested because 
service after the withdrawal can be disregarded. On the other hand, if A 
had 1000 hours at the time of the withdrawal, he must receive a year of 
service for the computation period, even though service is not taken 
into account until the end of such period.
    (ii) Plan repayment provision. (A) Subdivision (i) of this 
subparagraph shall not apply unless, at the time the amount described in 
such subdivision is withdrawn by the participant, the plan provides the 
employee with a right to restoration of his employer-derived accrued 
benefit to the extent forfeited in accordance with such subdivision upon 
repayment to the plan of the full amount of the withdrawal.
    (B) In the case of a defined benefit plan (as defined in section 
414(j)) the restoration of the employee's employer-derived accrued 
benefit may be conditioned upon repayment of interest on the full amount 
of the distribution. Such interest shall be computed on the amount of 
the distribution from the date of such distribution to the date of 
repayment, compounded annually from the date of distribution, at the 
rate determined under section 411(c)(2)(C) in effect on the date of 
repayment. A plan may provide for repayment of interest which is less 
than the amount determined under the preceding sentence.
    (C) In the case of both defined benefit plans and defined 
contribution plans, the plan repayment provision described in this 
subparagraph may provide that the employee must repay the full amount of 
the distribution in order to have the forfeited benefit restored. The 
plan provision may not require that such repayment be made sooner than 
the time described in paragraph (d)(2)(ii)(D) of this section.
    (D)(1) If a distribution is on account of separation from service, 
the time for repayment may not end before the earlier of--
    (i) 5 years after the first day the employee is subsequently 
employed, or
    (ii) The close of the first period of consecutive 1-year breaks in 
service commencing after the distribution.

If the distribution occurs for any other reason, the time for repayment 
may not end earlier than 5 years after the date of distribution. 
Nevertheless, a plan provision may provide for a longer period in which 
the employee may repay. For example, a plan could allow repayments to be 
made at any time before normal retirement age.
    (2) In the case of a plan utilizing the elapsed time method, 
described in Sec. 1.410(a)-7, the minimum time for repayment shall be 
determined as in paragraph (d)(2)(ii)(D)(1) of this section except as 
provided in this subdivision. The 5 consecutive 1-year break periods 
shall be determined by substituting the term ``1-year period of 
severance'' for the term ``1-year break in service''. Also, the 
repayment period both commences and closes in a manner determined by the 
Commissioner that is consistent with the rules in Sec. 1.410(a)-7

[[Page 506]]

and the substitution in section 411(a)(6) (C) and (D) of a 5-year break-
in-service rule for the former 1-year break-in-service rule.
    (E) A defined benefit plan using the break-in-service rule described 
in section 410(a)(5)(D) or a defined contribution plan using the break-
in-service rule described in section 411(a)(6)(C) for determining 
employees' accrued benefits is not required to provide for repayment by 
an employee whose accrued benefit is disregarded by reason of a plan 
provision using these rules.
    (iii) Computation of benefit. In the case of a defined contribution 
plan, the employer-derived accrued benefit required to be restored by 
this subparagraph shall not be less than the amount in the account 
balance of the employee which was forfeited, unadjusted by any 
subsequent gains or losses.
    (iv) Delayed forfeiture. A defined contribution plan may, in lieu of 
the forfeiture and restoration described in this subparagraph, provide 
that the forfeiture does not occur until the expiration of the time for 
repayment described in subdivision (ii) of this subparagraph provided 
that the conditions of this subparagraph are satisfied.
    (3) Withdrawal of mandatory contributions; accruals before September 
2, 1974--(i) General rule. In the case of a participant's right to the 
portion of the employer-derived benefit which accrued prior to September 
2, 1974, a right is not treated as forfeitable merely because all or 
part of such portion may be forfeited on account of the withdrawal by 
the participant of an amount attributable to his benefit derived from 
mandatory contributions (within the meaning of section 411(c)(2)(C) and 
Sec. 1.411(c)-1(c)(4)) made by the participant before September 2, 1974, 
if the amount so subject to forfeiture is no more than proportional to 
such amounts withdrawn. This subparagraph shall not apply to any plan to 
which any mandatory contribution (within the meaning of section 
411(c)(2)(C) and Sec. 1.411(c)-1(c)(4)) is made after September 2, 1974.
    (ii) Defined contribution plan. In the case of a defined 
contribution plan, the portion of a participant's employer-derived 
benefit which accrued prior to September 2, 1974, shall be determined on 
the basis of a separate accounting between benefits accruing before and 
after such date. Gains, losses, withdrawals, forfeitures, and other 
credits or charges must be separately allocated to such benefits. Any 
allocation made on a reasonable and consistent basis prior to September 
1, 1977, shall satisfy the requirements of this subdivision.
    (iii) Defined benefit plan. In the case of a defined benefit plan, 
the portion of a participant's employer-derived benefit which accrued 
prior to September 2, 1974, shall be determined in a manner consistent 
with the determination of an accrued benefit under section 411(b)(1)(D) 
(see Sec. 1.411(b)-1(c)). Any method of determining such accrued benefit 
which the Commissioner finds to be reasonable shall satisfy the 
requirements of this subdivision.
    (4) Certain cash-outs of accrued benefits--(i) Involuntary cash-
outs. For purposes of determining an employee's right to an accrued 
benefit derived from employer contributions under a plan, the plan may 
disregard service performed by the employee with respect to which--
    (A) The employee receives a distribution of the present value of his 
entire nonforfeitable benefit at the time of the distribution,
    (B) The requirements of section 411(a)(11) are satisfied at the time 
of the distribution. See Sec. 1.411(a)(11)-1.
    (C) The distribution is made due to the termination of the 
employee's participation in the plan, and
    (D) The plan has a repayment provision which satisfies the 
requirements of subdivision (iv) of this subparagraph in effect at the 
time of the distribution.

A distribution shall be deemed to be made due to the termination of an 
employe's participation in the plan if it is made no later than the 
close of the second plan year following the plan year in which such 
termination occurs. For purposes of determining the entire 
nonforfeitable benefit, the plan may disregard service after the 
distribution, as illustrated in subparagraph (2)(i) of this paragraph.
    (ii) Voluntary cash-outs. For purposes of determining an employee's 
accrued

[[Page 507]]

benefit derived from employer contributions under a plan, the plan may 
disregard service performed by the employee with respect to which--
    (A) The employee receives a distribution of the present value of his 
nonforfeitable benefit attributable to such service at the time of such 
distribution,
    (B) The employee voluntarily elects to receive such distribution,
    (C) The distribution is made on termination of the employee's 
participation in the plan, and
    (D) The plan has a repayment provision in effect at the time of the 
distribution which satisfies the requirements of subdivision (iv) of 
this subparagraph.

A distribution shall be deemed to be made on termination of 
participation in the plan if it is made not later than the close of the 
second plan year following the plan year in which such termination 
occurs. For purposes of determining the nonforfeitable benefit, the plan 
may disregard service after the distribution as illustrated in 
subparagraph (2)(i) of this subparagraph.
    (iii) Disregard of service. Service of an employee permitted to be 
disregarded under subdivision (i) or (ii) of the subparagraph is not 
required to be taken into account in computing the employee's accrued 
benefit under the plan. In the case of a voluntary distribution 
described in subdivision (ii) of this subparagraph which is less than 
the present value of the employee's total nonforfeitable benefit 
immediately prior to the distribution, the accrued benefit not required 
to be taken into account is such total accrued benefit multiplied by a 
fraction, the numerator of which is the amount of the distribution and 
the denominator of which is the present value of his total 
nonforfeitable benefit immediately prior to such distribution. For 
example, A who is 50 percent vested in an account balance of $1,000 
receives a voluntary distribution of $250. The accrued benefit which can 
be disregarded equals $1,000 times $250/$500, or $500. However, such 
service may not by reason of this paragraph be disregarded for purposes 
of determining an employee's years of service under sections 410(a)(3) 
and 411(a)(4).
    (iv) Plan repayment provision. (A) A plan repayment provision 
satisfies the requirements of this subdivision if, under the provision, 
the accrued benefit of an employee that is disregarded by a plan under 
this subparagraph is restored upon repayment to the plan by the employee 
of the full amount of the distribution. An accrued benefit is not 
restored unless all of the optional forms of benefit and subsidies 
relating to such benefit are also restored. A plan is not required to 
provide for repayment of an accrued benefit unless the employee--
    (1) Received a distribution that is in a plan year to which section 
411 applies (see Sec. 1.411(a)-2), which distribution is less than the 
amount of his accrued benefit determined under the same optional form of 
benefit as the distribution was made, and
    (2) Resumes employment covered under the plan.

    (B) Example. Plan A provides a single sum distribution equal to the 
present value of the normal form of the accrued benefit payable at 
normal retirement age which is a single life annuity. Plan A also 
provides a subsidized joint and survivor annuity and a subsidized early 
retirement annuity benefit. A participant who is fully vested and 
receives a single sum distribution equal to the present value of the 
single life annuity normal retirement benefit is not required to be 
provided the right under the plan to repay the distribution upon 
subsequent reemployment even though the participant received a 
distribution that did not reflect the value of the subsidy in the joint 
and survivor annuity or the value of the early retirement annuity 
subsidy. This is true whether or not the participant had satisfied at 
the time of the distribution all of the conditions necessary to receive 
the subsidies. However, if a participant does not receive his total 
accrued benefit in the optional form of benefit under which his benefit 
was distributed, the plan must provide for repayment. If the employee 
repays the distribution in accordance with section 411(a)(7), the plan 
must restore the employee's accrued benefit which would include the 
right to receive the subsidized joint and survivor annuity and the 
subsidized early retirement annuity benefit.

    (C) A plan may impose the same conditions on repayments for the 
restoration of employer-derived accrued benefits that are allowed as 
conditions for restoration of employer-derived accrued benefits upon 
repayment of mandatory contributions under paragraphs

[[Page 508]]

(d)(2)(ii) (B), (C), (D) and (E) of this section.
    (v) In the case of a defined contribution plan, the employer-derived 
accrued benefit required to be restored by this subparagraph shall not 
be less than the amount in the account balance of the employee, both the 
amount distributed and the amount forfeited, unadjusted by any 
subsequent gains or losses. Thus, for example, if an employee received a 
distribution of $250 when he was 25 percent vested in an account balance 
of $1,000, upon repayment of $250 the account balance may not be less 
than $1,000 even if, because of plan losses, the account balance, if not 
distributed, would have been reduced to $500.
    (5) Vesting requirement for defined contribution plans--(i) 
Application. The requirements of this subparagraph apply to a defined 
contribution plan which makes distributions to employees from their 
accounts attributable to employer contributions at a time when--
    (A) Employees are less than 100 percent vested in such accounts, and
    (B) Under the plan, employees can increase their percentage of 
vesting in such accounts after the distributions.
    (ii) Requirements. In order for a plan, to which this subparagraph 
applies, to satisfy the vesting requirements of section 411, account 
balances under the plan (with respect to which percentage vesting can 
increase) must be computed in a manner which satisfies either 
subdivision (iii) (A) or (B) of this subparagraph.
    (iii) Permissible methods. A plan many provide for either of the 
following methods, but not both, for computing account balances with 
respect to which percentage vesting can increase and from which 
distributions are made:
    (A)(1) A separate account is established for the employee's interest 
in the plan as of the time of the distribution, and
    (2) At any relevant time the employee's vested portion of the 
separate account is not less than an amount (``X'') determined by the 
formula: X=P(AB+(R x D))-(R x D). For purposes of applying the formula: 
P is the vested percentage at the relevant time; AB is the account 
balance at the relevant time; D is the amount of the distribution; R is 
the ratio of the account balance at the relevant time to the account 
balance after distribution; and the relevant time is the time at which, 
under the plan, the vested percentage in the account cannot increase.

A plan is not required to provide for separate accounts provided that 
account balances are maintained under a method that has the same effect 
as under this subdivision.
    (B) At any relevant time the employee's vested portion is not less 
than an amount (``X'') determined by the formula: X=P(AB+D)-D. For 
purposes of applying the formula, the terms have the same meaning as 
under subdivision (iii)(A)(2) of this subparagraph.
    (C) An application of the methods described in subdivisions (iii) 
(A) and (B) of this subparagraph is illustrated by the following 
examples:

    Example (1). The X defined contribution plan uses the method 
described in subdivision (iii)(A) of this subparagraph for computing 
account balances and the break in service rule described in section 
411(a)(6)(C) (service after a 1-year break does not increase the vesting 
percentage in account balances accrued prior to the break). The plan 
distributes $250 to A when A's account balance prior to the distribution 
equals $1,000 and he is 25 percent vested. At the time of the 
distribution, A has not incurred a 1-year break so that his vesting 
percentage can increase. Six years later, when A is 60 percent vested, 
he incurs a 1-year break so that his vesting percentage cannot increase. 
At this time his separate account balance equals $1,500. R=$1,500/$750 
or 2. A's separate account must equal 60 percent 
($1,500+(2 x $250))-(2 x $250) or 60 percent ($1,500+$500)-$500, or 
$1,200-$500 equals $700.
    Example (2). The Y defined contribution plan uses the method 
descirbed in subdivision (iii)(B) of this subparagraph for computing 
account balances and the break in service rule described in section 
411(a)(6)(C). The plan distributes $250 to B when B's account balance 
prior to the distribution equals $1,000 and he is 25 percent vested. At 
the time of the distribution, B has not incurred a 1-year break so that 
his vesting percentage can increase. Six years later, when A is 60 
percent vested, he incurs a 1-year break so that his vesting percentage 
cannot increase. At this time his account balance equals $1,500. B's 
separate account must equal 60 percent ($1,500+$250)-$250, 60% of 
$1,750-$250 equals $800.

    (6) Other rules--(i) Distributions on separation or other event. 
None of the rules

[[Page 509]]

of this paragraph preclude distributions to employees upon separation 
from service or any other event recognized by the plan for commencing 
distributions. Such a distribution must, of course, satisfy the 
applicable qualification requirements pertaining to such distributions. 
For example, a profitsharing plan could pay the vested portion of an 
account balance to an employee when he separated from service, but in 
order to satisfy section 411 the plan might not be able to forfeit the 
nonvested account balance until the employee has a 1-year break in 
service. Similarly, the fact that a plan cannot disregard an accrued 
benefit attributable to service for which an employee has received a 
distribution because the plan does not satisfy the cash-out requirements 
of subparagraph (4) of this paragraph does not mean that the employee's 
accrued benefit (computed by taking into account such service) cannot be 
offset by the accrued benefit attributable to the distribution.
    (ii) Joint and survivor requirements. See Sec. 1.401(a)-11(a)(2) 
(relating to joint and survivor annuities) for special rules applicable 
to certain distributions described in this paragraph.
    (iii) Plan repayments. (A) Under subparagraphs (2) and (4) of this 
paragraph, a plan may be required to restore accrued benefits in the 
event of repayment by an employee.
    (B) For purposes of applying the limitations of section 415 (c) and 
(e), in the case of a defined contribution plan, the repayment by the 
employee and the restoration by the employer shall not be treated as 
annual additions.
    (C) In the case of a defined contribution plan, the permissible 
sources for restoration of the accrued benefit are: income or gain to 
the plan, forfeitures, or employer contributions. Notwithstanding the 
provisions of Sec. 1.401-1(b)(1)(ii), contributions may be made for such 
an accrued benefit by a profit-sharing plan even though there are no 
profits. In order for such a plan to be qualified, account balances 
(accrued benefits) generally must correspond to assets in the plan. 
Accordingly, there cannot be an unfunded account balance. However, an 
account balance will not be deemed to be unfunded in the case of a 
restoration if assets for the restored benefit are provided by the end 
of the plan year following the plan year in which the repayment occurs.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42329, Aug. 23, 1977, as amended by T.D. 8038, 50 FR 
29374, July 19, 1985; T.D. 8219, 53 FR 31852, Aug. 22, 1988; 53 FR 
48534, Dec. 1, 1988]



Sec. 1.411(a)-8  Changes in vesting schedule.

    (a) Requirement of prior schedule. Under section 411(a)(10)(A), for 
plan years for which section 411 applies, a plan will be treated as not 
meeting the minimum vesting standards of section 411(a)(2) if the plan 
does not satisfy the requirements of this paragraph. If the vesting 
schedule of a plan is amended, then as of the date such amendment is 
adopted, the plan satisfies the requirements of this paragraph if, under 
the plan as amended, in the case of an employee who is a participant 
on--
    (1) The date the amendment is adopted, or
    (2) The date the amendment is effective, if later.

The nonforfeitable percentage (determined as of such date) of such 
employee's right to his employer-derived accrued benefit is not less 
than his percentage computed under the plan without regard to such 
amendment.
    (b) Election of former schedule--(1) In general. Under section 411 
(a)(10)(B), for plan years for which section 411 applies, if the vesting 
schedule of a plan is amended, the plan will not be treated as meeting 
the minimum vesting standards of section 411 (a)(2) unless the plan as 
amended, provides that each participant whose nonforfeitable percentage 
of his accrued benefit derived from employer contributions is determined 
under such schedule, and who has completed at least 5 years of service 
with the employer, may elect, during the election period, to have the 
nonforfeitable percentage of his accrued benefit derived from employer 
contributions determined without regard to such amendment. 
Notwithstanding the preceding sentence, no election need be provided for 
any participant whose nonforfeitable percentage under the plan, as 
amended, at any

[[Page 510]]

time cannot be less than such percentage determined without regard to 
such amendment.
    (2) Election period. For purposes of subparagraph (1) of this 
paragraph, the election period under the plan must begin no later than 
the date the plan amendment is adopted and end no earlier than the 
latest of the following dates:
    (i) The date which is 60 days after the day the plan amendment is 
adopted,
    (ii) The date which is 60 days after the day the plan amendment 
becomes effective, or
    (iii) The date which is 60 days after the day the participant is 
issued written notice of the plan amendment by the employer or plan 
administrator.
    (3) Service requirement. For purposes of subparagraph (1) of this 
paragraph, a participant shall be considered to have completed 5 years 
of service if such participant has completed 5 years of service, whether 
or not consecutive, without regard to the exceptions of section 
411(a)(4) prior to the expiration of the election period described in 
subparagraph (2) of this paragraph. For the meaning of the term ``year 
of service'', see regulations prescribed by the Secretary of Labor under 
29 CFR Part 2530, relating to minimum standards for employee pension 
benefit plans.
    (4) Election only by participant. The election described in 
subparagraph (1) of this paragraph is available only to an individual 
who is a participant in the plan at the time such election is made.
    (5) Election may be irrevocable. A plan, as amended, shall not fail 
to meet the minimum vesting standards of section 411(a)(2) by reason of 
section 411(a)(10)(B) merely because such plan provides that the 
election described in subparagraph (1) of this paragraph is irrevocable.
    (6) Relationship with section 411(a)(2). The election described in 
subparagraph (1) of this paragraph is available for a vesting schedule 
which does not satisfy the requirements of section 411(a)(2) only if 
under such schedule all participants have a 50 percent nonforfeitable 
right after 10 years of service, and a 100 percent nonforfeitable right 
after 15 years of service, in their employer-derived accrued benefit. If 
the vesting schedule provides less vesting than the percentages required 
by the preceding sentence, the plan can be amended to provide for such 
vesting.
    (c) Special rules--(1) Amendment of vesting schedule. For purposes 
of this section, an amendment of a vesting schedule is each plan 
amendment which directly or indirectly affects the computation of the 
nonforfeitable percentage of employees' rights to employer-derived 
accrued benefits. Consequently, such an amendment, for example, includes 
each change in the plan which affects either the plan's computation of 
years of service or of vesting percentages for years of service.
    (2) Aggregation of amendments. All plan amendments which are: (i) 
amendments of a vesting schedule within the meaning of subparagraph (1) 
of this paragraph and (ii) adopted and effective at the same time, shall 
be deemed to be a single amendment for purposes of applying the rules in 
paragraphs (a) and (b) of this section.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42333, Aug. 23, 1977]



Sec. 1.411(a)-8T  Changes in vesting schedule (temporary).

    (a) [Reserved]
    (b) Election of former schedule--(1) In general. Under section 
411(a)(10)(B), for plan years for which section 411 applies, if the 
vesting schedule of a plan is amended, the plan will not be treated as 
meeting the minimum vesting standards of section 411(a)(2) unless the 
plan as amended provides that each participant whose nonforfeitable 
percentage of his accrued benefit derived from employer contributions is 
determined under such schedule, and who has completed at least 3 years 
of service with the employer, may elect, during the election period, to 
have the nonforfeitable percentage of his accrued benefit derived from 
employer contributions determined without regard to such amendment. 
Notwithstanding the preceding sentence, no election need be provided for 
any participant whose nonforfeitable percentage under the plan, as 
amended, at any time cannot be less than such percentage determined 
without regard to such

[[Page 511]]

amendment. For employees not described in Sec. 1.411(a)-3T(e)(1), this 
section shall be applied by substituting ``5 years of service'' for ``3 
years of service'' where such language appears.
    (2) Election period. For purposes of subparagraph (1) of this 
paragraph, the election period under the plan must begin no later than 
the date the plan amendment is adopted and end no earlier than the 
latest of the following dates:
    (i) The date which is 60 days after the day the plan amendment is 
adopted,
    (ii) The date which is 60 days after the day the plan amendment 
becomes effective, or
    (iii) The date which is 60 days after the day the participant is 
issued written notice of the plan amendment by the employer or plan 
administrator.
    (3) Service requirement. For purposes of subparagraph (1) of this 
paragraph, a participant shall be considered to have completed 3 years 
of service if such participant has completed 3 years of service, whether 
or not consecutive, without regard to the exceptions of section 
411(a)(4) prior to the expiration of the election period described in 
subparagraph (2) of this paragraph. For the meaning of the term ``year 
of service'', see regulations prescribed by the Secretary of Labor under 
29 CFR Part 2530, relating to minimum standards for employee pension 
benefit plans.

[T.D. 8170, 53 FR 241, Jan. 6, 1988]



Sec. 1.411(a)-9  Amendment of break in service rules; transitional period.

    (a) In general. Under section 1017(f)(2) of the Employee Retirement 
Income Security Act of 1974, a plan is not a qualified plan (and a trust 
forming a part of such plan is not a qualified trust) if the rules of 
the plan relating to breaks in service are amended, and--
    (1) Such amendment is effective after January 1, 1974, and before 
the effective date of section 411, and
    (2) Under such amendment, the nonforfeitable percentage of any 
employee's right to his employer-derived accrued benefit is less than 
the lesser of the nonforfeitable percentage of such employee's right to 
such benefit--
    (i) Under the break in service rules provided by section 411(a)(6) 
and Sec. 1.411(a)-6(c), or
    (ii) The greatest such percentage under the plan as in effect on or 
after January 1, 1974 (provided the break in service rules of the plan 
were not in violation of any law or rule of law on January 1, 1974).
    (b) Break in service rules. For purposes of paragraph (a), the term 
``break in service rules'' means the rules provided by a plan relating 
to circumstances under which a period of an employee's service or plan 
participation is disregarded, for purposes of determining the extent to 
which his rights to his accrued benefit under the plan are 
unconditional, if under such rules such service is disregarded by reason 
of the employee's failure to complete a required period of service 
within a specified period of time. For this purpose, plan rules which 
result in the loss of prior vesting or benefit accruals of an employee, 
or which deny an employee eligibility to participate, by reason of 
separation or failure to complete a required period of service within a 
specified period of time (e.g., 300 hours in one year) will be 
considered break in service rules. For purposes of section 411(b)(3), 
service described under the plan's break in service rules, as in effect 
before the effective date of section 411, need not be counted.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42333, Aug. 23, 1977]



Sec. 1.411(a)-11  Restriction and valuation of distributions.

    (a) Scope--(1) In general. Section 411(a)(11) restricts the ability 
of a plan to distribute any portion of a participant's accrued benefit 
without the participant's consent. Section 411(a)(11) also restricts the 
ability of defined benefit plans to distribute any portion of a 
participant's accrued benefit in optional forms of benefit without 
complying with specified valuation rules for determining the amount of 
the distribution. If the consent requirements or the valuation rules of 
this section are not satisfied, the plan fails to satisfy the 
requirements of section 411(a).
    (2) Accrued benefit. For purposes of this section, an accrued 
benefit is valued taking into consideration the particular optional form 
in which the benefit is to be distributed. The value of an accrued 
benefit is the present value

[[Page 512]]

of the benefit in the distribution form determined under the plan. For 
example, a plan that provides a subsidized early retirement annuity 
benefit may specify that the optional single sum distribution form of 
benefit available at early retirement age is the present value of the 
subsidized early retirement annuity benefit. In this case, the 
subsidized early retirement annuity benefit must be used to apply the 
valuation requirements of this section and the resulting amount of the 
single sum distribution. However, if a plan that provides a subsidized 
early retirement annuity benefit specifies that the single sum 
distribution benefit available at early retirement age is the present 
value of the normal retirement annuity benefit, then the normal 
retirement annuity benefit is used to apply the valuation requirements 
of this section and the resulting amount of the single sum distribution 
available at early retirement age.
    (b) General consent rules. A plan must satisfy the participant 
consent requirement with respect to the distribution of a participant's 
nonforfeitable accrued benefit with a present value in excess of $3,500. 
See paragraphs (c) (3) and (4) for situations where no consent is 
required.
    (c) Consent, etc. requirements--(1) General rule. If an accrued 
benefit is immediately distributable, section 411(a)(11) permits plans 
to provide for the distribution of any portion of a participant's 
nonforfeitable accrued benefits only if the applicable consent 
requirements are satisfied.
    (2) Consent. (i) No consent is valid unless the participant has 
received a general description of the material features, and an 
explanation of the relative values of, the optional forms of benefit 
available under the plan in a manner that would satisfy the notice 
requirements of section 417(a)(3). See Sec. 1.401(a)-20 Q&A-36. In 
addition, so long as a benefit is immediately distributable, a 
participant must be informed of his right, if any, to defer receipt of 
the distribution. Furthermore, consent is not valid if a significant 
detriment is imposed under the plan on any participant who does not 
consent to a distribution. Whether or not a significant detriment is 
imposed shall be determined by the Commissioner by examining the 
particular facts and circumstances.
    (ii) For additional rules concerning the consent requirement of 
section 411(a)(11), see Sec. 1.411(a)-11T(c)(2)(ii) through (v) and 
(c)(8).
    (3) $3,500. Written consent of the participant is required before 
the commencement of the distribution of any portion of an accrued 
benefit if the present value of the nonforfeitable total accrued benefit 
is greater than $3,500. The consent requirements are deemed satisfied if 
such value does not exceed $3,500 and the plan may distribute such 
portion to the participant as a single sum. Present value for this 
purpose must be determined in the same manner as under section 417(e); 
see Sec. 1.417(e)-1(d). If the present value determined at the time of a 
distribution to the participant exceeds $3,500, then the present value 
at any subsequent time shall be deemed to exceed $3,500.
    (4) Immediately distributable. Participant consent is required for 
any distribution while it is immediately distributable, i.e., prior to 
the later of the time a participant has attained normal retirement age 
(as defined in section 411(a)(8)) or age 62. Once a distribution is no 
longer immediately distributable, a plan may distribute the benefit in 
the form of a QJSA in the case of a benefit subject to section 417 or in 
the normal form in other cases without consent.
    (5) Death of participant. The consent requirements of section 
411(a)(11) do not apply after the death of the participant.
    (6) QDROs. The consent requirements of section 411(a)(11) do not 
apply to payments to an alternate payee, defined in section 414(p)(8), 
except as provided in a qualified domestic relations order pursuant to 
section 414(p).
    (7) Section 401(a)(9), etc. The consent requirements of section 
411(a)(11) do not apply to the extent that a distribution is required to 
satisfy the requirements of section 401(a)(9) or 415. See section 
401(a)(9) and the regulations thereunder and Sec. 1.401(a)-20 Q&A 23 for 
guidance on these requirements. Notwithstanding any provision to the 
contrary in section 401(a)(14) or Sec. 1.401(a)-14, a plan may not 
distribute a participant's nonforfeitable accrued benefit

[[Page 513]]

with a present value in excess of $3,500 while the benefit is 
immediately distributable unless the participant consents to such 
distribution. The failure of a participant to consent is deemed to be an 
election to defer commencement of payment of the benefit for purposes of 
section 401(a)(14) and Sec. 1.401(a)-14.
    (d) Distribution valuation requirements. In determining the present 
value of any distribution of any accrued benefit from a defined benefit 
plan, the plan must take into account specified valuation rules. For 
this purpose, the valuation rules are the same valuation rules for 
valuing distributions as set forth in section 417(e); see Sec. 1.417(e)-
1(d). This paragraph (d) applies both before and after the participant's 
death regardless of whether the accrued benefit is immediately 
distributable. This paragraph also applies whether or not the 
participant's consent is required under paragraphs (b) and (c) of this 
section.
    (e) Special rules--(1) Plan termination. The requirements of this 
section apply before, on and after a plan termination. If a defined 
contribution plan terminates and the plan does not offer an annuity 
option (purchased from a commercial provider), then the plan may 
distribute a participant's accrued benefit without the participant's 
consent. The preceding sentence does not apply if the employer, or any 
entity within the same controlled group as the employer, maintains 
another defined contribution plan, other than an employee stock 
ownership plan (as defined in section 4975(e)(7)). In such a case, the 
participant's accrued benefit may be transferred without the 
participant's consent to the other plan if the participant does not 
consent to an immediate distribution from the terminating plan. See 
section 411(d)(6) and the regulations thereunder for other rules 
applicable to transferee plans and plan terminations.
    (2) ESOP dividends. The requirements of this section do not apply to 
any distribution of dividends to which section 404(k) applies.
    (3) Other rules. See Sec. 1.401(a)-20 Q&As 14, 17 and 24 for other 
rules that apply to the section 411(a)(11) requirements.

[T.D. 8219, 53 FR 31853, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988, as 
amended by T.D. 8620, 60 FR 49221, Sept. 22, 1995]



Sec. 1.411(a)-11T  Restriction and valuation of distributions (temporary).

    (a)-(b) [Reserved]
    (c) Consent, etc. requirements--(1) General rule. [Reserved]
    (2) Consent--(i) [Reserved]
    (ii) Written consent of the participant to the distribution must not 
be made before the participant receives the notice of his or her rights 
specified in this paragraph (c)(2) and must not be made more than 90 
days before the date the distribution commences.
    (iii) A plan must provide participants with notice of their rights 
specified in this paragraph (c)(2) no less than 30 days and no more than 
90 days before the date the distribution commences. However, if the 
participant, after having received this notice, affirmatively elects a 
distribution, a plan will not fail to satisfy the consent requirement of 
section 411(a)(11) merely because the distribution commences less than 
30 days after the notice was provided to the participant, provided that 
the following requirement is met. The plan administrator must provide 
information to the participant clearly indicating that (in accordance 
with the first sentence of this paragraph (c)(2)(iii)) the participant 
has a right to at least 30 days to consider whether to consent to the 
distribution.
    (iv) For purposes of satisfying the requirements of this paragraph 
(c)(2), the plan administrator may substitute the annuity starting date, 
within the meaning of Sec. 1.401(a)-20, Q&A-10, for the date the 
distribution commences.
    (v) See Sec. 1.401(a)-20, Q&A-24 for a special rule applicable to 
consents to plan loans.
    (3)-(7) [Reserved]
    (8) Delegation to Commissioner. The Commissioner, in revenue 
rulings, notices, and other guidance published in the Internal Revenue 
Bulletin, may modify, or provide additional guidance with respect to, 
the notice and consent

[[Page 514]]

requirements of this section. See Sec. 601.601(d)(2)(ii)(b) of this 
chapter.

[T.D. 8620, 60 FR 49221, Sept. 22, 1995]



Sec. 1.411(b)-1  Accrued benefit requirements.

    (a) Accrued benefit requirements--(1) In general. Under section 
411(b), for plan years beginning after the applicable effective date of 
section 411, rules are provided for the determination of the accrued 
benefit to which a participant is entitled under a plan. Under a defined 
contribution plan, a participant's accrued benefit is the balance to the 
credit of the participant's account. Under a defined benefit plan, a 
participant's accrued benefit is his accrued benefit determined under 
the plan. A defined benefit plan is not a qualified plan unless the 
method provided by the plan for determining accrued benefits satisfies 
at least one of the alternative methods (described in paragraph (b) of 
this section) for determining accrued benefits with respect to all 
active participants under the plan. A defined benefit plan may provide 
that accrued benefits for participants are determined under more than 
one plan formula. In such a case, the accrued benefits under all such 
formulas must be aggregated in order to determine whether or not the 
accrued benefits under the plan for participants satisfy one of the 
alternative methods. A plan may satisfy different methods with respect 
to different classifications of employees, or separately satisfy one 
method with respect to the accrued benefits for each such 
classification, provided that such classifications are not so structured 
as to evade the accrued benefit requirements of section 411(b) and this 
section. (For example, if a plan provides that employees who commence 
participation at or before age 40 accrue benefits in a manner which 
satisfies the 133\1/3\ percent method of determining accrued benefits 
and employees who commence participation after age 40 accrue benefits in 
a manner which satisfies the 3 percent method of determining accrued 
benefits, the plan would be so structured as to evade the requirements 
of section 411(b).) A defined benefit plan does not satisfy the 
requirements of section 411(b) and this section merely because the 
accrued benefit is defined as the ``reserve under the plan''. Special 
rules are provided for the first two years of service by a participant, 
certain insured defined benefit plans, and certain reductions in accrued 
benefits due to increasing age or service. In addition, a special rule 
is provided with respect to accruals for service before the effective 
date of section 411.
    (2) Cross references--(i) 3 percent method. For rules relating to 
the 3 percent method of determining accrued benefits, see paragraph 
(b)(1) of this section.
    (ii) 133\1/3\ percent method. For rules relating to the 133\1/3\ 
percent method of determining accrued benefits, see paragraph (b)(2) of 
this section.
    (iii) Fractional method. For rules relating to the fractional method 
of determining accrued benefits, see paragraph (b)(3) of this section.
    (iv) Accruals before effective date. For rules relating to accruals 
for service before the effective date of section 411, see paragraph (c) 
of this section.
    (v) First 2 years of service. For special rules relating to 
determination of accrued benefit for first 2 continuous years of 
service, see paragraph (d)(1) of this section.
    (vi) Certain insured plans. For special rules relating to 
determination of accrued benefit under a defined benefit plan funded 
exclusively by insurance contracts, see paragraph (d)(2) of this 
section.
    (vii) Accruals decreased by increasing age or service. For special 
rules relating to prohibition of decrease in accrued benefit on account 
of increasing age or service, see paragraph (d)(3) of this section.
    (viii) Separate accounting. For rules relating to requirements for 
separate accounting, see paragraph (e) of this section.
    (ix) Year of participation. For definition of ``year of 
participation'', see paragraph (f) of this section.
    (b) Defined benefit plans. A defined benefit plan satisfies the 
requirements of section 411(b)(1) and this paragrah for a plan year to 
which section 411 and this section apply if it satisfies the 
requirements of subparagraph (1), (2), or (3) of this paragraph for such 
year.

[[Page 515]]

    (1) 3 percent method--(i) General rule. A defined benefit plan 
satisfies the requirements of this paragraph for a plan year if, as of 
the close of the plan year, the accrued benefit to which each 
participant is entitled, computed as if the participant separated from 
the service as of the close of such plan year, is not less than 3 
percent of the 3 percent method benefit, multiplied by the number of 
years (not in excess of 33\1/3\) of his participation in the plan 
including years after his normal retirement age. For purposes of this 
subparagraph, the ``3 percent method benefit'' is the normal retirement 
benefit to which the participant would be entitled if he commenced 
participation at the earliest possible entry age for any individual who 
is or could be a participant under the plan and if he served 
continuously until the earlier of age 65 or the normal retirement age 
under the plan.
    (ii) Special rules--(A) Compensation. In the case of a plan 
providing a retirement benefit based upon compensation during any 
period, the normal retirement benefit to which a participant would be 
entitled is determined as if he continued to earn annually the average 
rate of compensation which he earned during consecutive years of 
service, not in excess of 10, for which his compensation was the 
highest. For purposes of this subdivision (A), the number of consecutive 
years of service used in computing average compensation shall be the 
number of years of service specified under the plan (not in excess of 
10) for computing normal retirement benefits.
    (B) Social security, etc. For purposes of this subparagraph, for any 
plan year, social security benefits and all relevant factors used to 
compute benefits, e.g., consumer price index, are treated as remaining 
constant as of the beginning of the current plan year for all subsequent 
plan years.
    (C) Computation in certain cases. In the case of any plan to which 
the provisions of section 411(b)(1)(D) and paragraph (c) of this section 
are applicable, for any plan year the accrued benefit of any participant 
shall not be less than the accrued benefit otherwise determined under 
this subparagraph, reduced by the excess of the accrued benefit 
determined under this subparagraph as of the first day of the first plan 
year to which section 411 applies over the accrued benefit determined 
under section 411(b)(1)(D) and paragraph (c) of this section and 
increased by the amount determined under paragraph (c)(2)(v) of this 
section.
    (iii) Examples. The application of this subparagraph is illustrated 
by the following examples.

    Example (1). The M Corporation's defined benefit benefit plan 
provides an annual retirement benefit commencing at age 65 or $4 per 
month for each year of participation. As a condition of participation, 
the plan requires that an employee have attained age 25. The normal 
retirement age specified under the plan is age 65. The plan provides for 
no limit on the number of years of credited service. A, age 40, is a 
participant in the M Corporation's plan.
    A has completed 12 years of participation in the plan of the M 
Corporation as of the close of the plan year. Under subdivision (i) of 
this subparagraph, the normal retirement benefit commencing at age 65 to 
which a participant would be entitled if he commenced participation at 
the earliest possible entry age (25) under the plan and served 
continuously until normal retirement age (65) is an annual benefit of 
$1,920 [40 x (12 x $4)]. Under paragraph (b)(1)(i) of this section, the 
plan does not satisfy the requirements of this subparagraph unless A has 
accrued an annual benefit of at least $691 [0.03 x ($1,920 x 12)] as of 
the close of the plan year. Under the M Corporation plan, A is entitled 
to an accrued benefit of $576 [(12 x 12) x $4] as of the close of the 
plan year. Thus, with respect to A, the accrued benefit provided under 
the M Corporation plan does not satisfy the requirements of this 
subparagraph.
    Example (2). Assume the same facts as in example (1) except that the 
M Corporation's plan provides that only the first 30 years of 
participation are taken into account. Under subdivision (i) of this 
subparagraph, the normal retirement benefit commencing at age 65 to 
which a participant would be entitled if he commenced participation at 
the earliest possible entry age under the plan (25) and served 
continuously until normal retirement age (65) is an annual benefit of 
$1.440 [30 x $48]. Under paragraph (b)(1)(i) of this section, the plan 
does not satisfy the requirements of this subparagraph unless A has 
accrued an annual benefit of at least $518 [0.03 x ($1,440 x 12)] as of 
the close of the plan year. Under the M Corporation plan, A is entitled 
to an accrued benefit of $576 [(12 x $48]. Thus, with respect to A, the 
accrued benefit provided under the M Corporation plan satisfies the 
requirements of this subparagraph.
    Example (3). The N Corporation's defined benefit plan provides an 
annual retirement

[[Page 516]]

benefit commencing at age 65 of 50 percent of average compensation for 
the highest 3 consecutive years of compensation for an employee with 25 
years of participation. A participant who separates from service before 
age 65 is entitled to 2 percent of average compensation for the highest 
3 consecutive years of compensation for each year of participation not 
in excess of 25. The plan has no minimum age or service requirement for 
participation. The normal retirement age specified under the plan is age 
65. On December 31, 1990, B, age 40, is a participant in the N 
Corporation's plan. B began employment with the N Corporation and became 
a participant in the N Corporation's plan on January 1, 1980. Under this 
subparagraph, the normal retirement benefit to which a participant would 
be entitled if he commenced participation at the earliest possible entry 
age (0) under the plan and served continuously until normal retirement 
age (65) is 50 percent of average compensation for the highest 3 
consecutive years of compensation per year commencing at age 65. Under 
this subparagraph, B must have accrued an annual benefit of at least 
16.5 percent of his highest 3 consecutive years of compensation per year 
commencing at age 65 [0.03 x 50 percent of average compensation for the 
highest 3 consecutive years of compensation x 11] as of the close of the 
plan year. Under the N Corporation plan, B has accrued an annual benefit 
of 22 percent of average compensation for his highest 3 consecutive 
years of compensation per year commencing at age 65. Thus, with respect 
to B, the accrued benefit under the N Corporation plan satisfies the 
requirements of this subparagraph.
    Example (4). The P Corporation's defined benefit plan provides an 
annual retirement benefit commencing at age 65 of 50 percent of average 
compensation for the 3 consecutive years of compensation from the P 
Corporation next preceding normal retirement age. The plan has no 
minimum age or service requirement for participation. The normal 
retirement age under the plan is age 65. On December 31, 1990, C, age 
55, separates from service with the P Corporation. C began employment 
with the P Corporation and became a participant in the P Corporation's 
plan on January 1, 1980. As of December 31, 1990. C's average 
compensation for the 3 consecutive years preceding his separation from 
service is $15,000. Under this subparagraph, the normal retirement 
benefit to which a participant would be entitled if he commenced 
participation at the earliest possible entry age (0) under the plan and 
served continuously until normal retirement age (65) is an annual 
benefit of 50 percent of average compensation for the 3 consecutive 
years of compensation from the P Corporation next preceding normal 
retirement age  commencing  at  age  65.  C  must  have  accrued  an  
annual  benefit  of  at  least $2,475 commencing at age 65 
[0.03 x (0.050 x $15,000) x 11] as of his separation from the service 
with the P Corporation in order for the P Corporation's plan to satisfy 
the requirements of this subparagraph with respect to C.
    Example (5). On December 31, 1985, the R Corporation's defined 
benefit plan provided an annual retirement benefit commencing at age 65 
of $100 for each year of participation, not to exceed 30. As a condition 
of participation, the plan requires that an employee have attained age 
25. The normal retirement age specified under the plan is age 65. The 
appropriate computation period is the calendar year. On January 1, 1986, 
the plan is amended to provide an annual retirement benefit commencing 
at age 65 of $200 for each year of participation (before and after the 
amendment), not to exceed 30. B, age 40, is a participant in the R 
Corporation's plan. B has completed 15 years of participation in the 
plan of the R Corporation as of December 31, 1990. Under paragraph 
(b)(1)(i) of this section, the normal retirement benefit commencing at 
age 65 to which a participant would be entitled if he commenced 
participation at the earliest possible entry age (25) under the plan an 
served continuously until normal retirement age (65) is an annual 
benefit of $6,000 [30 x 200]. Under subdivision (i) of this 
subparagraph, the plan does not satisfy the requirements of this 
subparagraph unless B has accrued an annual benefit of at least $2,700 
[0.03 x $6,000 x 15] as of December 31, 1990. Under the R Corporation 
plan, B is entitled to an accrued benefit of $3,000 [$200 x 15] as of 
December 31, 1990. Thus, with respect to B, the accrued benefit provided 
under the R Corporation plan satisfies the requirements of this 
subparagraph.
    Example (6). On December 31, 1995, the J Corporation's defined 
benefit plan provided an annual retirement benefit commencing at age 65 
of $4,800 after 30 years of participation. The normal retirement age 
specified under the plan is age 65. The appropriate computation period 
is the calendar year. On January 1, 1996, the plan is amended to provide 
an annual retirement benefit commencing at age 65 of $6,000. A, age 40, 
is a participant in the J Corporation's plan since its adoption on 
January 1, 1986. Under paragraph (b)(1)(i) of this section, on December 
31, 1995, the normal retirement benefit commencing at age 5 to which a 
participant would be entitled if he commenced participation at the 
earliest possible entry age (0) under the plan and served continuously 
until normal retirement age (65) is an annual benefit of $4,800. Under 
paragraph (b)(1)(i) of this section, on January 1, 1996, the normal 
retirement benefit commencing at age 65 to which a participant would be 
entitled if he commenced participation at the earliest possible entry 
age (0) under the plan and served continuously until normal retirement 
age (65) is an annual benefit of $6,000. Under subdivision (i) of this

[[Page 517]]

subparagraph, the plan does not satisfy the requirements of this 
subparagraph unless A has an accrued benefit on December 31, 1995 of at 
least $1,440 [$4,800 x 0.02 x 10] and an accrued benefit on January 1, 
1996 of at least $1,800 [$6,000 x 0.03 x 10].
    Example (7). The X Company's defined benefit plan provides an annual 
retirement benefit commencing at age 65 of $4 per month for each year of 
participation (not to exceed 30). As a condition of participation, the 
plan requires that an employee have attained age 25. The normal 
retirement age specified under the plan is age 65. D, age 68, is a 
participant in the X Company's plan. D has completed 20 years of 
participation in the X Company plan as of the close of the plan year. 
Under paragraph (b)(1)(i) of this section, the normal retirement benefit 
commencing at age 65 to which a participant would be entitled if he 
commenced participation at the earliest possible entry age (25) under 
the plan and served continuously until normal retirement age (65) is an 
annual benefit, commencing at age 65, of $1,440 [30 x $48]. Under 
paragraph (b)(1)(i) of this section, the plan does not satisfy the 
requirements of this subparagraph unless D has accrued an annual 
benefit, commencing at age 65, of $864 [0.03 x $1,440 x 20] as of the 
close of the plan year. Under the X Company plan, D has accrued an 
annual benefit, commencing at age 65, of $960 [20 x $48]. Thus, with 
respect to D the accrued benefit provided under the X Company plan 
satisfies the requirements of this subparagraph.
    Example (8). Assume the same facts as in example (7) except that for 
purposes of determining accrued benefits under the plan the X Company's 
plan disregards all years of participation after normal retirement age. 
Under paragraph (b)(1)(i) of this section, the normal retirement benefit 
commencing at age 65 to which a participant would be entitled if he 
commenced participation at the earliest possible entry age (25) under 
the plan and served continuously until normal retirement age (65) is an 
annual benefit of $1,440 [30 x $48]. Under paragraph (b)(1)(i) of this 
section the plan does not satisfy the requirements of this subparagraph 
unless D has accrued an annual benefit, commencing at age 65, of $864 
[0.03 x $1,440 x 20] as of the close of the plan year. Under the X 
Company's plan D has accrued an annual benefit commencing at age 65, of 
$816 [17 x $48]. Thus, with respect to D, the accrued benefit provided 
under the X Company plan does not satisfy the requirements of this 
subparagraph.

    (2) 133\1/3\ percent rule--(i) General rule. A defined benefit plan 
satisfies the requirements of this subparagraph for a particular plan 
year if--
    (A) Under the plan the accrued benefit payable at the normal 
retirement age (determined under the plan) is equal to the normal 
retirement benefit (determined under the plan), and
    (B) The annual rate at which any individual who is or could be a 
participant can accrue the retirement benefits payable at normal 
retirement age under the plan for any later plan year cannot be more 
than 133\1/3\ percent of the annual rate at which he can accrue benefits 
for any plan year beginning on or after such particular plan year and 
before such later plan year.
    (ii) Special rules. For purposes of this subparagraph--
    (A) Plan amendments. Any amendment to the plan which is in effect 
for the current plan year shall be treated as if it were in effect for 
all other plan years.
    (B) Change in accrual rate. Any change in an accrual rate which 
change does not apply to any individual who is of could be a participant 
in the plan year is disregarded. Thus, for example, if for its plan year 
beginning January 1, 1980, a defined benefit plan provides an accrued 
benefit in plan year 1980 of 2 percent of a participant's average 
compensation for his highest 3 years of compensation for each year of 
service and provides that in plan year 1981 the accrued benefit will be 
3 percent of such average compensation, the plan will not be treated as 
failing to satisfy the requirements of this subparagraph for plan year 
1980 because in plan year 1980 the change in the accrual rate does not 
apply to any individual who is or could be a participant in plan year 
1980. However, if, for example, a defined benefit plan provided for an 
accrued benefit of 1 percent of a participant's average compensation for 
his highest 3 years of compensation for each of the first 10 years of 
service and 1.5 percent of such average compensations for each year of 
service thereafter, the plan will be treated as failing to satisfy the 
requirements of this subparagraph for the plan year even though no 
participant is actually accruing at the 1.5 percent rate because an 
individual who could be a participant and who had over 10 years of 
service would accrue at the 1.5 percent rate, which rate exceeds 133\1/
3\ percent of the 1 percent rate.

[[Page 518]]

    (C) Early retirement benefits. The fact that certain benefits under 
the plan may be payable to certain participants before normal retirement 
age is disregarded. Thus, the requirements of subdivision (i) of this 
subparagraph must be satisfied without regard to any benefit payable 
prior to the normal retirement benefit (such as an early retirement 
benefit which is not the normal retirement benefit (see Sec. 1.411(a)-
7(c).
    (D) Social security, etc. For purposes of this paragraph, for any 
plan year, social security benefits and all relevant factors used to 
compute benefits, e.g., consumer price index, are treated as remaining 
constant as of the beginning of the current plan year for all subsequent 
plan years.
    (E) Postponed retirement. A plan shall not be treated as failing to 
satisfy the requirements of this subparagraph for a plan year merely 
because no benefits under the plan accrue to a participant who continues 
service with the employer after such participant has attained normal 
retirement age.
    (F) Computation of benefit. A plan shall not satisfy the 
requirements of this subparagraph if the base for the computation of 
retirement benefits changes solely by reason of an increase in the 
number of years of participation. Thus, for example, a plan will not 
satisfy the requirements of this subparagraph if it provides a benefit, 
commencing at normal retirement age, of the sum of (1) 1 percent of 
average compensation for a participant's first 3 years of participation 
multiplied by his first 10 years of participation (or, if less than 10 
his total years of participation) and (2) 1 percent of average 
compensation for a participant's 3 highest years of participation 
multiplied by each year of participation subsequent to the 10th year.
    (iii) Examples. The application of this subparagraph is illustrated 
by the following examples:

    Example (1). On January 1, 1980, the R Corporation's defined benefit 
plan provides for an annual benefit (commencing at age 65) of a 
percentage of a participant's average compensation for the period of 5 
consecutive years of participation for which his compensation is the 
highest. The percentage is 2 percent for each of the first 20 years of 
participation and 1 percent per year thereafter. The appropriate 
computation period is the calendar year. The R Corporation's plan 
satisfies the requirements of this subparagraph because the 133\1/3\ 
percent rule does not restrict subsequent accrual rate decreases.
    Example (2). On January 1, 1980, the J Corporation's defined benefit 
plan provides for an annual benefit (commencing at age 65) of a 
percentage of a participant's average compensation for the period of his 
final 5 consecutive years of participation. The percentage is 1 percent 
for each of the first 5 years of participation; 1\1/3\ percent for each 
of the next 5 years of participation; and 1\7/9\ percent for each year 
thereafter. The appropriate computation period is the calendar year. 
Even though no single accrual rate under the J Corporation's plan 
exceeds 133\1/3\ percent of the immediately preceding accrual rate, the 
J Corporation's plan does not satisfy the requirements of this 
subparagraph because the rate of accrual for all years of participation 
in excess of 10 (1\7/9\ percent) exceeds 133\1/3\ percent of the rate of 
accrual for any of the first 5 years of participation (1 percent).
    Example (3). On January 1, 1980, the C Corporation's defined benefit 
plan provides for an annual benefit (commencing at age 65) of a 
percentage of a participant's average compensation for the period of 3 
consecutive years of participation for which his compensation is the 
highest. The percentage is 2 percent for each of the first 5 years of 
participation; 1 percent for each of the next 5 years of participation; 
and 1\1/2\ percent for each year thereafter. The appropriate computation 
period is the calendar year. Even though the average rate of accrual 
under the C Corporation's plan is not less rapidly than ratably, the C 
Corporation's plan does not satisfy the requirements of this 
subparagraph because the rate of accrual for all years of participation 
in excess of 10 (1\1/2\ percent) for any employee who is actually 
accruing benefits or who could accrue benefits exceeds 133\1/3\ percent 
of the rate of accrual for the sixth through tenth years of 
participation, respectively (1 percent).

    (3) Fractional rule--(i) In general. A defined benefit plan 
satisfies the requirements of this paragraph if the accrued benefit to 
which any participant is entitled is not less than the fractional rule 
benefit multiplied by a fraction (not exceeding 1)--
    (A) The numerator of which is his total number of years of 
participation in the plan, and
    (B) The denominator of which is the total number of years he would 
have participated in the plan if he separated from the service at the 
normal retirement age under the plan.

[[Page 519]]

    (ii) Special rules. For purposes of this subparagraph--
    (A) Fractional rule benefit. The ``fractional rule benefit'' is the 
annual benefit commencing at the normal retirement age under the plan to 
which a participant would be entitled if he continued to earn annually 
until such normal retirement age the same rate of compensation upon 
which his normal retirement benefit would be computed. Such rate of 
compensation shall be computed on the basis of compensation taken into 
account under the plan (but taking into account average compensation for 
no more than the 10 years of service immediately preceding the 
determination). For purposes of this subdivision (A), the normal 
retirement benefit shall be determined as if the participant had 
attained normal retirement age on the date any such determination is 
made.
    (B) Social security, etc. For purposes of this subparagraph, for any 
plan year, social security benefits and all relevant factors used to 
compute benefits, e.g., consumer price index, are treated as remaining 
constant as of the beginning of the current plan year for all subsequent 
plan years.
    (C) Postponed retirement. A plan shall not be treated as failing to 
satisfy the requirements of this subparagraph merely because no benefits 
under the plan accrue to a participant who continues service with the 
employer after such participant has attained normal retirement age under 
the plan.
    (D) Computation in certain cases. In the case of any plan to which 
the provisions of section 411(b)(1)(D) and paragraph (c) of this section 
are applicable, for any plan year the accrued benefit of any participant 
shall not be less than the accrued benefit otherwise determined under 
this subparagraph, reduced by the excess of the accrued benefit 
determined under this subparagraph as of the first day of the first plan 
year to which section 411 applies over the accrued benefit determined 
under section 411(b)(1)(D) and paragraph (c) of this section and 
increased by the amount determined under paragraph (c)(2)(v) of this 
section.
    (iii) Examples. The application of this subparagraph is illustrated 
by the following examples:

    Example (1). The R Corporation's defined benefit plan provides an 
annual retirement benefit commencing at age 65 of 30 percent of a 
participant's average compensation for his highest 3 consecutive years 
of participation. If a participant separates from service prior to 
normal retirement age, the R Corporation's plan provides a benefit equal 
to an amount which bears the same ratio to 30 percent of such average 
compensation as the participant's actual number of years of 
participation in the plan bears to the number of years the participant 
would have participated in the plan had he separated from service at age 
65. The plan further provides that normal retirement age is age 65. A, 
age 55, is a participant in the R Corporation's plan for the current 
year, and A has 15 years of participation in the R Corporation's plan. 
As of the current year, A's average compensation for his highest 3 years 
of compensation is $20,000. The R Corporation's plan satisfies the 
requirements of this subparagraph because if A separates from the 
service in the current year he will be entitled to an annual benefit of 
$3,600 commencing at age 65 [0.3 x $20,000 x 15/25].
    Example (2). The J Corporation's defined benefit plan provides a 
normal retirement benefit of 1 percent per year of a participant's 
average compensation from the employer. In the case of a participant who 
separates from service prior to normal retirement age (65), the plan 
provides that the annual benefit is an amount which is equal to 1 
percent of such compensation multiplied by the number of years of plan 
participation actually completed by the participant. The plan year of 
the J Corporation's plan is the calendar year. B, age 55, is a 
participant in the J Corporation's plan for the current year. B became a 
participant in the J Corporation's plan on January 1, 1980. As of 
December 31, 1990, B's compensation history is as follows:

------------------------------------------------------------------------
                          Year                             Compensation 
------------------------------------------------------------------------
1980...................................................          $17,000
1981...................................................           18,000
1982...................................................           20,000
1983...................................................           20,000
1984...................................................           21,000
1985...................................................           22,000
1986...................................................           23,000
1987...................................................           25,000
1988...................................................           26,000
1989...................................................           29,000
1990...................................................           32,000
------------------------------------------------------------------------


[[Page 520]]

If B separates from service on December 31, 1990, he would be entitled 
to an annual benefit of $2,530 commencing at age 65. Because the J 
Corporation's plan does not limit the number of years of compensation to 
be taken into account in determining the normal retirement benefit, B's 
rate of compensation for purposes of determining his normal retirement 
benefit is $23,600 [$18,000 + $20,000 + $20,000 + $21,000 + $22,000 + 
$23,000 + $25,000 + $26,000 + $29,000 + $32,000]/10.

Under this subparagraph, B's accrued benefit under the J Corporation's 
plan as of December 31, 1990 must be not less than $2,561 per year 
commencing at age 65 [0.01  x  ($17,000 + $18,000 + $20,000 + $20,000 + 
$21,000 + $22,000 + $23,000 + $25,000 + $26,000 + $29,000 + $32,000 + 
($23,600  x  10))  x  11/21]. Thus, the J Corporation's plan would not 
satisfy the requirements of this subparagraph.

    (c) Accruals for service before effective date--(1) General rule. 
For a plan year to which section 411 applies, a defined benefit plan 
does not satisfy the requirements of section 411(b)(1) and this section 
unless, under the plan, the accrued benefit of each participant for plan 
years beginning before section 411 applies is not less than the greater 
of--
    (i) Such participant's accrued benefit (as of the day before section 
411 applies) determined under the plan as in effect from time to time 
prior to September 2, 1974 (without regard to any amendment adopted 
after such date), or
    (ii) One-half of the accrued benefit that would be determined with 
respect to the participant as of the day before section 411 applies if 
the participant's accrued benefit were computed for such prior plan 
years under a method which satisfies the requirements of section 
411(b)(1) (A), (B), or (C) and paragraph (b) (1), (2), or (3) of this 
section. See 29 CFR Part 2530, Department of Labor regulations relating 
to minimum standards for employee pension benefit plans, for time 
participation deemed to begin.
    (2) Special rules--(i) A plan shall not be deemed to fail to satisfy 
the requirements of section 411(b) and this section merely because the 
method for computing the accrued benefit of a participant for years of 
participation prior to the first plan year for which section 411 is 
effective with respect to the plan is not the same method for computing 
the accrued benefit of a participant for years of participation 
subsequent to such plan year.
    (ii) For purposes of paragraph (c)(1)(ii) of this section, section 
411(b)(1)(A) and paragraph (b)(1) of this section shall be applied as if 
the participant separated from service with the employer on the day 
before the first day of the first plan year to which section 411 
applies.
    (iii) For purposes of paragraph (c)(1)(ii) of this section, section 
411(b)(1)(B) and paragraph (b)(2) of this section shall be applied in 
the following manner:
    (A) Except as provided in (c)(2)(iii)(B) of this section, section 
411(b)(1)(B) and paragraph (b)(2) of this section shall be applied as if 
the participant separated from service with the employer on the day 
before the first day of the first plan year to which section 411 
applies.
    (B) In the case that the plan does not satisfy the requirements of 
section 411(b)(1)(B) and paragraph (b)(2) of this section at any time 
prior to the day specified in (c)(2)(iii)(A) of this section, the plan 
shall be deemed revised to the extent necessary to satisfy the 
requirements of section 411(b)(1)(B) and paragraph (b)(2) of this 
section for all plan years beginning before the applicable effective 
date of section 411 and this section. For purposes of the preceding 
sentence, a plan shall not be deemed revised to the extent necessary to 
satisfy the requirements of section 411(b)(1)(B) and paragraph (b)(2) of 
this section for a plan year if the benefit a participant would receive 
if he were employed until normal retirement age is reduced by such 
revision or if the revised rate of accrual with respect to such accrued 
benefit does not otherwise satisfy the requirements of section 
411(b)(1)(B) and paragraph (b)(2) of this section.
    (iv) For purposes of paragraph (c)(1)(ii) of this section, section 
411(b)(1)(C) and paragraph (b)(3) of this section shall be applied as if 
the participant separated from service on the day before the first day 
of the first plan year to which section 411 applies.
    (v) The excess of the accrued benefit payable at normal retirement 
age of any participant determined under section 411(b)(1) (A), (B), or 
(C) (without regard to section 411(b)(1)(D)), and

[[Page 521]]

paragraph (b)(1), (2), or (3) of this section (without regard to this 
paragraph) as of the day before the first day of the first plan year to 
which section 411 and this section applies over the accrued benefit 
determined under paragraph (c)(1) of this section shall be accrued in 
accordance with the provisions of the plan as in effect after the 
applicable effective date of section 411, as if the plan had been 
initially adopted on such effective date.
    (d) Special rules--(1) First 2 years of service. Notwithstanding 
paragraphs (1), (2), and (3) of paragraph (b) of this section, under 
section 411(b)(1)(E) and this subparagraph, a plan shall not be treated 
as failing to satisfy the requirements of paragraph (b) of this section 
solely because the accrual of benefits under the plan does not become 
effective until the employee has completed 2 continuous years of 
service. For purposes of this subparagraph, continuous years of service 
are years of service (within the meaning of section 410(a)(3)((A)) which 
are not separated by a break in service (within the meaning of section 
410(a)(5)). For years of service beginning after such 2 years of 
service, the accrued benefit of an employee shall not be less than that 
to which the employee would be entitled if section 411(b)(1)(E) and this 
subparagraph did not apply. Thus, for example, a plan which otherwise 
satisfies the requirements of paragraph (b)(2) of this section provides 
for a rate of accrual of 1 percent of average compensation for the 
highest 3 years of compensation beginning with the third year of service 
of a participant shall not be treated as satisfying paragraph (b)(2) of 
this section because as of the time the employee completes 3 continuous 
years of service there is no accrual during the first 2 years of 
service. In addition, a plan which otherwise satisfies the requirements 
of paragraph (b)(1) of this section and which requires that an employee 
must attain age 25 and complete 1 year of service prior to becoming a 
participant will not satisfy the requirements of paragraph (b)(1) of 
this section if an employee who completes 2 years of service prior to 
attaining age 25 does not begin accruals immediately upon commencement 
of participation in the plan. For rules relating to years of service, 
see 29 CFR part 2530, Department of Labor regulations relating to 
minimum standards for employee pension benefit plans.
    (2) Certain insured defined benefit plans. Notwithstanding 
paragraphs (b) (1), (2), and (3) of this section, a defined benefit plan 
satisfies the requirements of paragraph (b) of this section if such plan 
is funded exclusively by the purchase of contracts from a life insurance 
company and such contracts satisfy the requirements of sections 412(i) 
(2) and (3) and the regulations thereunder. The preceding sentence is 
applicable only if an employee's accrued benefit as of any applicable 
date is not less than the cash surrender value such employee's insurance 
contracts would have on such applicable date if the requirements of 
section 412(i) (4), (5), and (6) and the regulations thereunder were 
satisfied.
    (3) Accrued benefit may not decrease on account of increasing age or 
service. Notwithstanding paragraphs (b) (1), (2), and (3) of this 
section and paragraphs (d) (1) and (2) of this section, a defined 
benefit plan shall be treated as not satisfying the requirements of 
paragraphs (b) and (d) of this section if the participant's accrued 
benefit is reduced on account of any increase in his age or years of 
service. The preceding sentence shall not apply to social security 
supplements described in Sec. 1.411(a)-7(c)(4).
    (e) Separate accounting. A plan satisfies the requirements of this 
paragraph if the requirements of paragraph (e) (1) or (2) of this 
paragraph are met.
    (1) Defined benefit plan. In the case of a defined benefit plan, the 
requirements of this paragraph are satisfied if the plan requires 
separate accounting for the portion of each employee's accrued benefit 
derived from any voluntary employee contributions permitted under the 
plan. For purposes of this subparagraph the term ``voluntary employee 
contributions'' means all employee contributions which are not mandatory 
contributions within the meaning of section 411(c)(2)(C) and the 
regulations thereunder. See Sec. 1.411(c)-1(b)(1) for rules requiring 
the determination of such an accrued benefit by the use of a separate 
account.

[[Page 522]]

    (2) Defined contribution plan. In the case of a defined contribution 
plan, the requirements of this paragraph are not satisfied unless the 
plan requires separate accounting for each employee's accrued benefit. 
If a plan utilizes the break in service rule of section 411(a)(6)(C), an 
employee could have different percentages of vesting between pre-break 
and post-break accrued benefits. In such a case, the requirements of 
this paragraph are not satisfied unless the plan computes accrued 
benefits in a manner which takes into account different percentages. A 
plan which provides separate accounts for pre-break and post-break 
accrued benefits will be deemed to compute benefits in a reasonable 
manner.
    (f) Year of participation--(1) In general. This paragraph is 
inapplicable to a defined contribution plan. For purposes of determining 
an employee's accrued benefit, a ``year of participation'' is a period 
of service determined under regulations prescribed by the Secretary of 
Labor in 29 CFR Part 2530, relating to minimum standards for employee 
pension benefit plans.
    (2) Additional rule relating to year of participation. A trust shall 
not constitute a qualified trust if the plan of which such trust is a 
part provides for the crediting of a year of participation, or part 
thereof, and such credit results in the discrimination prohibited by 
section 401(a)(4).
    (g) Additional illustrations. The application of this section may be 
illustrated by the following example:

    Example. (i) The S Corporation established a defined benefit plan on 
January 1, 1980. The plan provides a minimum age for participation of 
age 25. The normal retirement age under the plan is age 65. The 
appropriate computation periods are the calendar year. The plan provides 
an annual benefit, commencing at age 65, equal to $96 per year of 
service for the first 25 years of service, and $48 per year of service 
for each additional year of service.
    (ii) The plan of the S Corporation does not satisfy the requirements 
of section 411(b)(1)(A) and paragraph (b)(1) of this section because the 
accrued benefit under the plan at some point will be less than the 
accrued benefit required under section 411(b)(1)(A) and paragraph (b)(1) 
of this section (i.e., 3 percent  x  normal retirement benefit  x  years 
of participation).
    (iii) The plan of the S Corporation does satisfy the requirements of 
section 411(b)(1)(B) and paragraph (b)(2) of this section because the 
rate of benefit accrual is equal in each of the first 25 years of 
service and the rate decreases thereafter.
    (iv) The plan of the S Corporation does satisfy the requirements of 
section 411(b)(1)(C) and paragraph (b)(3) of this section because the 
accrued benefit under the plan will equal or exceed the normal 
retirement benefit multiplied by the fraction described in paragraph 
(b)(3)(i) of this section.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42334, Aug. 23, 1977]



Sec. 1.411(c)-1  Allocation of accrued benefits between employer and employee contributions.

    (a) Accrued benefit derived from employer contributions. For 
purposes of section 411 and the regulations thereunder, under section 
411(c)(1), an employee's accrued benefit derived from employer 
contributions under a plan as of any applicable date is the excess, if 
any, of--
    (1) The total accrued benefit under the plan provided for the 
employee as of such date, over
    (2) The accrued benefit provided for the employee, derived from 
contributions made by the employee under the plan as of such date.
    For computation of accrued benefit derived from employee 
contributions to a defined contribution plan or from voluntary employee 
contributions to a defined benefit plan, see paragraph (b) of this 
section. For computation of accrued benefit derived from mandatory 
employee contributions to a defined benefit plan, see paragraph (c) of 
this section.
    (b) Accrued benefit derived from employee contribution to defined 
contribution plan, etc. For purposes of section 411 and the regulations 
thereunder, under section 411(c)(2)(A) the accrued benefit derived from 
employee contributions to a defined contribution plan is determined 
under paragraph (b) (1) or (2) of this section, whichever applies. Under 
section 411(d)(5), the accrued benefit derived from voluntary employee 
contributions to a defined benefit plan is determined under paragraph 
(b)(1) of this section.
    (1) Separate accounts maintained. If a separate account is 
maintained with

[[Page 523]]

respect to an employee's contributions and all income, expenses, gains, 
and losses attributable thereto, the accrued benefit determined under 
this subparagraph as of any applicable date is the balance of such 
account as of such date.
    (2) Separate accounts not maintained. If a separate account is not 
maintained with respect to an employee's contributions and the income, 
expenses, gains, and losses attributable thereto, the accrued benefit 
determined under this subparagraph is the employee's total accrued 
benefit determined under the plan multiplied by a fraction--
    (i) The numerator of which is the total amount of the employee's 
contributions under the plan less withdrawals, and
    (ii) The denominator of which is the sum of (A) the amount described 
in paragraph (b)(2)(i) of this section, and (B) the total contributions 
made under the plan by the employer on behalf of the employee less 
withdrawals.

For purposes of this subparagraph, contributions include all amounts 
which are contributed to the plan even if such amounts are used to 
provide ancillary benefits, such as incidental life insurance, health 
insurance, or death benefits, and withdrawals include only amounts 
distributed to the employee and do not reflect the cost of any death 
benefits under the plan.
    (c) Accrued benefit derived from mandatory employee contributions to 
a defined benefit plan--(1) General rule. In the case of a defined 
benefit plan (as defined in section 414(j)) the accrued benefit derived 
from contributions made by an employee under the plan as of any 
applicable date is an annual benefit, in the form of a single life 
annuity (without ancillary benefits) commencing at normal retirement 
age, equal to the amount of the employee's accumulated contributions 
(determined under paragraph (c)(3) of this section) multiplied by the 
appropriate conversion factor (determined under paragraph (c)(2) of this 
section). Paragraph (e) of this section provides rules for actuarial 
adjustments where the benefit is to be determined in a form other than 
the form described in this paragraph.
    (2) Appropriate conversion factor. For purposes of this paragraph, 
the term ``appropriate conversion factor'' means the factor necessary to 
convert an amount equal to the accumulated contributions to a single 
life annuity (without ancillary benefits) commencing at normal 
retirement age and shall be 10 percent for a normal retirement age of 65 
years. For other normal retirement ages the appropriate conversion 
factor shall be the factor as determined by the Commissioner.
    (3) Accumulated contributions. For purposes of section 411(c) and 
this section, the term ``accumulated contributions'' means the total 
of--
    (i) All mandatory contributions made by the employee (determined 
under paragraph (c)(4) of this section),
    (ii) Interest (if any) on such contributions, computed at the rate 
provided by the plan to the end of the last plan year to which section 
411(a)(2) does not apply (by reason of the applicable effective date), 
and
    (iii) Interest on the sum of the amounts determined under paragraphs 
(c)(3)(i) and (ii) of this section compounded annually at the rate of 5 
percent per annum from the beginning of the first plan year to which 
section 411(a)(2) applies (by reason of the applicable effective date) 
to the date on which the employee would attain normal retirement age.

For example, if under section 1017 of the Employee Retirement Income 
Security Act of 1974, section 411(a)(2) of the Code applies for plan 
years beginning after December 31, 1975, and for plan years beginning 
before 1975, the plan provided for 3 percent interest on employee 
contributions, an employee's accumulated contributions would be computed 
by crediting interest at the rate provided by the plan (3 percent) for 
plan years beginning before 1976 and by crediting interest at the rate 
of 5 percent (or another rate prescribed under section 411(c)(2)(D)) 
thereafter. Section 1017 of the Employee Retirement Income Security Act 
of 1974 and Sec. 1.411(a)-2 provide the effective dates for the 
application of section 411(a)(2).
    (4) Mandatory contributions. For purposes of section 411(c) and this 
section the term ``mandatory contributions'' means amounts contributed 
to the plan by the employee which are required as a condition of his 
employment, as a

[[Page 524]]

condition of his participation in the plan, or as a condition of 
obtaining benefits (or additional benefits) under the plan attributable 
to employer contributions. For example, if the benefit derived from 
employer contributions depends upon a specified level of employee 
contributions, employee contributions up to that level would be treated 
as mandatory contributions. Mandatory contributions, otherwise 
satisfying the requirements of this subparagraph, include amounts 
contributed to the plan which are used to provide ancillary benefits 
such as incidental life insurance, health insurance, or death benefits.
    (d) Limitation on accrued benefit. The accrued benefit derived from 
mandatory employee contributions under a defined benefit plan 
(determined under paragraph (c) of this section) shall not exceed the 
greater of--
    (1) The accrued benefit of the employee under the plan, or
    (2) The accrued benefit derived from employee contributions 
determined without regard to any interest under section 411(c)(2)(C) 
(ii) and (iii) and under paragraphs (c)(3) (ii) and (iii) of this 
section.
    (e) Actuarial adjustments for defined benefit plans--(1) Accrued 
benefit. In the case of a defined benefit plan (as defined in section 
414(j)) if an employee's accrued benefit is to be determined as an 
amount other than an annual benefit commencing at normal retirement age, 
such benefit (determined under section 411(c)(1) and paragraph (a) of 
this section) shall be the actuarial equivalent of such benefit, as 
determined by the Commissioner.
    (2) Accrued benefit derived from employee contributions. In the case 
of a defined benefit plan (as defined in section 414(j) if the accrued 
benefit derived from mandatory contributions made by an employee is to 
be determined with respect to a benefit other than an annual benefit in 
the form of a single life annuity (without ancillary benefits) 
commencing at normal retirement age, such benefit shall be the actuarial 
equivalent of such benefit (determined under section 411(c)(2)(B) and 
paragraph (c) of this section) as determined by the Commissioner.
    (f) Suspension of benefits, etc.--(1) Suspensions. No adjustment to 
an accrued benefit is required on account of any suspension of benefits 
if such suspension is permitted under section 203(a)(3)(B) of the 
Employee Retirement Income Security Act of 1974 (88 Stat. 855) (Code 
section 411(a)(3)(B)).
    (2) Employment after retirement. No actuarial adjustment to an 
accrued benefit is required on account of employment after normal 
retirement age. For example, if a plan with a normal retirement age of 
65 provides a benefit of $400 a month payable at age 65 the same $400 
benefit (with no upward adjustment) could be paid to an employee who 
retires at age 68.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42338, Aug. 23, 1977]
Sec. 1.411(d)-1  Coordination of vesting and discrimination 
          requirements. [Reserved]



Sec. 1.411(d)-2  Termination or partial termination; discontinuance of contributions.

    (a) General rule--(1) Required nonforfeitability. A plan is not a 
qualified plan (and a trust forming a part of such plan is not a 
qualified trust) unless the plan provides that--
    (i) Upon the termination or partial termination of the plan, or
    (ii) In addition, in the case of a plan to which section 412 
(relating to minimum funding standards) does not apply, upon the 
complete discontinuance of contributions under the plan,

the rights of each affected employee to benefits accrued to the date of 
such termination or partial termination (or, in the case of a plan to 
which section 412 does not apply, discontinuance), to the extent funded, 
or the rights of each employee to the amounts credited to his account at 
such time, are nonforfeitable (within the meaning of Sec. 1.411(a)-4.
    (2) Required allocation. (i) A plan is not a qualified plan (and a 
trust forming a part of such plan is not a qualified trust) unless the 
plan provides for the allocation of any previously unallocated funds to 
the employes covered by the plan upon the termination or partial 
termination of the plan (or, in the case of a plan to which section

[[Page 525]]

412 does not apply, upon the complete discontinuance of contributions 
under the plan). Such provision may be incorporated in the plan at its 
inception or by an amendment made prior to the termination or partial 
termination of the plan for the discontinuance of contributions 
thereunder. In the case of a defined contribution plan under which 
unallocated forfeitures are held in a suspense account in order to 
satisfy the requirements of section 415, this subdivision shall not 
require such plan to provide for allocations from the suspense account 
to the extent that such allocations would result in annual additions to 
participants' accounts in excess of amounts permitted under section 415 
for the year for which such allocations would be made.
    (ii) Any provision for the allocation of unallocated funds which is 
found by the Secretary of Labor or the Pension Benefit Guaranty 
Corporation (whichever is appropriate) to satisfy the requirements of 
section 4044 or section 403(d)(1) of the Employee Retirement Income 
Security Act of 1974 is acceptable if it specifies the method to be used 
and does not conflict with the provisions of section 401(a)(4) of the 
Internal Revenue Code of 1954 and the regulations thereunder. Any 
allocation of funds required by paragraph (1), (2), (3), or (4)(A) of 
section 4044(a) of such Act shall be deemed not to result in 
discrimination prohibited by section 401(a)(4) of the Code (see, 
however, paragraph (e) of this section). Notwithstanding the preceding 
sentence, in the case of a plan which establishes subclasses or 
categories pursuant to section 4044(b)(6) of such Act, the allocation of 
funds by the use of such subclasses or categories shall not be deemed 
not to result in discrimination prohibited by the Code. The allocation 
of unallocated funds may be in cash or in the form of other benefits 
provided under the plan. However, the allocation of the funds 
contributed by the employer among the employees need not necessarily 
benefit all the employees covered by the plan.
    (iii) Paragraphs (a)(2) (i) and (ii) of this section do not require 
the allocation of amounts to the account of any employee if such amounts 
are not required to be used to satisfy the liabilities with respect to 
employees and their beneficiaries under the plan (see section 
401(a)(2)).
    (b) Partial termination--(1) General rule. Whether or not a partial 
termination of a qualified plan occurs (and the time of such event) 
shall be determined by the Commissioner with regard to all the facts and 
circumstances in a particular case. Such facts and circumstances 
include: the exclusion, by reason of a plan amendment or severance by 
the employer, of a group of employees who have previously been covered 
by the plan; and plan amendments which adversely affect the rights of 
employees to vest in benefits under the plan.
    (2) Special rule. If a defined benefit plan ceases or decreases 
future benefit accruals under the plan, a partial termination shall be 
deemed to occur if, as a result of such cessation or decrease, a 
potential reversion to the employer, or employers, maintaining the plan 
(determined as of the date such cessation or decrease is adopted) is 
created or increased. If no such reversion is created or increased, a 
partial termination shall be deemed not to occur by reason of such 
cessation or decrease. However, the Commissioner may determine that a 
partial termination of such a plan occurs pursuant to subparagraph (1) 
of this paragraph for reasons other than such cessation or decrease.
    (3) Effect of partial termination. If a termination of a qualified 
plan occurs, the provisions of section 411(d)(3) apply only to the part 
of the plan that is terminated.
    (c) Termination--(1) Application. This paragraph applies to a plan 
other than a plan described in section 411(e)(1) (relating to 
governmental, certain church plans, etc.).
    (2) Plans subject to termination insurance. For purposes of this 
section, a plan to which title IV of the Employee Retirement Income 
Security Act of 1974 applies is considered terminated on a particular 
date if, as of that date--
    (i) The plan is voluntarily terminated by the plan administrator 
under section 4041 of the Employee Retirement Income Security Act of 
1974, or
    (ii) The Pension Benefit Guaranty Corporation terminates the plan 
under

[[Page 526]]

section 4042 of the Employee Retirement Income Security Act of 1974.

For purposes of this subparagraph, the particular date of termination 
shall be the date of termination determined under section 4048 of such 
Act.
    (3) Other plans. In the case of a plan not described in paragraph 
(c)(2) of this section, a plan is considered terminated on a particular 
date if, as of that date, the plan is voluntarily terminated by the 
employer, or employers, maintaining the plan.
    (d) Complete discontinuance--(1) General rule. For purposes of this 
section, a complete discontiuance of contributions under the plan is 
contrasted with a suspension of contributions under the plan which is 
merely a temporary cessation of contributions by the employer. A 
complete discontinuance of contributions may occur although some amounts 
are contributed by the employer under the plan if such amounts are not 
substantial enough to reflect the intent on the part of the employer to 
continue to maintain the plan. The determination of whether a complete 
discontinuance of contributions under the plan has occurred will be made 
with regard to all the facts and circumstances in the particular case, 
and without regard to the amount of any contributions made under the 
plan by employees. Among the factors to be considered in determining 
whether a suspension constitutes a discontinuance are:
    (i) Whether the employer may merely be calling an actual 
discontinuance of contributions a suspension of such contributions in 
order to avoid the requirement of full vesting as in the case of a 
discontinuance, or for any other reason;
    (ii) Whether contributions are recurring and substantial; and
    (iii) Whether there is any reasonable probability that the lack of 
contributions will continue indefinitely.
    (2) Time of discontinuance. In any case in which a suspension of a 
profit-sharing plan maintained by a single employer is considered a 
discontinuance, the discontinuance becomes effective not later than the 
last day of the taxable year of the employer following the last taxable 
year of such employer for which a substantial contribution was made 
under the profit-sharing plan. In the case of a profit-sharing plan 
maintained by more than one employer, the discontinuance becomes 
effective not later than the last day of the plan year following the 
plan year within which any employer made a substantial contribution 
under the plan.
    (e) Contributions or benefits which remain forfeitable. Under 
section 411 (d) (2) and (3), section 411(a) and this section do not 
apply to plan benefits which may not be provided for designated 
employees in the event of early termination of the plan under provisions 
of the plan adopted pursuant to regulations prescribed by the Secretary 
or his delegate to preclude the discrimination prohibited by section 
401(a)(4). Accordingly, in such a case, plan benefits may be required to 
be reallocated without regard to this section. See Sec. 1.401-4(c).

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42339, Aug. 23, 1977]



Sec. 1.411(d)-3  Other special rules.

    (a) Class year plans--(1) General rule. Under section 411(d)(4), the 
requirements of section 411(a)(2) for a class year plan shall be deemed 
to be satisfied if such plan provides that each employee's rights to or 
derived from employer contributions on his behalf for any plan year are 
nonforfeitable no later than the end of the 5th plan year following the 
plan year for which such contributions were made. For purposes of 
section 411 and the regulations thereunder, the term ``class year plan'' 
means a profit-sharing, stock bonus, or money purchase plan which 
provides that the nonforfeitable rights of employees to or derived from 
employer contributions are determined separately for each plan year. 
``See Sec. 1.411(d)-5 for rules that apply to class year plans for 
contributions made for plan years beginning after October 22, 1986.''
    (2) Other rules--(i) Prohibited forfeiture on withdrawals. In the 
case of a class year plan, section 401(a)(19) and the regulations 
thereunder shall be applied separately to each plan year.
    (ii) Distribution rules. The rules of Sec. 1.411(a)-7(d) apply to a 
class year plan. For example, under the rule in Sec. 1.411(a)-
7(d)(2)(ii)(D), a class year plan would be permitted to limit the time 
of

[[Page 527]]

repayment to a 5-year period beginning on the date of withdrawal, or 
under the rule in Sec. 1.411(a)-7(d)(2)(iii), a class year plan would 
restore the amount of the forfeited account balance in the event of 
repayment. For purposes of applying subparagraphs (2) and (3) of 
Sec. 1.411(a)-7(d), relating to withdrawal of mandatory contributions, a 
withdrawal of employee contributions shall be treated as a withdrawal of 
such contributions on a plan year by plan year basis in succeeding order 
of time. Any repayments shall be treated as being on account of plan 
years in succeeding order of time. For purposes of applying any rule of 
such paragraph (e.g., paragraph (d)(2)(ii)(C)) the term ``one-year break 
in service'' means any plan year in which under subparagraph (1) of this 
paragraph a class year plan may forfeit an employee's rights.
    (iii) Computation of years for withdrawals. In applying the 
requirement of paragraph (a)(1) of this section that rights must be 
nonforfeitable no later than the end of the fifth plan year following 
the plan year for which contributions are made, any plan year for which 
there has been a withdrawal of contributions and no repayment of such 
contributions (determined as of the last day of the plan year) is not 
required to count toward the five years. For example, assume that 
contributions are made for A in 1981 to a calendar year plan. Under the 
general rule of paragraph (a)(1) of this section, the contributions must 
be nonforfeitable on December 31, 1986. If in 1982, A withdraws the 
contributions for 1981, and repays these contributions in 1984, 1982 and 
1983 are not required to be counted toward the five years because at the 
end of each year there is a withdrawal and no repayment of such 
withdrawal. Accordingly, the plan must provide that A's interest in the 
contribution for 1981 will be vested on December 31, 1988.
    (b) Prohibition against accrued benefit decrease. Under section 
411(d)(6) a plan is not a qualified plan (and a trust forming a part of 
such plan is not a qualified trust) if a plan amendment decreases the 
accrued benefit of any plan participant, unless the plan amendment 
satisfies the requirements of section 412(c)(8) (relating to certain 
retroactive amendments) and the regulations thereunder. For purposes of 
determining whether or not any participant's accrued benefit is 
decreased, all the provisions of a plan affecting directly or indirectly 
the computation of accrued benefits which are amended with the same 
adoption and effective dates shall be treated as one plan amendment. 
Plan provisions indirectly affecting accrued benefits include, for 
example, provisions relating to years of service and breaks in service 
for determining benefit accrual, and to actuarial factors for 
determining optional or early retirement benefits.
    (c) Rules applicable to section 414(k) plan. For special rules 
applicable to defined benefit plans which provide a benefit derived from 
employer contributions which is based partly on a participant's separate 
account, see section 414(k) and the regulations thereunder.

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42340, Aug. 23, 1977, as amended by T.D. 8038, 50 FR 
29375, July 19,1985; T.D. 8219, 53 FR 31854, Aug. 22, 1988; 53 FR 48534, 
Dec. 1, 1988]



Sec. 1.411(d)-4  Section 411(d)(6) protected benefits.

    Q-1: What are ``section 411(d)(6) protected benefits''?
    A-1: (a) In general. The term ``section 411(d)(6) protected 
benefit'' includes any benefit that is described in one or more of the 
following categories--
    (1) Benefits described in section 411(d)(6)(A),
    (2) Early retirement benefits and retirement-type subsidies 
described in section 411(d)(6)(B)(i), including qualified social 
security supplements as defined in Sec. 1.401(a)(4)-12, and
    (3) Optional forms of benefit described in section 411(d)(6)(B)(ii).

Such benefits, to the extent they have accrued, are subject to the 
protection of section 411(d)(6) and, where applicable, the definitely 
determinable requirement of section 401(a) (including section 
401(a)(25)) and cannot, therefore, be reduced, eliminated, or made 
subject to employer discretion except to the extent permitted by 
regulations.
    (b) Optional forms of benefit--(1) In general. An ``optional form of 
benefit'' is a distribution form with respect to

[[Page 528]]

an employee's benefit (described in paragraph (a)(1) and/or (a)(2) of 
this Q&A-1) that is available under the plan and is identical with 
respect to all features relating to the distribution form, including the 
payment schedule, timing, commencement, medium of distribution (e.g., in 
cash or in-kind), the portion of the benefit to which such distribution 
features apply and the election rights with respect to such optional 
forms. To the extent there are any differences in such features, the 
plan provides separate optional forms of benefit. Differences in amounts 
of benefits, methods of calculation, or values of distribution forms do 
not result in optional forms of benefit for purposes of this rule. 
However, such amounts, methods of calculation, or values may be 
protected benefits within section 411(d)(6)(A) and/or section 
411(d)(6)(B)(i). See Sec. 1.401(a)-4 for further discussion and examples 
relating to optional forms of benefits. See Sec. 1.401(a)(4)-4(d) for 
the definition of an optional form of benefit for plan years beginning 
on or after January 1, 1994 (or January 1, 1996, in the case of plans 
maintained by organizations exempt from income taxation under section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans)).
    (2) Examples. The following examples illustrate the meaning of the 
term ``optional form of benefit.'' Other issues, such as the requirement 
that the optional forms satisfy section 401(a)(4), are not addressed in 
these examples and no inferences are intended with respect to such 
requirements. Assume that the distribution forms, including those not 
described in these examples, provided under the plan in each of the 
following examples are identical in all respects not described.

    Example 1. A plan permits each participant to receive his benefit 
under the plan as a single sum distribution; a level monthly 
distribution schedule over 15 years; a single life annuity; a joint and 
50 percent survivor annuity; a joint and 75 percent survivor annuity; a 
joint and 50 percent survivor annuity with a benefit increase for the 
participant if the beneficiary dies before a specified date; and joint 
and 50 percent survivor annuity with a 10 year certain feature. Each of 
these benefit distribution options is an optional form of benefit 
(without regard to whether the values of these options are actuarially 
equivalent).
    Example 2. A plan permits each participant to receive his benefit 
under the plan as a single life annuity commencing at termination from 
employment; a joint and 50 percent survivor annuity commencing at 
termination from employment; a single sum distribution that is 
actuarially equivalent to the single life annuity determined by using a 
specified interest rate (X percent) for the employees of division A; and 
a single sum distributions that is actuarially equivalent to the single 
life annuity determined by using an interst rate that is 80 percent of X 
percent for employees of Division B. This plan provides three optional 
forms of benefit. While the interest rates used to determine the single 
sum distributions available to the employees of Divisions A and the 
employees of Division B respectively differ, this difference does not 
result in two single sum optional forms of benefit.
    Example 3. A plan permits each participant who is employed by 
division A to receive his benefit in a single sum distribution payable 
upon termination from employment and each participant who is employed by 
division B in a single sum distribution payable upon termination from 
employment on or after the attainment of age 50. This plan provides two 
single sum optional forms of benefit.
    Example 4. A plan permits each participant to receive his benefit in 
a single life annuity that commences in the month after the 
participant's termination from employment or in a single life annuity 
that commences upon the completion of five consecutive one year breaks 
in service. These are two optional forms of benefit.
    Example 5. A profit-sharing plan permits each participant who is 
employed by division A to receive an in-service distribution upon the 
satisfaction of objective criteria set forth in the plan designed to 
determine whether the participant has a heavy and immediate financial 
need, and each participant who is employed by division B to receive an 
in-service distribution upon the satisfaction of objective criteria set 
forth in the plan designed to determine whether the participant has a 
heavy and immediate financial need attributable to extraordinary medical 
expenses. These in-service distribution options are two optional forms 
of benefits.
    Example 6. A profit-sharing plan permits each participant who is 
employed by division A to receive an in-service distribution up to 
$5,000 and each participant who is employed by division B to receive an 
in-service distribution of up to his total benefit. These in-service 
distribution options differ as to the portion of the accrued benefit 
that may be distributed in a particular form and are, therefore, two 
optional forms of benefit.
    Example 7. A profit-sharing plan provides for a single sum 
distribution on termination

[[Page 529]]

of employment. The plan is amended in 1991 to eliminate the single sum 
optional form of benefit with respect to benefits accrued after the date 
of amendment. This single sum optional form of benefit continues to be a 
single optional form of benefit although, over time, the percentage of 
various employees' accrued benefits that are potentially payable under 
this single sum may vary because the form is only available with respect 
to benefits accrued up to and including the date of the amendment.
    Example 8. A profit-sharing plan permits each participant to receive 
a single sum distribution of his benefit in cash or in the form of a 
specified class of employer stock. This plan provides two single sum 
distribution optinal forms of benefit.
    Example 9. A stock bonus plan permits each participant to receive a 
single sum distribution of his benefit in cash or in the form of the 
property in which such participant's benefit was invested prior to the 
distribution. This plan's single sum distribution option provides two 
optional forms of benefit.
    Example 10. A defined benefit plan provides for an early retirement 
benefit payable upon termination of employment after attainment of age 
55 and either after ten years of service or, if earlier, upon plan 
termination to employees of Division A and provides for an identical 
early retirement benefit payable on the same terms with the exception of 
payment on plan termination to employees of Division B. The plan 
provides for two optional forms of benefit.
    Example 11. A profit-sharing plan provides for loans secured by an 
employee's account balance. In the event of default on such a loan, 
there is an execution on such account balances. Such execution is a 
distribution of the employee's accrued benefits under the plan. A 
distribution of an accrued benefit contingent on default under a plan 
loan secured by such accrued benefits is an optional form of benefit 
under the plan.

    (c) Plan terms--(1) General rule. Generally, benefits described in 
section 411(d)(6)(A), early retirement benefits, retirement-type 
subsidies, and optional forms of benefit are section 411(d)(6) protected 
benefits only if they are provided under the terms of a plan. However, 
if an employer establishes a pattern of repeated plan amendments 
providing for similar benefits in similar situations for substantially 
consecutive, limited periods of time, such benefits will be treated as 
provided under the terms of the plan, without regard to the limited 
periods of time, to the extent necessary to carry out the purposes of 
section 411(d)(6) and, where applicable, the definitely determinable 
requirement of section 401(a), including section 401(a)(25). A pattern 
of repeated plan amendments providing that a particular optional form of 
benefit is available to certain named employees for a limited period of 
time is within the scope of this rule and may result in such optional 
form of benefit being treated as provided under the terms of the plan to 
all employees covered under the plan without regard to the limited 
period of time and the limited group of named employees.
    (2) Effective date. The provisions of paragraph (c)(1)of this Q&A-1 
are effective as of July 11, 1988. Thus, patterns or repeated plan 
amendments adopted and effective before July 11, 1988 will be 
disregarded in determining whether such amendments have created an 
ongoing optional form of benefit under the plan.
    (d) Benefits that are not section 411(d)(6) protected benefits. The 
following benefits are examples of items that are not section 411(d)(6) 
protected benefits:
    (1) Ancillary life insurance protection;
    (2) Accident or health insurance benefits;
    (3) Social security supplements described in section 411(a)(9), 
except qualified social security supplements as defined in 
Sec. 1.401(a)(4)-12;
    (4) The availability of loans (other than the distribution of an 
employee's accrued benefit upon default under a loan);
    (5) The right to make after-tax employee contributions or elective 
deferrals described in section 402(g)(3);
    (6) The right to direct investments;
    (7) The right to a particular form of investment (e.g., investment 
in employer stock or securities or investment in certain types of 
securities, commercial paper, or other investment media);
    (8) The allocation dates for contributions, forfeitures, and 
earnings, the time for making contributions (but not the conditions for 
receiving an allocation of contributions or forfeitures for a plan year 
after such conditions have been satisfied), and the valuation dates for 
account balances;
    (9) Administrative procedures for distributing benefits, such as 
provisions

[[Page 530]]

relating to the particular dates on which notices are given and by which 
elections must be made; and
    (10) Rights that derive from administrative and operational 
provisions, such as mechanical procedures for allocating investment 
experience among accounts in defined contribution plans.
    Q-2: To what extent may section 411(d)(6) protected benefits under a 
plan be reduced or eliminated?
    A-2: (a) Reduction or elimination of section 411(d)(6) protected 
benefits--(1) In general. A plan may not be amended to eliminate or 
reduce a section 411(d)(6) protected benefit that has already accrued, 
except as provided in sections 412(c)(8) and 4281, and in paragraph (b) 
of this Q&A-2. This is generally the case even if such elimination or 
reduction is contingent upon the employee's consent. However, a plan may 
be amended to eliminate or reduce section 411(d)(6) protected benefits 
with respect to benefits not yet accrued as of the later of the 
amendment's adoption date or effective date without violating section 
411(d)(6).
    (2) Selection of optional forms of benefit--(i) General rule. A plan 
may treat a participant as receiving his entire nonforfeitable accrued 
benefit under the plan if the participant receives his benefit in an 
optional form of benefit in an amount determined under the plan that is 
at least the actuarial equivalent of the employee's nonforfeitable 
accrued benefit payable at normal retirement age under the plan. This is 
true even though the participant could have elected to receive an 
optional form of benefit with a greater actuarial value than the value 
of the optional form received, such as an optional form including 
retirement-type subsidies, and without regard to whether such other, 
more valuable optional form could have commenced immediately or could 
have become available only upon the employee's future satisfaction of 
specified eligibility conditions.
    (ii) Election of an optional form. Except as provided in paragraph 
(a)(2)(iii) of this Q&A-2, a plan does not violate section 411(d)(6) 
merely because an employee's election to receive a portion of his 
nonforfeitable accrued benefit in one optional form of benefit precludes 
the employee from receiving that portion of his benefit in another 
optional form of benefit. Such employee retains all 411(d)(6) protected 
rights with respect to the entire portion of such employee's 
nonforfeitable accrued benefit for which no distribution election was 
made. For purposes of this rule, an elective transfer of an otherwise 
distributable benefit is treated as the selection of an optional form of 
benefit. See Q&A-3 of this section.
    (iii) Buy-back rule. Notwithstanding paragraph (a)(2)(ii) of this 
Q&A-2, an employee who received a distribution of his nonforfeitable 
benefit from a plan that is required to provide a repayment opportunity 
to such employee if he returns to service within the applicable period 
pursuant to the requirements of section 411(a)(7) and who, upon 
subsequent reemployment, repays the full amount of such distribution in 
accordance with section 411(a)(7)(C) must be reinstated in the full 
array of section 411(d)(6) protected benefits that existed with respect 
to such benefit prior to distribution.
    (iv) Examples. The rules in this paragraph (a)(2) can be illustrated 
by the following examples:

    Example 1. Defined benefit plan X provides, among its optional forms 
of benefit, for a subsidized early retirement benefit payable in the 
form of an annuity and available to employees who terminate from 
employment on or after their 55th birthdays. In addition plan X provides 
for a single sum distribution available on termination from employment 
or termination of the plan. The single sum distribution is determined on 
the basis of the present value of the accrued normal retirement benefit 
and does not take the early retirement subsidy into account. Plan X is 
terminated December 31, 1991. Employees U, age 47, V, age 55, and W, age 
47, all continue in the service of the employer. Employees X, age 47, Y, 
age 55 and Z, age 47, terminate from employment with the employer during 
1991. Employees U and V elect to take the single sum optional form of 
distribution at the time of plan termination. Employees X and Y elect to 
take the single sum distribution on termination from employment with the 
employer. The elimination of the subsidized early retirement benefit 
with respect to employees U, V, X and Y does not result in a violation 
of section 411(d)(6). This is the result even though employees U and X 
had not yet satisfied the conditions for the subsidized early retirement 
benefit. Because employees W and Z have not selected an optional form of 
benefit, they continue to have

[[Page 531]]

a 411(d)(6) protected right to the full array of section 411(d)(6) 
protected benefits provided under the plan, including the single sum 
distribution form and the subsidized early retirement benefit.
    Example 2. A partially vested employee receives a single sum 
distribution of the present value of his entire nonforfeitable benefit 
on account of separation from service under a defined benefit plan 
providing for a repayment provision. Upon reemployment with the employer 
such employee makes repayment in the required amount in accordance with 
section 411(a)(7). Such employee may, upon subsequent termination of 
employment, elect to take such repaid benefits in any optional form 
provided under the plan as of the time of the employee's initial 
separation from service. If the plan was amended prior to such 
repayment, to eliminate the single sum optional form of benefit with 
respect to benefits accrued after the date of the amendment, such 
participant has a 411(d)(6) protected right to take distribution of the 
repaid benefit in the form of a single sum distribution.

    (3) Certain transactions--(i) Plan mergers and benefit transfers. 
The prohibition against the reduction or elimination of section 
411(d)(6) protected benefits already accrued applies to plan mergers, 
spinoffs, transfers, and transactions amending or having the effect of 
amending a plan or plans to transfer plan benefits. Thus, for example, 
if plan A, a profit-sharing plan that provides for distribution of plan 
benefits in annual installments over ten or twenty years, is merged with 
plan B, a profit-sharing plan that provides for distribution of plan 
benefits in annual installments over life expectancy at time of 
retirement, the merged plan must retain the ten or twenty year 
installment option for participants with respect to benefits already 
accrued under plan A as of the merger and the installments over life 
expectancy for participants with benefits already accrued under plan B. 
Similarly, for example, if an employee's benefit under a defined 
contribution plan is transferred to another defined contribution plan 
(whether or not of the same employer), the optional forms of benefit 
available with respect to the employee's benefit accrued under the 
transferor plan may not be eliminated or reduced except as otherwise 
permitted under this regulation. See Q&A-3 of this section with respect 
to the transfer of benefits between and among defined benefit and 
defined contribution plans.
    (ii) Annuity contracts--(A) General rule. The protection provided by 
section 411(d)(6) may not be avoided by the use of annuity contracts. 
Thus, section 411(d)(6) protected benefits already accrued may not be 
eliminated or reduced merely because a plan uses annuity contracts to 
provide such benefits, without regard to whether the plan, a 
participant, or a beneficiary of a participant holds the contract or 
whether such annuity contracts are purchased as a result of the 
termination of the plan. However, to the extent that an annuity contract 
constitutes payment of benefits in a particular optional form elected by 
the participant, the plan does not violate section 411(d)(6) merely 
because it provides that other optional forms are no longer available 
with respect to such participant. See paragraph (a)(2) of this Q&A-2.
    (B) Examples. The provisions of this paragraph (a)(3)(ii) can be 
illustrated by the following examples:

    Example 1. A profit-sharing plan that is being terminated satisfies 
section 411(d)(6) only if the plan makes available to participants 
annuity contracts that provide for all section 411(d)(6) protected 
benefits under the plan that may not otherwise be reduced or eliminated 
pursuant to this Q&A-2. Thus, if such a plan provided for a single sum 
distribution upon attainment of early retirement age, and a provision 
for payment in the form of 10 equal annual installments, the plan would 
satisfy section 411(d)(6) only if the participants had the opportunity 
to elect to have their benefits provided under an annuity contract that 
provided for the same single sum distribution upon the attainment of the 
participant's early retirement age and the same 10 year installment 
optional form of benefit.
    Example 2. A defined benefit plan permits each participant who 
separates from service on or after age 62 to receive a qualified joint 
and survivor annuity or a single life annuity commencing 45 days after 
termination from employment. For a participant who separates from 
service before age 62, payments under these optional forms of benefit 
commence 45 days after the participant's 62nd birthday. Under the plan, 
a participant is to elect among these optional forms of benefit during 
the 90-day period preceding the annuity starting date. However, during 
such period, a participant may defer both benefit commencement and the 
election of a particular benefit form to any later date, subject to 
section 401(a)(9). In January 1990, the

[[Page 532]]

employer decides to terminate the plan as of July 1, 1990. The plan will 
fail to satisfy section 411(d)(6) unless the optional forms of benefit 
provided under the plan are preserved under the annuity contract 
purchased on plan termination. Thus, such annuity contract must provide 
a participant the same optional benefit commencement rights that the 
plan provided. In addition, such contract must provide the same election 
rights with respect to such benefit options. This is the case even if, 
for example, in conjunction with the termination, the employer amended 
the plan to permit participants to elect a qualified joint and survivor 
annuity, single life annuity, or single sum distribution commencing on 
July 1, 1990.

    (4) Benefits payable to a spouse or beneficiary. Section 411(d)(6) 
protected benefits may not be eliminated merely because they are payable 
with respect to a spouse or other beneficiary.
    (b) Section 411(d)(6) protected benefits that may be eliminated or 
reduced only as permitted by the Commissioner--(1) In general. The 
Commissioner may, consistent with the provisions of this section, 
provide for the elimination or reduction of section 411(d)(6) protected 
benefits that have already accrued only to the extent that such 
elimination or reduction does not result in the loss to plan 
participants of either a valuable right or an employer-subsidized 
optional form of benefit where a similar optional form of benefit with a 
comparable subsidy is not provided or to the extent such elimination or 
reduction is necessary to permit compliance with other requirements of 
section 401(a) (e.g., sections 401(a)(4), 401(a)(9) and 415). The 
Commissioner may exercise this authority only through the publication of 
revenue rulings, notices, and other documents of general applicability.
    (2) Section 411(d)(6) protected benefits that may be eliminated or 
reduced. The elimination or reduction of certain section 411(d)(6) 
protected benefits that have already accrued in the following situations 
does not violate section 411(d)(6). The rules with respect to 
permissible eliminations and reductions provided in this paragraph 
(b)(2) are effective January 30, 1986. These exceptions create no 
inference with respect to whether any other applicable requirements are 
satisfied (for example, requirements imposed by section 401(a)(9) and 
section 401(a)(14)).
    (i) Change in statutory requirement. A plan may be amended to 
eliminate or reduce a section 411(d)(6) protected benefit if the 
following three requirements are met: the amendment constitutes timely 
compliance with a change in law affecting plan qualification; there is 
an exercise of section 7805(b) relief by the Commissioner; and the 
elimination or reduction is made only to the extent necessary to enable 
the plan to continue to satisfy the requirements for qualified plans. In 
general, the elimination or reduction of a section 411(d)(6) protected 
benefit will not be treated as necessary if it is possible through other 
modifications to the plan (e.g., by expanding the availability of an 
optional form of benefit to additional employees) to satisfy the 
applicable qualification requirement.
    (ii) Joint and survivor annuity. A plan that provides a range of 
three or more actuarially equivalent joint and survivor annuity options 
may be amended to eliminate any of such options, other than the options 
with the largest and smallest optional survivor payment percentages, 
even if the effect of such amendment is to change which of the options 
is the qualified joint and survivor annuity under section 417. Thus, for 
example, if a money purchase pension plan provides three joint and 
survivor annuity options with survivor payments of 50%, 75% and 100%, 
respectively, that are uniform with respect to age and are actuarially 
equivalent, then the employer may eliminate the option with the 75% 
survivor payment, even if this option had been the qualified joint and 
survivor annuity under the plan.
    (iii) In-kind distributions after plan termination--(A) In general. 
If a plan includes an optional form of benefit under which benefits are 
distributed in specified property (other than cash), such optional form 
of benefit may be modified for distributions after plan termination by 
substituting cash for the specified property to the extent that, on plan 
termination, an employee has the opportunity to receive the optional 
form of benefit in the specified property. This exception is not 
available, however, if the employer that maintains the terminating plan 
also maintains another plan that provides

[[Page 533]]

an optional form of benefit in the specified property.
    (B) Example. This paragraph (b)(2)(iii) can be illustrated by the 
following example:

    Example. An employer maintains a stock bonus plan under which a 
participant, upon termination from employment, may elect to receive his 
benefits in a single sum distribution in employer stock. This is the 
only plan maintained by the employer under which distributions in 
employer stock are available. The employer decides to terminate the 
stock bonus plan. If such plan is amended to make available a single sum 
distribution in employer stock on plan termination, the plan will not 
fail section 411(d)(6) solely because the optional form of benefit 
providing a single sum distribution in employer stock on termination 
from employment is modified to provide that such distribution is 
available only in cash.

    (iv) Coordination with diversification requirement. A tax credit 
employee stock ownership plan (as defined in section 409(a)) or an 
employee stock ownership plan (as defined in section 4975(e)(7)) may be 
amended to provide that a distribution is not available in employer 
securities to the extent that an employee elects to diversify benefits 
pursuant to section 401(a)(28).
    (v) Involuntary distributions. A plan may be amended to provide for 
the involuntary distribution of an employee's benefit to the extent such 
involuntary distribution is permitted under sections 411(a)(11) and 
417(e). Thus, for example, an involuntary distribution provision may be 
amended to require that an employee who terminates from employment with 
the employer receive a single sum distribution in the event that the 
present value of the employee's benefit is not more than $1,750, by 
substituting $3,500 for $1,750, without violating section 411(d)(6). In 
addition, for example, the employer may amend the plan to reduce the 
involuntary distribution threshold from $3,500 to any lower amount and 
to eliminate the involuntary single sum option for employees with 
benefits between $3,500 and such lower amount without violating section 
411(d)(6). This rule does not permit a plan provision permitting 
employer discretion with respect to optional forms of benefit for 
employees the present value of whose benefit is less than $3,500.
    (vi) Distribution exception for certain profit-sharing plans--(A) In 
general. If a defined contribution plan that is not subject to section 
412 and does not provide for an annuity option is terminated, the plan 
may be amended to provide for the distribution of a participant's 
accrued benefit upon termination in a single sum optional form without 
the participant's consent. The preceding sentence does not apply if the 
employer maintains any other defined contribution plan (other than an 
employee stock ownership plan as defined in section 4975(e)(7)).
    (B) Examples. The provisions of this paragraph (b)(2)(vi) can be 
illustrated by the following examples:

    Example 1. Employer X maintains a defined contribution plan that is 
not subject to section 412. The plan provides for distribution in the 
form of equal installments over five years or equal installments over 
twenty years. X maintains no other defined contribution plans. X 
terminates its defined contribution plan after amending the plan to 
provide for the distribution of all participants' accrued benefits in 
the form of single sum distributions, without obtaining participant 
consent. Pursuant to the rule in this paragraph (b)(2)(iv), this 
amendment does not violate the requirements of section 411(d)(6).
    Example 2. Corporations X and Y are members of controlled group 
employer XY. Both X and Y maintain defined contribution plans. X's plan, 
which is not subject to section 412, covers only employees working for 
X. Y's plan, which is subject to section 412, covers only employees 
working for Y. X terminates its defined contribution plan. Because 
employer XY maintains another defined contribution plan, plan X may not 
provide for the distribution of participants' accrued benefits upon 
termination without a participants' consent.

    (vii) Distribution of benefits on default of loans. Notwithstanding 
that the distribution of benefits arising from an execution on an 
account balance used to secure a loan on which there has been a default 
is an optional form of benefit, a plan may be amended to eliminate or 
change a provision for loans, even if such loans would be secured by an 
employee's account balance.
    (viii) Provisions for transfer of benefits between and among defined 
contribution plans and defined benefit plans of the employer. A plan may 
be amended to

[[Page 534]]

eliminate provisions permitting the transfer of benefits between and 
among defined contribution plans and defined benefit plans of the 
employer.
    (ix) De minimis change in the timing of an optional form of benefit. 
A plan may be amended to modify an optional form of benefit by changing 
the timing of the availability of such optional form if, after the 
change, the optional form is available at a time that is within two 
months of the time such optional form was available before the 
amendment. To the extent the optional form of benefit is available prior 
to termination of employment, six months may be substituted for two 
months in the prior sentence. Thus, for example, a plan that makes in-
service distributions available to employees once every month may be 
amended to make such in-service distributions available only once every 
six months. This exception to section 411(d)(6) relates only to the 
timing of the availability of the optional form of benefit. Other 
aspects of an optional form of benefit may not be modified and the value 
of such optional form may not be reduced merely because of an amendment 
permitted by this exception.
    (x) Amendment of hardship distribution standards. A qualified cash 
or deferred arrangement that permits hardship distributions under 
Sec. 1.401(k)-1(d)(2) may be amended to specify or modify 
nondiscriminatory and objective standards for determining the existence 
of an immediate and heavy financial need, the amount necessary to meet 
the need, or other conditions relating to eligibility to receive a 
hardship distribution. For example, a plan will not be treated as 
violating section 411(d)(6) merely because it is amended to specify or 
modify the resources an employee must exhaust to qualify for a hardship 
distribution or to require employees to provide additional statements or 
representations to establish the existence of a hardship. A qualified 
cash or deferred arrangement may also be amended to eliminate hardship 
distributions. The provisions of this paragraph also apply to profit-
sharing or stock bonus plans that permit hardship distributions, whether 
or not the hardship distributions are limited to those described in 
Sec. 1.401(k)-1(d)(2).
    (xi) Section 415 benefit limitations. Accrued benefits under a plan 
as of the first day of the first limitation year beginning after 
December 31, 1986, that exceed the benefit limitations under section 415 
(b) or (e), effective on the first day of the plan's first limitation 
year beginning after December 31, 1986, because of a change in the terms 
and conditions of the plan made after May 5, 1986, or the establishment 
of a plan after that date, may be reduced to the level permitted under 
section 415 (b) or (e).
    (c) Serial amendments. A plan amendment that modifies an optional 
form of benefit with respect to benefits already accrued will be 
evaluated in light of previous amendments. Thus, for example, amendments 
made at different times that, when taken together, constitute the 
elimination or reduction of a valuable right, will be treated as the 
impermissible elimination or reduction of an optional form of benefit 
even though each amendment, considered alone, may otherwise be 
permissible.
    (d) ESOP and stock bonus plan exception--(1) In general. Subject to 
the limitations in paragraph (d)(2) of this Q&A-5, a tax credit employee 
stock ownership plan (as defined in section 409(a)) or an employee stock 
ownership plan (as defined in section 4975(e)(7)) will not be treated as 
violating the requirements of section 411(d)(6) merely because of any of 
the circumstances described in paragraphs (d)(1)(i) through (d)(1)(iv) 
of this Q&A-2. In addition, a stock bonus plan that is not an employee 
stock ownership plan will not be treated as violating the requirements 
of section 411(d)(6) merely because of any of the circumstances 
described in paragraphs (d)(1)(ii) and (d)(1)(iv) of this Q&A-2.
    (i) Single sum or installment optional forms of benefit. The 
employer eliminates, or retains the discretion to eliminate, with 
respect to all participants, a single sum optional form or installment 
optional form with respect to benefits that are subject to section 
409(h)(1)(B), provided such elimination or retention of discretion is 
consistent with the distribution and payment requirements otherwise 
applicable to such plans (e.g., those required by section 409).

[[Page 535]]

    (ii) Employer becomes substantially employee-owned. The employer 
eliminates, or retains the discretion to eliminate, with respect to all 
participants, in cases in which the employer becomes substantially 
employee-owned, optional forms of benefit by substituting cash 
distributions for distributions in the form of employer stock with 
respect to benefits subject to section 409(h). This exception is 
available only if the employer otherwise meets the requirements of 
section 409(h)(2) with respect to restrictions on the ownership of 
outstanding employer stock.
    (iii) Employer securities become readily tradable. The employer 
eliminates, or retains the discretion to eliminate, with respect to all 
participants, in cases in which the employer securities become readily 
tradable, optional forms of benefit by substituting distributions in the 
form of employer securities for distributions in cash with respect to 
benefits that are subject to section 409(h).
    (iv) Employer securities cease to be readily tradable or certain 
sales. The employer eliminates, or retains the discretion to eliminate, 
with respect to all participants, optional forms of benefit by 
substituting cash distributions for distributions in the form of 
employer stock with respect to benefits that are subject to section 
409(h) in the following circumstances:
    (A) The employer stock ceases to be readily tradable;
    (B) The employer stock continues to be readily tradable but there is 
a sale of substantially all of the stock of the employer or a sale of 
substantially all of the assets of a trade or business of the employer 
and, in either situation, the purchasing employer continues to maintain 
the plan.

In the situation described in paragraph (d)(1)(iv)(B) of this Q&A-2, the 
employer may also substitute distributions in the purchasing employer's 
stock for distributions in the form of employer stock of the predecessor 
employer.
    (2) Limitations on ESOP and stock bonus plan exceptions--(i) 
Nondiscrimination requirement. Plan amendments and the retention and 
exercise of discretion permitted under the exceptions in paragraph 
(d)(1) must meet the nondiscrimination requirements of section 
401(a)(4).
    (ii) ESOP investment requirement. Except as provided in paragraph 
(d)(2)(iii) of this Q&A-2, benefits provided by employee stock ownership 
plans will not be eligible for the exceptions in paragraph (d)(1) of 
this Q&A-2 unless the benefits have been held in a tax credit employee 
stock ownership plan (as defined in section 409(a)) or an employee stock 
ownership plan (as defined in section 4975(e)(7)) subject to section 
409(h) for the five-year period prior to the exercise of employer 
discretion or any amendment affecting such benefits and permitted under 
paragraph (d)(1) of this Q&A-2. For purposes of the preceding sentence, 
if benefits held under an employee stock ownership plan are transferred 
to a plan that is an employee stock ownership plan at the time of the 
transfer, then the consecutive periods under the transferor and 
transferee employee stock ownership plans may be aggregated for purposes 
of meeting the five-year requirement. If the benefits are held in an 
employer stock ownership plan throughout the entire period of their 
existence, and such total period of existence is less than five years, 
then such lesser period may be substituted for the five year 
requirement.
    (3) Effective date. The provisions of this paragraph (d) are 
effective beginning with the first day of the first plan year commencing 
on or after January 1, 1989. Prior to this effective date the reduction 
or elimination of a section 411(d)(6) protected benefit by a tax credit 
employee stock ownership plan (as defined in section 409(a)) or an 
employee stock ownership plan (as defined in section 4975(e)(7)) will 
not be treated as violating the requirements of section 411(d)(6) if 
such reduction or elimination reflects a reasonable interpretation of 
the statutory language of section 411(d)(6)(C).
    (4) Additional exceptions and requirements. The Commissioner may, in 
revenue rulings, notices or other documents of general applicability, 
prescribe such additional rules and exceptions, consistent with the 
purposes of this section, as may be necessary or appropriate.

[[Page 536]]

    Q-3  Does the transfer of benefits between and among defined benefit 
plans and defined contribution plans (or similar transactions) violate 
the requirements of section 411(d)(6)?
    A-3  (a) Transfers and similar transactions--(1) General rule. 
Section 411(d)(6) protected benefits may not be eliminated by reason of 
transfer or any transaction amending or having the effect of amending a 
plan or plans to transfer benefits. Thus, for example, except as 
otherwise provided in this section, an employer who maintains a money 
purchase pension plan that provides for a single sum optional form of 
benefit may not establish another plan that does not provide for this 
optional form of benefit and transfer participants' account balances to 
such new plan.
    (2) Defined benefit feature and separate account feature. The 
defined benefit feature of an employee's benefit under a defined benefit 
plan and the separate account feature of an employee's benefit under a 
defined contribution plan are section 411(d)(6) protected benefits. 
Thus, for example, the elimination of the defined benefit feature of an 
employee's benefit under a defined benefit plan, through transfer of 
benefits from a defined benefit plan to a defined contribution plan or 
plans, will violate section 411(d)(6).
    (3) Waiver prohibition. In general, an employee may not elect to 
waive section 411(d)(6) protected benefits. Thus, for example, the 
elimination of the defined benefit feature of an employee's benefit 
under a defined plan by reason of a transfer of such benefits to a 
defined contribution plan pursuant to an employee election, at a time 
when the benefit is not distributable to the employee, violates section 
411(d)(6).
    (b) Elective transfers of benefits between plans--(1) Elective 
transfer. A transfer of a participant's benefits between qualified plans 
that results in the elimination or reduction of section 411(d)(6) 
protected benefits does not violate section 411(d)(6) if the transfer 
meets the requirements of section 411(l) and the following requirements 
are met:
    (i) Voluntary election--(A) Participant election. The plan from 
which the benefits are transferred must provide that the transfer is 
conditioned upon a voluntary, fully informed election by the participant 
to transfer such participant's benefit to another plan maintained by the 
employer.
    (B) Benefit retention alternative. In making the voluntary election 
provided for in paragraph (b)(1)(i)(A) of this Q&A-3, the participant 
must have an alternative that retains such employee's section 411(d)(6) 
protected benefits (including all optional forms of benefit) under the 
plan. Thus, either of the following two requirements must be met:
    (1) If the plan from which the benefits are transferred is 
terminating, the terminating plan must satisfy the requirements of 
section 401(a)(2) and section 411(d)(6), or
    (2) If the plan from which the benefits are transferred is not 
terminating, the participant must be given the option of leaving his 
benefit in the ongoing plan to the extent required by section 411(a)(11) 
and section 417(e);
    (C) Spousal election. If sections 401(a)(11) and 417 apply to the 
plan from which the benefits are transferred, the spousal consent 
requirements of such section must be met with respect to the transfer of 
benefits.
    (D) Notice requirement. The notice requirements under section 417, 
requiring a written explanation with respect to an election not to 
receive benefits in the form of a qualified joint and survivor annuity, 
must be met with respect to the participant and spousal transfer 
election.
    (ii) Distributability of benefits. The participant whose benefits 
are transferred must be eligible, under the terms of the plan from which 
the benefits are transferred, to receive an immediate distribution from 
such plan under provisions in the plan not inconsistent with section 
401(a).
    (iii) Amount of benefit transferred. The amount of the benefit 
transferred must equal the entire nonforfeitable accrued benefit under 
the plan of the participant whose benefit is being transferred, 
calculated to be at least the greater of the single sum distribution 
provided for under the plan for which the participant is eligible (if 
any) or the present

[[Page 537]]

value of the participant's accrued payable at normal retirement age and 
calculated by using an interest rate subject to the restrictions of 
section 417(e) and subject to the overall limitations imposed by section 
415.
    (iv) Benefit under the transferee plan. The participant must be 
fully vested in the transferred benefit in the transferee plan. In a 
transfer from a defined contribution plan to a defined benefit plan, the 
defined benefit plan must provide a minimum benefit, for each 
participant whose benefits are transferred, equal to the benefit, 
expressed as an annuity payable at normal retirement age, that is 
derived solely on the basis of the amount transferred with respect to 
such participant.
    (2) Status of elective transfer as distribution. The transfer of 
benefits pursuant to the elective transfer rules of this paragraph (b) 
generally is to be treated as a distribution of a participant's accrued 
benefit under a plan for purposes of section 401(a). For example, a 
transfer option is an optional form of benefit under section 411(d)(6); 
the availability of such optional form of benefit is subject to the 
nondiscrimination requirements of section 401(a)(4); and the transfer is 
treated as a distribution subject to the cash-out rules in section 
411(a)(7), the early termination requirements of section 411(d)(2) and 
the requirements of sections 401(a)(11) and 417. However, the transfer 
is not treated as a distribution for purposes of the minimum 
distribution requirements of section 401(a)(9).
    (3) Effective date. The rules with respect to transfers are 
generally effective January 30, 1986. However, with respect to transfers 
from defined benefit plans to defined contribution plans and from 
defined contribution plans to defined benefit plans, the rules of this 
paragraph (b) are effective beginning August 10, 1988. On or after 
January 30, 1986, and prior to August 10, 1988 the transitional rules 
provided in paragraph (c) of this Q&A-3 are effective with respect to 
such transfers.
    (c) Transitional rule. Prior to the effective date in paragraph 
(b)(3) of this Q&A-3, the transfer of benefits from a defined 
contribution plan to a defined benefit plan, or a defined benefit plan 
to a defined contribution plan, does not violate section 411(d)(6) 
solely by reason of the elimination of section 411(d)(6) protected 
benefits, if the benefits transferred were distributable under the plan 
or could have been distributable under section 401(a) and either of the 
following requirements are met:
    (1) Transfer exception. The transfer satisfies the rules in 
paragraph (b) of this Q&A-3, or
    (2) Direct transfer. The plan to which the benefits are to be 
transferred provides, or is amended to provide, for all section 
411(d)(6) protected benefits provided under the transferor plan with 
respect to the benefits transferred (with the sole exception of the 
defined benefit feature of the benefit under a defined benefit plan and 
the defined contribution feature under a defined contribution plan); the 
transferred benefits are treated as held under a transferee plan for 
purposes of the requirements of sections 401(a)(11) and 417; the 
transferred amounts meet the requirements of section 414(l) with respect 
to the transfer of assets and liabilities, and the benefits transferred 
do not exceed the limitations imposed by section 415. Amendments 
required for purposes of satisfying this rule must be made by the date 
for making any amendments required for purposes of conforming the plan 
to the requirements of section 410(b) as amended by TRA '86. However, 
plans covered by this rule must comply with these requirements in 
operation and any required amendments must be retroactive to the date on 
which the benefits were transferred.
    (d) Examples. If a transfer complying with the elective transfer 
rules of paragraph (b) of this Q&A-3 is made from a defined benefit plan 
to a profit-sharing plan that does not provide for a life annuity 
distribution form, the profit-sharing plan to which the benefits are 
transferred would not be required to provide for a qualified joint and 
survivor annuity with respect to the transferred benefits. If the same 
transfer is made under the direct transfer transitional rule of 
paragraph (c)(2) of this Q&A-3, the defined contribution plan is treated 
as a transferee plan with respect to the transferred benefits for 
purposes of the requirements of section

[[Page 538]]

401(a)(11) and section 417. Thus, for example, if such benefits are 
transferred without spousal consent to a profit-sharing plan that did 
not previously provide for a life annuity distribution form, such plan 
would be required to provide for a qualified joint and survivor annuity 
for the participants whose benefits were transferred with respect to the 
transferred benefits.
    Q-4: May a plan provide that the employer may, through the exercise 
of discretion, deny a participant a section 411(d)(6) protected benefit 
for which the participant is otherwise eligible?
    A-4: (a) In general. Except as provided in paragraph (d) of Q&A-2 of 
this section with respect to certain employee stock ownership plans, a 
plan that permits the employer, either directly or indirectly, through 
the exercise of discretion, to deny a participant a section 411(d)(6) 
protected benefit provided under the plan for which the participant is 
otherwise eligible (but for the employer's exercise of discretion) 
violates the requirements of section 411(d)(6). A plan provision that 
makes a section 411(d)(6) protected benefit available only to those 
employees as the employer may designate is within the scope of this 
prohibition. Thus, for example, a plan provision under which only 
employees who are designated by the employer are eligible to receive a 
subsidized early retirement benefit constitutes an impermissible 
provision under section 411(d)(6). In addition, a pension plan that 
permits employer discretion to deny the availability of a section 
411(d)(6) protected benefit violates the definitely determinable 
requirement of section 401(a), including section 401(a)(25). See 
Sec. 1.401-1(b)(1)(i). This is the result even if the plan specifically 
limits the employer's discretion to choosing among section 411(d)(6) 
protected benefits, including optional forms of benefit, that are 
actuarially equivalent. In addition, the provisions of sections 
411(a)(11) and 417(e) that allow a plan to make involuntary 
distributions of certain amounts are not excepted from this limitation 
on employer discretion. Thus, for example, a plan may not permit 
employer discretion with respect to whether benefits will be distributed 
involuntarily in the event that the present value of the employee's 
benefit is not more than $3,500 within the meaning of sections 
411(a)(11) and 417(e). (An exception is provided for such provisions 
with respect to the nondiscrimination requirements of section 401(a)(4). 
See Sec. 1.401(a)-4 Q&A-4.)
    (b) Exception for administrative discretion. A plan may permit 
limited discretion with respect to the ministerial or mechanical 
administration of the plan, including the application of objective plan 
criteria specifically set forth in the plan. Such plan provisions do not 
violate the requirements of section 411(d)(6) or the definitely 
determinable requirement of section 401(a), including section 
401(a)(25). For example, these requirements are not violated by the 
following provisions that permit limited administrative discretion:
    (1) Commencement of benefit payments as soon as administratively 
feasible after a stated date or event;
    (2) Employer authority to determine whether objective criteria 
specified in the plan (e.g., objective criteria designed to identify 
those employees with a heavy and immediate financial need or objective 
criteria designed to determine whether an employee has a permanent and 
total disability) have been satisfied; and
    (3) Employer authority to determine, pursuant to specific guidelines 
set forth in the plan, whether the participant or spouse is dead or 
cannot be located.
    Q-5: When will the exercise of discretion by some person or persons, 
other than the employer, be treated as employer discretion?
    A-5: For purposes of applying the rules of this section and 
Sec. 1.401(a)-4, the term ``employer'' includes plan administrator, 
fiduciary, trustee, actuary, independent third party, and other persons. 
Thus, if a plan permits any person, other than the participant (and 
other than the participant's spouse), the discretion to deny or limit 
the availability of a section 411(d)(6) protected benefit for which the 
employee is otherwise eligible under the plan (but for the exercise of 
such discretion), such plan violates the requirements of sections 
401(a), including section 411(d)(6) and, where applicable, the 
definitely determinable requirement of

[[Page 539]]

section 401(a), including section 401(a)(25).
    Q-6: May a plan condition the availability of a section 411(d)(6) 
protected benefit on the satisfaction of objective conditions that are 
specifically set forth in the plan?
    A-6: (a) Certain objective conditions permissible--(1) In general. 
The availability of a section 411(d)(6) protected benefit may be limited 
to employees who satisfy certain objective conditions provided the 
conditions are ascertainable, clearly set forth in the plan and not 
subject to the employer's discretion except to the extent reasonably 
necessary to determine whether the objective conditions have been met. 
Also, the availability of the section 411(d)(6) protected benefit must 
meet the nondiscrimination requirements of section 401(a)(4). See 
Sec. 1.401(a)-4.
    (2) Examples of permissible conditions. The following examples 
illustrate of permissible objective conditions: a plan may deny a single 
sum distribution form to employees for whom life insurance is not 
available at standard rates as defined under the terms of the plan at 
the time the single sum distribution would otherwise be payable; a plan 
may provide that a single sum distribution is available only if the 
employee is in extreme financial need as defined under the terms of the 
plan at the time the single sum distribution would otherwise be payable; 
a plan my condition the availability of a single sum distribution on the 
execution of a covenant not to compete, provided that objective 
conditions with respect to the terms of such covenant and the employees 
and circumstances requiring execution of such covenant are set forth in 
the plan.
    (b) Conditions based on factors within employer's discretion 
generally impermissible. A plan may not limit the availability of 
section 411(d)(6) protected benefits permitted under the plan on 
objective conditions that are within the employer's discretion. For 
example, the availability of section 411(d)(6) protected benefits in a 
plan may not be conditioned on a determination with respect to the level 
of the plan's funded status, because the amount of plan funding is 
within the employer's discretion. However, for example, although 
conditions based on the plan's funded status are impermissible, a plan 
may limit the availability of a section 411(d)(6) protected benefit 
(e.g., a single sum distribution) in an objective manner, such as the 
following:
    (1) Single sum distributions of $25,000 and less are available 
without limit; and
    (2) Single sum distributions in excess of $25,000 are available for 
a year only to the extent that the total amount of such single sum 
distributions for the year is not greater than $5,000,000; and
    (3) An objective and nondiscriminatory method for determining which 
particular single sum distributions will not be available during a year 
in order for the $5,000,000 limit to be satisfied is set forth in the 
plan.
    Q-7: May a plan be amended to add employer discretion or conditions 
restricting the availability of a section 411(d)(6) protected benefit?
    A-7: No. The addition of employer discretion or objective conditions 
with respect to a section 411(d)(6) protected benefit that has already 
accrued violates section 411(d)(6). Also, the addition of conditions 
(whether or not objective) or any change to existing conditions with 
respect to section 411(d)(6) protected benefits that results in any 
further restriction violates section 411(d)(6). However, the addition of 
objective conditions to a section 411(d)(6) protected benefit may be 
made with respect to benefits accrued after the later of the adoption or 
effective date of the amendment. In addition, objective conditions may 
be imposed on section 411(d)(6) protected benefits accrued as of the 
date of an amendment where permitted under the transitional rules of 
Sec. 1.401(a)-4 Q&A-5 and Q&A-8 of this section. Finally, objective 
conditions may be imposed on section 411(d)(6) protected benefits to the 
extent permitted by the permissible benefit cutback provisions of Q&A-2 
of this section.
    Q-8: If a plan contains an impermissible employer discretion 
provision with respect to a section 411(d)(6) protected benefit, what 
acceptable alternative exist for amending the plan without violating the 
requirements of section 411(d)(6)?

[[Page 540]]

    A-8: (a) In general. The following rules apply for purposes of 
making necessary amendments to existing plans (as defined in Q&A-9 of 
this section) that contain discretion provisions with respect to the 
availability of section 411(d)(6) protected benefits that violate the 
requirements of section 401(a), including sections 401(a)(25) and 
411(d)(6), and this section. These transitional rules are provided under 
the authority of section 411(d)(6) and section 7805(b).
    (b) Transitional alternatives. If the availability of an optional 
forms of benefit, early or late retirement benefit, or retirement-type 
subsidy under an existing plan is conditioned on the exercise of 
employer discretion, the plan must be amended either to eliminate the 
optional form of benefit, early or late retirement benefit, or 
retirement-type subsidy to make such benefit available to all 
participants without limitation, or to apply objective and 
nondiscriminatory conditions to the availability of the optional form of 
benefit, early or later retirement benefit, or retirement-type subsidy. 
See paragraph (d) of this Q&A-8 for rules limiting the period during 
which section 411(d)(6) protected benefits may be eliminated or reduced 
under this paragraph.
    (c) Compliance and amendment date provisions--(1) Operational 
compliance requirement. On or before the applicable effective date for 
the plan (as determined under Q&A-9 of this section), the plan sponsor 
must select one of the alternatives permitted under paragraph (b) of the 
Q&A-8 with respect to each affected section 411(d)(6) protected benefit 
and the plan must be operated in accordance with this selection. This is 
an operational requirement and does not require a plan amendment prior 
to the period set forth in paragraph (c)(2) of this Q&A-8. There are no 
special reporting requirements under the Code or this section with 
respect to this selection.
    (2) Deferred amendment date. If paragraph (c)(1) of this Q&A-8 is 
satisfied, a plan amendment conforming the plan to the particular 
alternative selected under paragraph (b) of this Q&A-8 must be adopted 
within the time period permitted for amending plans in order to meet the 
requirements of section 410(b) as amended by TRA '86. The plan amendment 
to conform the plan to these regulations may be made at an earlier date. 
Such conforming amendment must be consistent with the sponsor's 
selection as reflected by plan practice during the period from the 
effective date to the date the amendment is adopted. Thus, for example, 
if any existing calendar year noncollectively bargained defined benefit 
plan has a single sum distribution option that is subject to employer 
discretion as of August 1, 1986, and such employer makes one or more 
single sum distributions available on or after January 1, 1989 and 
before the effective date by which plan amendment is required pursuant 
to this section, then such employer may not adopt a plan amendment 
eliminating the single sum distribution, but rather must adopt an 
amendment eliminating the discretion provision. Any objective conditions 
that are adopted as part of such amendment must not be inconsistent with 
the plan practice for the applicable period prior to the amendment. A 
conforming amendment under this paragraph (c)(2) must be made with 
respect to each section 411(d)(6) protected benefit for which such 
amendment is required and must be retroactive to the applicable 
effective date.
    (d) Limitation on transitional alternatives. The transitional 
alternatives permitting the elimination or reduction of section 
411(d)(6) protected benefits are only permissible until the applicable 
effective date for the plan (see Q&A-9 of this section). After the 
applicable effective date, any amendment (other than one permitted under 
paragraph (c)(2) of this Q&A-8) that eliminates or reduces a section 
411(d)(6) protected benefit or imposes new objective conditions on the 
availability of such benefit will fail to qualify for the exception to 
section 411(d)(6) provided in this Q&A-8. This is the case without 
regard to whether the section 411(d)(6) protected benefit is subject to 
employer discretion.
    Q-9: What are the applicable effective date rules for purposes of 
this section?
    A-9: (a) General effective date. Except as otherwise provided in 
this section, the provisions of this section are effective January 30, 
1986.

[[Page 541]]

    (b) New plans--(1) In general. Unless otherwise provided in 
paragraph (b)(2) of this Q&A-9, plans that are either adopted or made 
effective on or after August 1, 1986, are ``new plans''. With respect to 
such new plans, this section is effective August 1, 1986. This effective 
date is applicable to such plans whether or not they are collectively 
bargained.
    (2) Exception with respect to certain new plans. Plans that are new 
plans as defined in paragraph (b)(1) of this Q&A-9 under which the 
availability of a section 411(d)(6) protected benefit is subject to 
employer discretion; and that receive a favorable determination letter 
that covered such plan provisions with respect to an application 
submitted prior to July 11, 1988, will be treated as existing plans with 
respect to such section 411(d)(6) protected benefit for purposes of the 
transitional rules of this section. Thus, such plans are eligible for 
the compliance and amendment alternatives set forth in the transitional 
rule in Q&A-8 of this section.
    (c) Existing plans--(1) In general. Plans, including plans that are 
adoptions of master or prototype plans, that are both adopted and in 
effect prior to August 1, 1986, are ``existing plans'' for purposes of 
this section. In addition, a plan that is established after July 31, 
1986, but before January 1, 1989, as an initial adoption of a master or 
prototype plan for which a favorable opinion letter was issued by the 
Service after July 18, 1985 and before January 1, 1989, will be deemed 
to be an existing plan for purposes of this section. See sections 4.01 
and 4.02 of Rev. Proc. 84-23, 1984-1 C.B. 457, 459, for the definitions 
of master prototype plans. However, if such plan ceases to be covered 
under an opinion letter of the type described above, as a result of 
amendment of the plan or adoption of a new plan, prior to the first day 
of the first plan year beginning on or after January 1, 1989, then the 
effective date for such plan will be determined as though the plan were 
a new plan initially adopted as of the date of such amendment or 
adoption of a new plan. Finally, new plans described in paragraph (b)(2) 
of this Q&A-9 are treated as existing plans with respect to certain 
section 411(d)(6) protected benefits. Subject to the limitations in 
paragraph (c) of this Q&A-9, the effective dates set forth in paragraphs 
(c)(2), (c)(3), and (c)(4) of this Q&A-9 apply to these existing plans 
for purposes of this section:
    (2) Existing noncollectively bargained plans. With respect to 
existing plans other than collectively bargained plans this section is 
effective for the first day of the first plan year commencing on or 
after January 1, 1989.
    (3) Existing collectively bargained plans. With respect to existing 
collectively bargained plans this section is effective for the later of 
the first day of the first plan year commencing on or after January 1, 
1989, or the first day of the first plan year that the requirements of 
section 410(b) as amended by TRA '86 apply to such plan.
    (4) Existing master and prototype plans. With respect to existing 
plans that are adoptions of master or prototype plans the effective date 
will be the first day of the first plan year commencing on or after 
January 1, 1989.
    (d) Delayed effective date not applicable to new alternatives or 
conditions--(1) In general. The delayed effective dates in paragraphs 
(c)(2) and (c)(3) of this Q&A-9 for existing plans are only applicable 
with respect to a section 411(d)(6) protected benefit if both the 
section 411(d)(6) protected benefit and the condition providing employer 
discretion as to the availability of such benefit are both adopted and 
in effect prior to August 1, 1986. If the preceding sentence is not 
satisfied with respect to a particular section 411(d)(6) protected 
benefit, this section is effective with respect to such section 
411(d)(6) protected benefit as if the plan were a new plan.
    (2) Addition of discretion on or after January 30, 1986. The delayed 
effective dates in paragraphs (c)(2) and (c)(3) of this Q&A-9 are not 
available with respect to any section 411(d)(6) protected benefit if the 
section 411(d)(6) protected benefit was provided for in the plan prior 
to January 30, 1986, and the availability of such benefit was made 
subject to the exercise of employer discretion on or after January 30, 
1986. If the conditions set forth in this paragraph

[[Page 542]]

are not satisfied with respect to a particular section 411(d)(6) 
protected benefit, this section is effective with respect to such 
section 411(d)(6) protected benefit as if the plan were a new plan. A 
limited exception is provided with respect to existing plans that 
provided a particular section 411(d)(6) protected benefit prior to 
January 30, 1986, and then amended the plan after January 30, 1986, and 
before August 1, 1986, to add a provision for employer discretion with 
respect to the availability of such benefit. Such plans are required to 
have been amended retroactively by December 31, 1987, to remove such 
provision for employer discretion, and, if the benefit made subject to 
such discretion was subsequently eliminated, the plan is required to 
have been further amended, by the same date, to retroactively reinstate 
the benefit.
    (3) Exception for certain amendments covered by a favorable 
determination letter. If an amendment adding a section 411(d)(6) 
protected benefit subject to employer discretion was adopted or made 
effective after August 1, 1986, and the plan receives a favorable 
determination letter covering such provision with respect to an 
application for such letter made prior to July 11, 1988, then the 
effective date for purposes of amending such provision under the 
transitional rules is the applicable effective date determined under the 
rules with respect to existing plans.
    (e) Transitional rule effective date. The transitional rule provided 
in Q&A-8 of this section is effective January 30, 1986.

[53 FR 26058, July 11, 1988, as amended by T.D. 8360, 56 FR 47602, Sept. 
19, 1991; T.D. 8357, 56 FR 40549, Aug. 15, 1991; T.D. 8360, 57 FR 4721, 
Feb. 7, 1992; T.D. 8485, 58 FR 46828, Sept. 3, 1993; T.D. 8581, 59 FR 
66180, Dec. 23, 1994]



Sec. 1.411(d)-5  Class year plans; plan years beginning after October 22, 1986.

    (a) Plan years beginning prior to 1989. (1) The requirements of 
section 411(a)(2) shall be treated as satisfied in the case of a class-
year plan if such plan provides that 100 percent of each employee's 
right to or derived from the contributions of the employer on the 
employee's behalf with respect to any plan year is nonforfeitable not 
later than when such participant was performing services for the 
employer as of the close of each of 5 plan years (whether or not 
consecutive) after the plan year for which the contributions were made.
    (2) For purposes of paragraph (a)(1) of this section if--
    (i) Any contributions are made on behalf of a participant with 
respect to any plan year, and
    (ii) Before such participant meets the requirements of paragraph 
(a)(1) of this section, such participant was not performing services for 
the employer as of the close of each of any 5 consecutive plan years 
after such plan year, then the plan may provide that the participant 
forfeits any right to or derived from the contributions made with 
respect to such plan year.
    (3) This paragraph (a) applies to contributions made for plan years 
beginning after October 22, 1986.
    (b) Plan years beginning after 1988. (1) The special class year 
vesting rule in section 411(d)(4) was repealed by section 1113(b) of the 
Tax Reform Act of 1986 (1986 Act). The repeal is generally effective for 
plan years beginning after December 31, 1988. See section 1111(e) of the 
1986 Act for a special effective date rule applicable to certain plans 
maintained pursuant to collective bargaining agreements.
    (2)(i) This subparagraph (2) provides a special rule for class year 
plans that were in compliance with section 411(d)(4) immediately before 
the first plan year beginning after section 411(d)(4) is repealed. These 
plans are not required to retroactively compute years of service under 
the general section 411(a)(2) rules. Instead, a participant must receive 
a year of service for each such prior plan year if the employee was 
performing services on the last day of such year. Similarly, if the 
participant was not performing services on the last day of such years, 
the participant will be treated as if a one-year break- in-service 
occurred for such plan year. This subdivision (i) applies to plan years 
to which this section applies.
    (ii) In the case of a plan year to which Sec. 1.411(d)-3 applied, a 
class year plan must compute years of service and

[[Page 543]]

breaks in service in a manner consistent with the rules in this 
paragraph (b)(2)(i), giving appropriate regard to the statutory changes 
made to section 411(d)(4).

[T.D. 8219, 53 FR 31854, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988]



Sec. 1.411(d)-6T  Section 204(h) notice.

    Q-1: What are the requirements of section 204(h) of the Employee 
Retirement Income Security Act of 1974, as amended (ERISA)?
    A-1: (a) Requirements of section 204(h). Section 204(h) of ERISA 
generally requires written notice of an amendment to certain plans that 
provides for a significant reduction in the rate of future benefit 
accrual. Section 204(h) generally requires the notice to be provided to 
plan participants, alternate payees, and employee organizations. The 
plan administrator must provide the notice after adoption of the plan 
amendment and not less than 15 days before the effective date of the 
plan amendment.
    (b) Other notice requirements. Other provisions of law may require 
that certain parties be notified of a plan amendment. See, for example, 
sections 102 and 104 of ERISA, and the regulations thereunder, for the 
requirements relating to summary plan descriptions and summaries of 
material modifications.
    Q-2: To which plans does section 204(h) of ERISA apply?
    A-2: Section 204(h) of ERISA applies to defined benefit plans 
subject to part 2 of subtitle B of title I of ERISA and to individual 
account plans subject to such part 2 and to the funding standards of 
section 302 of ERISA. Accordingly, individual account plans that are not 
subject to the funding standards of section 302, such as profit-sharing 
and stock bonus plans, are not subject to section 204(h).
    Q-3: What is section 204(h) notice?
    A-3: Action 204(h) notice is notice that complies with section 
204(h) of ERISA and the rules in this section.
    Q-4: For which amendments is section 204(h) notice required?
    A-4: (a) In general. Section 204(h) notice is required for an 
amendment to a plan described in Q&A-2 of this section that provides for 
a significant reduction in the rate of future benefit accrual.
    (b) Delegation of authority to Commissioner. The Commissioner of 
Internal Revenue may provide through publication in the Internal Revenue 
Bulletin of revenue rulings, notices, or other documents (see 
Sec. 601.601(d)(2) of this chapter) that section 204(h) notice need not 
be provided for plan amendments otherwise described in paragraph (a) of 
this Q&A-4 that the Commissioner determines to be necessary or 
appropriate, as a result of changes in the law, to maintain compliance 
with the requirements of the Internal Revenue Code of 1986, as amended 
(Code) (including requirements for tax qualification), ERISA, or other 
applicable federal law.
    Q-5: What is an amendment that affects the rate of future benefit 
accrual for purposes of section 204(h) of ERISA?
    A-5: (a) In general--(1) Defined benefit plans. For purposes of 
section 204(h) of ERISA, an amendment to a defined benefit plan affects 
the rate of future benefit accrual only if it is reasonably expected to 
change the amount of the future annual benefit commencing at normal 
retirement age.
    (2) Individual account plans. For purposes of section 204(h), an 
amendment to an individual account plan affects the rate of future 
benefit accrual only if it is reasonably expected to change the amounts 
allocated in the future to participants' accounts. Changes in the 
investments or investment options under an individual account plan are 
not taken into account for this purpose.
    (b) Determination of rate of future benefit accrual. In accordance 
with paragraph (a) of this Q&A-5, the rate of future benefit accrual is 
determined without regard to optional forms of benefit (other than the 
annual benefit described in paragraph (a) of this Q&A-5), early 
retirement benefits, or retirement-type subsidies, within the meaning of 
such terms as used in section 411(d)(6) of the Code (section 204(g) of 
ERISA). The rate of future benefit accrual is also determined without 
regard to ancillary benefits and other rights or features as defined in 
Sec. 1.401(a)(4)-4(e).

[[Page 544]]

    (c) Examples. These examples illustrate the rules in this Q&A-5:

    Example 1. A plan is amended with respect to future benefit accruals 
to eliminate a right to commencement of a benefit prior to normal 
retirement age. Because the amendment does not affect the annual benefit 
commencing at normal retirement age, it does not reduce the rate of 
future benefit accrual for purposes of section 204(h).
    Example 2. A plan is amended to modify the assumptions used in 
converting an annuity form of distribution to a single sum form of 
distribution. The use of these modified assumptions results in a lower 
single sum. Because the amendment does not affect the annual benefit 
commencing at normal retirement age, it does not reduce the rate of 
future benefit accrual for purposes of section 204(h).

    Q-6: What plan provisions are taken into account in determining 
whether there has been a reduction in the rate of future benefit 
accrual?

    A-6: (a) Plan provisions taken into account. All plan provisions 
that may affect the rate of future benefit accrual of participants or 
alternate payees must be taken into account in determining whether an 
amendment provides for a significant reduction in the rate of future 
benefit accrual. Such provisions include, for example, the dollar amount 
or percentage of compensation on which benefit accruals are based; in 
the case of a plan using the permitted disparity under section 401(l) of 
the Code, the amount of disparity between the excess benefit percentage 
or excess contribution percentage and the base benefit percentage or 
base contribution percentage (all as defined in section 401(l)); the 
definition of service or compensation taken into account in determining 
an employee's benefit accrual; the method of determining average 
compensation for calculating benefit accruals; the definition of normal 
retirement age in a defined benefit plan; the exclusion of current 
participants from future participation; benefit offset provisions; 
minimum benefit provisions; the formula for determining the amount of 
contributions and forfeitures allocated to participants' accounts in an 
individual account plan; and the actuarial assumptions used to determine 
contributions under a target benefit plan (as defined in 
Sec. 1.401(a)(4)-8(b)(3)(i)).

    (b) Plan provisions not taken into account. Plan provisions that do 
not affect the rate of future benefit accrual of participants or 
alternate payees are not taken into account in determining whether there 
has been a reduction in the rate of future benefit accrual. For example, 
provisions such as vesting schedules or optional forms of benefit (other 
than the annual benefit described in Q&A-5(a) of this section) are not 
taken into account.
    (c) Examples. The following example illustrates the rules in this 
Q&A-6:

    Example. A defined benefit plan provides a normal retirement benefit 
equal to 50% of final average compensation times a fraction (not in 
excess of one), the numerator of which equals the number of years of 
participation in the plan and the denominator of which equals 20. A plan 
amendment that changes the numerator or denominator of that fraction 
must be taken into account in determining whether there has been a 
reduction in the rate of future benefit accrual.

    Q-7: What is the basic principle used in determining whether an 
amendment provides for a significant reduction in the rate of future 
benefit accrual for purposes of section 204(h) of ERISA?
    A-7: Whether an amendment provides for a significant reduction in 
the rate of future benefit accrual for purposes of section 204(h) of 
ERISA is determined based on reasonable expectations taking into account 
the relevant facts and circumstances at the time the amendment is 
adopted.
    Q-8: Are employees who have not yet become participants in a plan at 
the time an amendment to the plan is adopted taken into account for any 
purpose in applying section 204(h) of ERISA with respect to the 
amendment?
    A-8: No. Employees who have not yet become participants in a plan at 
the time an amendment to the plan is adopted are not taken into account 
for any purpose in applying section 204(h) of ERISA with respect to the 
amendment. Thus, if section 204(h) notice is required with respect to an 
amendment, the plan administrator need not provide section 204(h) notice 
to such employees.

[[Page 545]]

    Q-9: If section 204(h) notice is required with respect to an 
amendment, must such notice be provided to participants or alternate 
payees whose rate of future benefit accrual is not reduced by the 
amendment?
    A-9: (a) In general. A plan administrator need not provide section 
204(h) notice to any participant whose rate of future benefit accrual is 
reasonably expected not to be reduced by the amendment, nor to any 
alternate payee under an applicable qualified domestic relations order 
whose rate of future benefit accrual is reasonably expected not to be 
reduced by the amendment. A plan administrator need not provide section 
204(h) notice to an employee organization unless the employee 
organization represents a participant to whom section 204(h) notice is 
required to be provided.
    (b) Facts and circumstances test. Whether a participant or alternate 
payee is described in paragraph (a) of this Q&A-9 is determined based on 
all relevant facts and circumstances at the time the amendment is 
adopted.
    (c) Examples. The following examples illustrate the rules in this 
Q&A-9:

    Example 1. Plan A is amended to reduce significantly the rate of 
future benefit accrual of all current employees who are participants in 
the plan. It is reasonable to expect based on the facts and 
circumstances that the amendment will not reduce the rate of future 
benefit accrual of former employees who are currently receiving benefits 
or that of former employees who are entitled to vested benefits. 
Accordingly, the plan administrator is not required to provide section 
204(h) notice to such former employees.
    Example 2. Assume in Example 1 that Plan A also covers two groups of 
alternate payees. The alternate payees in the first group are entitled 
to a certain percentage or portion of the former spouse's accrued 
benefit, and for this purpose the accrued benefit is determined at the 
time the former spouse begins receiving retirement benefits under the 
plan. The alternate payees in the second group are entitled to a certain 
percentage or portion of the former spouse's accrued benefit, and for 
this purpose the accrued benefit was determined at the time the 
qualified domestic relations order was issued by the court. It is 
reasonable to expect that the benefits to be received by the second 
group of alternate payees will not be affected by any reduction in a 
former spouse's rate of future benefit accrual. Accordingly, the plan 
administrator is not required to provide section 204(h) notice to the 
alternate payees in the second group.
    Example 3. Plan B covers hourly employees and salaried employees. 
Plan B provides the same rate of benefit accrual for both groups. The 
employer amends Plan B to reduce significantly the rate of future 
benefit accrual of the salaried employees only. At that time, it is 
reasonable to expect that only a small percentage of hourly employees 
will become salaried in the future. Accordingly, the plan administrator 
is not required to provide section 204(h) notice to the participants who 
are currently hourly employees.
    Example 4. Plan C covers employees in Division M and employees in 
Division N. Plan C provides the same rate of benefit accrual for both 
groups. The employer amends Plan C to reduce significantly the rate of 
future benefit accrual of employees in Division M. At that time, it is 
reasonable to expect that in the future only a small percentage of 
employees in Division N will be transferred to Division M. Accordingly, 
the plan administrator is not required to provide section 204(h) notice 
to the participants who are employees in Division N.
    Example 5. Assume the same facts as in Example 4, except that at the 
time the amendment is adopted, it is expected that soon thereafter 
Division N will be merged into Division M in connection with a corporate 
reorganization (and the employees in Division N will become subject to 
the plan's amended benefit formula applicable to the employees in 
Division M). In this instance, the plan administrator must provide 
section 204(h) notice to the participants who are employees in Division 
M and to the participants who are employees in Division N.

    Q-10: Does a notice fail to comply with section 204(h) of ERISA if 
it contains a summary of the amendment and the effective date, without 
the text of the amendment itself?
    A-10: No, the notice does not fail to comply with section 204(h) of 
ERISA merely because the notice contains a summary of the amendment, 
rather than the text of the amendment, if the summary is written in a 
manner calculated to be understood by the average plan participant and 
contains the effective date. The summary need not explain how the 
individual benefit of each participant or alternate payee will be 
affected by the amendment.
    Q-11: How may section 204(h) notice be provided?
    A-11: A plan administrator may use any method reasonably calculated 
to ensure actual receipt of the section 204(h) notice. First class mail 
to the

[[Page 546]]

last known address of the party is an acceptable delivery method. 
Likewise, hand delivery is acceptable. Section 204(h) notice may be 
enclosed along with other notice provided by the employer or plan 
administrator.
    Q-12: If a plan administrator fails to provide section 204(h) notice 
to more than a de minimis percentage of participants and alternate 
payees to whom section 204(h) notice is required to be provided, will 
the plan administrator be considered to have complied with section 
204(h) of ERISA with respect to participants and alternate payees who 
were provided with timely section 204(h) notice?
    A-12: The plan administrator will be considered to have complied 
with section 204(h) of ERISA with respect to a participant to whom 
section 204(h) notice is required to be provided if the participant and 
any employee organization representing the participant were provided 
with timely section 204(h) notice. The plan administrator will be 
considered to have complied with section 204(h) with respect to an 
alternate payee to whom section 204(h) notice is required to be provided 
if the alternate payee was provided with timely section 204(h) notice. 
Accordingly, the amendment will become effective in accordance with its 
terms with respect to those participants and alternate payees.
    Q-13: Will a plan be considered to have complied with section 204(h) 
of ERISA if the plan administrator provides section 204(h) notice to all 
but a de minimis percentage of participants and alternate payees to whom 
section 204(h) notice must be provided?
    A-13: The plan will be considered to have complied with section 
204(h) of ERISA and the amendment will become effective in accordance 
with its terms with respect to all parties to whom section 204(h) notice 
was required to be provided (including those who did not receive notice 
prior to discovery of the omission), if the plan administrator--
    (a) Has made a good faith effort to comply with the requirements of 
section 204(h);
    (b) Has provided section 204(h) notice to each employee organization 
that represents any participant to whom section 204(h) notice is 
required to be provided;
    (c) Has failed to provide section 204(h) notice to no more than a de 
minimis percentage of participants and alternate payees to whom section 
204(h) notice is required to be provided; and
    (d) Provides section 204(h) notice to those participants and 
alternate payees promptly upon discovering the oversight.
    Q-14: How does section 204(h) of ERISA apply to a plan that is 
terminated in accordance with title IV of ERISA?
    A-14: (a) On and after termination date. Notwithstanding paragraph 
(b) of this Q&A-14 or any other provisions of this section, a plan that 
is terminated in accordance with title IV of ERISA is deemed to have 
satisfied section 204(h) of ERISA not later than the termination date 
(or date of termination, as applicable) established under section 4048 
of ERISA. Accordingly, section 204(h) would not require that any 
additional benefits accrue after such date.
    (b) Amendment effective before termination date. An amendment that 
is effective before the termination date (or date of termination, as 
applicable) established under section 4048 of ERISA is subject to 
section 204(h). Accordingly, if such amendment provides for a 
significant reduction in the rate of future benefit accrual, the plan 
administrator must provide section 204(h) notice (either separately or 
with or as part of the notice of intent to terminate) with respect to 
the amendment. However, if a plan is not amended to reduce significantly 
the rate of future benefit accrual before the termination date (for 
example, the plan continues existing benefit accruals until the 
termination date), section 204(h) notice is not required.
    Q-15: When does section 204(h) of ERISA become effective?
    A-15: (a) Statutory effective date. With respect to defined benefit 
plans, section 204(h) of ERISA generally applies to plan amendments 
adopted on or after January 1, 1986. With respect to individual account 
plans, section 204(h) applies to plan amendments adopted on or after 
October 22, 1986.

[[Page 547]]

    (b) Regulatory effective date. This section applies to amendments 
adopted on or after December 15, 1995, and amendments effective by their 
terms on or after January 2, 1996.

[T.D. 8631, 60 FR 64322, Dec. 15, 1995]



Sec. 1.412(b)-2  Amortization of experience gains in connection with certain group deferred annuity contracts.

    (a) Experience gain treatment. Dividends, rate credits, and credits 
for forfeitures arising in a plan described in paragraph (b) of this 
section are experience gains described in section 412(b)(3)(B)(ii) 
(relating to the amortization of experience gains).
    (b) Plan. A plan is described in this paragraph (b) if--
    (1) The plan is funded solely through a group deferred annuity 
contract,
    (2) The annual single premium required under the contract for the 
purchase of the benefits accruing during the plan year is treated as the 
normal cost of the plan for that year, and
    (3) The amount necessary to pay in equal annual installments, over 
the appropriate amortization period, an amount equal to the single 
premium necessary to provide all past service benefits not initially 
funded, together with interest thereon, is treated as the annual 
amortization amount determined under section 412(b)(2)(B) (i), (ii) or 
(iii).
    (c) Effective date. This section applies for the first plan year to 
which section 412 applies that begins after May 22, 1981.

[T.D. 7764, 46 FR 6923, Jan. 22, 1981]



Sec. 1.412(b)-5  Election of the alternative amortization method of funding.

    (a) Alternative amortization method in general. Section 1013(d) of 
the Employee Retirement Income Security Act of 1974 provides an 
alternative method which may be used by certain multiemployer plans (as 
defined in section 414(f)) which were in existence on January 1, 1974, 
for funding certain unfunded past service liability. The multiemployer 
plans which may elect to use this alternative method are those plans (1) 
under which, on January 1, 1974, contributions were based on a 
percentage of pay, (2) which use actuarial assumptions with respect to 
pay that are reasonably related to past and projected experience, and 
(3) which use rates of interest that are determined on the basis of 
reasonable acturial assumptions. The unfunded past service liability to 
which this method applies is that amount existing as of the date 12 
months after the date on which section 412 first applies to the plan. 
The alternative method allows the plan to fund this liability over a 
period of 40 plan years by charging the funding standard account with an 
equal annual percentage of the aggregate pay of all participants in the 
plan instead of the level dollar charges required under section 
412(b)(2)(B). Paragraphs (b), (c), (d) and (e) of this section contain 
procedural rules for electing this alternative method.
    (b) Election procedure. To elect the alternative amortization 
method, a multiemployer plan must attach a statement to the annual 
report required under section 6058(a) for the plan year for which the 
election is made, stating that the alternative method for funding 
unfunded past service liability is being adopted. Advance approval from 
the Internal Revenue Service is not required. The alternative method 
must be adopted on or before the last day prescribed for filing the 
annual report corresponding to the last plan year beginning before 
January 1, 1982.
    (c) Charges to which the alternative amortization method is 
applicable. Once elected, the alternative amortization method is 
applicable to the unfunded past service liability existing as of the 
date 12 months after the date on which section 412 first applies to the 
plan. This results in charges to the funding standard account which are 
in lieu of--
    (1) Charges required under clause (i) of section 412(b)(2)(B), and
    (2) Charges required under clause (iii) of section 412(b)(2)(B) if 
the plan amendments referred to in such clause result in a net increase 
in the unfunded past service liability existing as of the date 12 months 
after the date on which section 412 first applies to the plan. Such 
charges generally will arise only with respect to plan amendments 
adopted in the first plan year to which section 412 applies.


[[Page 548]]


If the election is made on an annual report corresponding to a plan year 
after the first plan year to which section 412 applies, recomputation of 
the contributions due in the prior years (to which section 412 applied) 
will be necessary.
    (d) Limitation. The sum of the charges described in this paragraph 
may not be less than the interest on the unfunded past service 
liabilities described in section 412(b)(2)(B) (i) and (iii), determined 
as of the date 12 months after the date on which section 412 first 
applies to the plan.
    (e) Reporting requirements. Each annual report required by section 
6058(a) and periodic report of the actuary required by section 6059 must 
include all additional information relevant to the use of the 
alternative amortization method as may be required by the applicable 
forms and the instructions for such forms.

[T.D. 7702, 45 FR 40113, June 13, 1980]



Sec. 1.412(c)(1)-1  Determinations to be made under funding method--terms defined.

    (a) Actuarial cost method and funding method. Section 3 (31) of the 
Employee Retirement Income Security Act of 1974 (``ERISA'') provides 
certain acceptable (and unacceptable) actuarial cost methods which may 
(or may not) be used by employee plans. The term ``funding method'' when 
used in section 412 has the same meaning as the term ``actuarial cost 
method'' in section 3 (31) of ERISA. For shortfall method for certain 
collectively bargained plans, see Sec. 1.412(c)(1)-2; for principles 
applicable to funding methods in general, see regulations under section 
412(c)(3).
    (b) Computations included in funding method. The funding method of a 
plan includes not only the overall funding method used by the plan but 
also each specific method of computation used in applying the overall 
method. However, the choice of which actuarial assumptions are 
appropriate to the overall method or to the specific method of 
computation is not a part of the funding method. For example, the 
decision to use or not to use a mortality factor in the funding method 
of a plan is not a part of such funding method. Similarly, the specific 
mortality rate determined to be applicable to a particular plan year is 
not part of the funding method. See section 412(c)(5) for the 
requirement of approval to change the funding method used by a plan.

[T.D. 7733, 45 FR 75202, Nov. 14, 1980]



Sec. 1.412(c)(1)-2  Shortfall method.

    (a) In general--(1) Shortfall method. The shortfall method is a 
funding method that adapts a plan's underlying funding method for 
purposes of section 412. As such, the use of the shortfall method is 
subject to section 412(c)(3). A plan described in paragraph (a)(2) of 
this section may elect to determine the charges to the funding standard 
account required by section 412(b) under the shortfall method. These 
charges are computed on the basis of an estimated number of units of 
service or production (for which a certain amount per unit is to be 
charged). The difference between the net amount charged under this 
method and the net amount that otherwise would have been charged under 
section 412 for the same period is a shortfall loss (gain) and is to be 
amortized over certain subsequent plan years.
    (2) Eligibility for use of shortfall. No plan may use the shortfall 
method unless--
    (i) The plan is a collectively bargained plan described in section 
413(a), and
    (ii) Contributions to the plan are made at a rate specified under 
the terms of a legally binding agreement applicable to the plan.

For purposes of this section, a plan maintained by a labor organization 
which is exempt from tax under section 501(c)(5) is treated as a 
collectively bargained plan and the governing rules of the organization 
(such as its constitution, bylaws, or other document that can be altered 
only through action of a convention of the organization) are treated as 
a collectively bargained agreement.
    (b) Computation and effect of net shortfall charge--(1) In general. 
The ``net shortfall charge'' to the funding standard account under the 
shortfall method is the product of (i) the estimated unit charge 
described in paragraph (c) of

[[Page 549]]

this section that applies for a particular plan year, multiplied by (ii) 
the actual number of base units (for example, units of service or 
production) which occurred during that plan year. When the shortfall 
method is used, the net shortfall charge is a substitute for the 
specific charges and credits to the funding standard account described 
in section 412 (b)(2) and (3)(B).
    (2) Example. Paragraph (b)(1) of this section may be illustrated by 
the following example:

    Example. A pension plan uses the calendar year as the plan year and 
the shortfall method. Its estimated unit charge applicable to 1980 is 80 
cents per hour of covered employment. During 1980, there were 125,000 
hours of covered employment. The net shortfall charge for the plan year 
is $100,000 (i.e., 125,000 x $.80), regardless of the amount which would 
be charged and credited to the funding standard account under section 
412 (b)(2) and (3)(B) had the shortfall method not applied. The funding 
standard account for 1980 will be separately credited for the amount 
considered contributed for the plan year under section 412 (b)(3)(A). 
The other items which may be credited, if applicable, are a waived 
funding deficiency and the alternative minimum funding standard credit 
adjustment under section 412(b)(3)(C) and (D) because these items are 
not credits under section 412(b)(3)(B).

    (3) Plans with more than one contract, contribution rate, employer, 
or benefit level--(i) General rule. A single plan with more than one 
contract, contribution rate, employer, or benefit level may compute a 
separate net shortfall charge for each contract, contribution rate, each 
employer, or each benefit level. The sum of these charges is the plan's 
total net shortfall charge. under Sec. 1.412(c)(1)-1(b), the use of 
separate computations would be a specific method of computation used in 
applying the overall funding method. See also paragraph (f)(5) of this 
section.
    (ii) Single valuation. Only one actuarial valuation shall be made 
for the single plan on each actuarial valuation date.
    (iii) Reasonableness test. The specific method of computation of the 
net shortfall charge must be reasonable, determined in the light of the 
facts and circumstances.
    (c) Estimated unit charge. The estimated unit charge is the annual 
computation charge described in paragraph (d) of this section divided by 
the estimated base units of service or production described in paragraph 
(e) of this section.
    (d) Annual computation charge. The annual computation charge for a 
plan year is the sum of the following amounts:
    (1) The net charges and credits which, but for using the shortfall 
method, would be made under section 412 (b)(2) and (b)(3)(B).
    (2) The amount described in paragraph (g)(3) of this section, if 
applicable, for amortization of shortfall gain or loss.
    (e) Estimated base units--(1) In general. The estimated base units 
are the expected units of service or production for a plan year (hours, 
days, tons, dollars of compensation, etc.), determined as of the base 
unit estimation date for that plan year under paragraph (f) of this 
section. This estimate must be based on the past experience of the plan 
and the reasonable expectations of the plan for the plan year. The 
specific type of unit used must be described in the statement of funding 
method for the plan year. (See paragraph (i)(3) of this section for 
reporting requirements.)
    (2) Reasonable expectations. The reasonableness of expectations used 
under paragraph (e)(1) of this section is determined under the facts and 
circumstances of the plan for each plan year as of the relevant base 
unit estimation date. Expectations will be considered unreasonable if, 
for example, they do not reflect a consistent and substantial decline or 
growth in actual base units that has occurred over the course of recent 
years and that is likely to continue beyond the base unit estimation 
date. This determination of reasonableness is independent of 
determinations made under section 412(c)(3) of the reasonableness of 
actuarial assumptions.
    (f) Base unit estimation date--(1) In general. The base unit 
estimation date for the current plan year is determined under this 
paragraph (f). This date shall be an actuarial valuation date no earlier 
than the last actuarial valuation date occurring at least one year 
before the earliest date any current

[[Page 550]]

collectively bargained agreement in existence during the plan year came 
into effect.
    (2) Four-month rule. For purposes of this paragraph (f), a current 
collectively bargained agreement is one in effect during at least four 
months of the current plan year.
    (3) Effective date of agreement. For purposes of this paragraph (f), 
a collectively bargained agreement shall be deemed to have come into 
effect on the effective date of the agreement containing the currently 
effective provision for contributions to the plan or the benefits 
provided under the plan.
    (4) Long-term contract rule. The effective date of a collectively 
bargained agreement shall be deemed not to occur prior to the first day 
of the third plan year preceding the current year.
    (5) Special rule for plans computing separate net shortfall charge. 
A plan that computes a separate net shortfall charge for each contract, 
contribution rate, employer, or benefit level under paragraph (b)(3) of 
this section shall determine the base unit estimation date for each 
separate charge without regard to any collectively bargained agreement 
that does not relate to that contract, contribution rate, employer, or 
benefit level. If a collective bargaining agreement requiring 
contributions by a certain employer, or prescribing a certain benefit 
level, is in effect on December 31, 1980, the preceding sentence shall 
not apply to the computation of a separate net shortfall charge for that 
employer or benefit level until the earlier of--
    (i) The first plan year beginning after the date on which expires 
the collective bargaining agreement requiring contributions by that 
employer (or the last collective bargaining agreement relating to that 
benefit level), or
    (ii) The first plan year beginning after December 31, 1983.
    (6) Example. The rules contained in paragraph (f) of this section 
are illustrated by the following table. In the table, ``V'' signifies 
actuarial valuation date (January 1 in each case shown); ``B'' signifies 
beginning of a contract; and ``E'' signifies end of a contract. The 
table shows the resulting earliest base unit estimation date with 
respect to the following assumed items:

                                Computation of Earliest Base Unit Estimation Date                               
----------------------------------------------------------------------------------------------------------------
                                                        Plan year (calendar year basis)                         
           Example           -----------------------------------------------------------------------------------
                               1973   1974   1975   1976   1977   1978   1979   1980   1981   1982   1983   1984
----------------------------------------------------------------------------------------------------------------
Plan A......................    V                    V                    V                    V                
                                                                                                                
  Contract 1................  .....  .....    E/B  .....  .....    E/B  .....    E/B  .....  .....  .....    E/B
                                                                                                                
  Base unit estimation date                                                                                     
   \1\......................                        1973   1973   1973   1976   1976   1979   1979   1979   1979
----------------------------------------------------------------------------------------------------------------
Plan B......................    V                    V                    V                    V                
                                                                                                                
  Contract 2................   \2\    \2\    \2\      B*  .....    E/B  .....  .....  .....   E/B*  .....  .....
                                                                                                                
   Contract 3...............    E/B  .....  .....    E/B  .....  .....    E/B  .....  .....    E/B  .....  .....
                                                                                                                
  Base unit estimation date                                                                                     
   \1\......................  .....  .....  .....   1973   1973   1973   1976   1976   1976   1976   1979   1979
----------------------------------------------------------------------------------------------------------------
Plan C......................    V      V      V      V      V      V      V      V      V      V      V      V  
                                                                                                                
  Contract 4................  .....  .....    E/B  .....  .....   E/B*  .....  .....  .....   E/B*  .....  .....
                                                                                                                
  Contract 5................  .....  .....    E/B  .....  .....   E/B*  .....  .....  .....  .....   E/B*  .....
                                                                                                                
  Base unit estimation date                                                                                     
   \1\......................                        1974   1974   1977   1977   1977   1977   1978   1979   1981
----------------------------------------------------------------------------------------------------------------
\1\ The base unit estimation date may be on or any time after the actuarial valuation date in the year indicated
  on this line.                                                                                                 
\2\ No contract.                                                                                                
* Denotes that a prior contract ends and a new contract begins prior to the fifth month of a plan year.         

    (g) Amortization of shortfall gain or loss--(1) Definition. The 
shortfall gain for a plan is the excess for the plan year of--
    (i) The net shortfall charge computed under paragraph (b) of this 
section over
    (ii) The annual computation charge described in paragraph (d) of 
this section.

The shortfall loss for a plan is the excess for the plan year of the 
annual computation charge over the net shortfall charge.

[[Page 551]]

    (2) Shortfall amortization period--(i) First year. The plan year in 
which the amortization of a shortfall gain or loss must begin is the 
earlier of two years: the fifth plan year following the plan year in 
which the shortfall gain or loss arose, or the first plan year beginning 
after the latest scheduled expiration date of a collectively bargained 
agreement in effect with respect to the plan during the plan year in 
which the shortfall gain or loss arose. For purposes of this 
subparagraph, a contract expiring on the last day of a plan year shall 
be deemed to be renewed on such last day for the same period of years as 
the contract that succeeds the expiring contract.
    (ii) Last year. The plan year in which the amortization of a 
shortfall gain or loss must end is the 15th plan year following the plan 
year in which the shortfall gain or loss arose. For a multiemployer plan 
described in section 414(f), the amortization must end with the 20th 
plan year instead of the 15th.
    (3) Annual amortization amount. The shortfall gain or loss must be 
amortized in equal annual installments. The total amount to be amortized 
must be adjusted for interest at the rate used for determining the 
plan's normal cost.
    (4) Shortfall gain or loss under spread gain type of funding 
method--(i) In general. A spread gain type of funding method spreads 
experience gains and losses over future periods as part of a plan's 
normal cost. (Examples of spread gain types of funding methods are the 
aggregate cost method, the frozen initial liability method, and the 
attained age normal method.) However, a shortfall gain or loss is not an 
experience gain or loss. Therefore, a plan using a spread gain type of 
funding method together with the shortfall method must amortize 
shortfall gains and losses and otherwise meet the requirements of 
paragraph (g) of this section.
    (ii) Asset adjustment for aggregate method. A plan using the 
shortfall method with the aggregate cost method of funding must adjust 
its plan assets for a shortfall gain or loss in calculating normal cost. 
The unamortized portion of any shortfall gain is subtracted from plan 
assets. The unamortized portion of any shortfall loss is added to plan 
assets.
    (5) Reconciliation of shortfall gain or loss with funding standard 
account. At the beginning of each year, the actual unfunded liability 
under the method used by the plan must equal the outstanding balance of 
all amortization bases, including bases for shortfall gains and losses, 
less the credit balance under the funding standard account at the end of 
the prior year.
    (6) Example. This paragraph is illustrated by the following 
examples:

    Example (1). A multiemployer plan described in section 414 (f) is 
maintained with the calendar year as the plan year and uses the 
shortfall method. The plan uses the frozen initial liability funding 
method. A five percent interest assumption is used by the plan, with 
payments computed as of the first day of each plan year for all items. 
The expiration dates of contracts in effect during plan years 1976, 
1977, and 1978 are such that the amortization of gains or losses for 
each year must begin in the fifth following plan year. The assumed plan 
costs and estimated base units for selected years, and the computations 
under this section which follow from such assumptions are shown in the 
following table. In the table, ``*'' denotes an assumed item. The 
remaining figures have been calculated on the basis of these 
assumptions.

   (A) Computation of Net Shortfall Charge and Shortfall Gain or Loss   
------------------------------------------------------------------------
            Plan year                  1976         1977         1978   
------------------------------------------------------------------------
1. Normal cost*..................     $100,000     $100,000     $100,000
2. Amortization of unfunded                                             
 liability*......................       50,000       50,000       50,000
                                  --------------------------------------
3. Total annual computation                                             
 charges.........................     $150,000     $150,000     $150,000
4. Estimated base units*.........      100,000      100,000      100,000
5. Estimated unit charge (line                                          
 3line 4)................        $1.50        $1.50        $1.50
6. Actual units during year*.....       80,000       90,000      110,000
7. Net shortfall charge for year                                        
 (line 5 x line 6)...............      120,000      135,000      165,000
8. Shortfall (gain) or loss (line                                       
 3-line 7).......................       30,000       15,000    ($15,000)
------------------------------------------------------------------------


                     (B) Annual Amortization Amount                     
9. Year of shortfall gain or loss         1976         1977         1978
10. First year of amortization...         1981         1982         1983
11. Last year of amortization....         1996         1997         1998

[[Page 552]]

                                                                        
12. (Gain) or loss adjusted for                                         
 interest to year amortization                                          
 begins (1-1-76 to 1-1-81, etc.).      $38,288      $19,144    ($19,144)
13. Annual amortization (16                                             
 years)..........................       $3,364       $1,682     ($1,682)
                                                                        


 (C) Computation of Net Shortfall Charges for Selected Years (Including 
                         Shortfall Amortization)                        
------------------------------------------------------------------------
            Plan year                  1981         1982         1983   
------------------------------------------------------------------------
14. Normal cost*.................     $120,000     $125,000     $130,000
15. Amortization of unfunded                                            
 liability*......................       50,000       50,000       50,000
16. Shortfall amortization (see                                         
 line 13) from:                                                         
    1976.........................        3,364        3,364        3,364
    1977.........................  ...........        1,682        1,682
    1978.........................  ...........  ...........      (1,682)
                                  --------------------------------------
17. Total annual computation                                            
 charges.........................      173,364      180,046      183,364
18. Estimated base units*........      110,000      110,000      110,000
19. Estimated unit charge (line                                         
 17line 18)..............        1.576        1.637        1.667
20. Actual units during year*....      105,000      110,000      105,000
21. Net shortfall charge for year                                       
 (line 19 x line 20).............      165,480      180,070      175,035
22. Shortfall (gain) loss (line                                         
 17-line 21).....................        7,884         (24)        8,329
------------------------------------------------------------------------

    The amounts in line 22 will be amortized beginning 1986, 1987, and 
1988, respectively. The $24 gain in 1982 results from rounding the 
estimated unit charge.
    Example (2). Assume the facts in Example (1). Also assume that the 
plan uses the frozen initial liability funding method, that the unfunded 
liability as of January 1, 1976 (corresponding to a 40-year charge of 
$50,000 due at the beginning of the year) is $900,850, and that actual 
contributions at the rate of $1.75 per unit are paid at mid-year in 
1976.

    (A) Computation of the Unfunded Liability as of December 31, 1976   
1. Unfunded liability as of 1/1/76.........................     $900,850
2. Normal cost (that used in the calculation of the total               
 annual computation charges)...............................      100,000
3. Interest at 5% due on items 1 and 2.....................       50,043
4. Contribution with interest: $1.75 x 80,000 x 1.025                   
 (actual contribution rate times acutal base units times                
 interest adjustment from mid-year)........................      143,500
                                                            ------------
5. Unfunded liability as of 12/31/76: item 1+item 2+item 3 -            
 item 4....................................................      907,393
                                                                        


 (B) Computation of the Outstanding Balance of the Bases as of December 
                                31, 1976                                
1. Original base: ($900,850-$50,000) x 1.05................     $893,393
2. Shortfall loss $30,000 x 1.05...........................       31,500
                                                            ------------
3. Total...................................................      924,893
                                                                        


      (C) Computation of the Credit Balance as of December 31, 1976     
1. Net shortfall charge (Sec.  1.412 (c) (1)-2 (b))                     
 adjusted for interest: $120,000 x 1.05....................     $126,000
2. Actual contributions with interest......................      143,500
                                                            ------------
3. Credit balance as of 12/31/76: item 2-item 1............       17,500
                                                                        

                   (D) Reconciliation of computations

    As of January 1, 1977, the unfunded liability ($907,393) equals the 
outstanding balance of the bases minus the credit balance 
($924,893-$17,500=$907,393).

    (h) Amortization of experience gain or loss--(1) General rule. In 
the case of a plan using an immediate gain type of funding method, an 
experience gain or loss shall be amortized pursuant to section 412 
(b)(2)(B)(iv) or (b)(3)(B)(ii). (Examples of the immediate gain type of 
funding method are the unit credit method, the entry age normal cost 
method, and the individual level premium cost method.) For purposes of 
this section, a shortfall gain or loss is not an experience gain or 
loss. The amount of the experience gain or loss must be adjusted for 
interest at the rate used for determining the plan's normal cost.
    (2) Experience amortization period under shortfall method--(i) First 
year. The plan year in which the amortization of an experience gain or 
loss must begin in the case of a plan using the shortfall method is the 
earlier of two years: the fifth plan year following the plan year in 
which the experience gain or loss arose, or the first plan year 
beginning after the last scheduled expiration date of a contract in 
effect during the plan year in which the experience gain or loss arose. 
For purposes of this subparagraph a contract expiring on the last day of 
the plan year shall be deemed to be renewed on such last day

[[Page 553]]

for the same period of years as the contract that succeeds the expiring 
contract.
    (ii) Last year. The plan year in which the amortization of an 
experience gain or loss must end in the case of a plan using the 
shortfall method is the 15th plan year following the plan year in which 
the experience gain or loss arose. For a multi-employer plan described 
in section 414 (f), the amortization must end with the 20th plan year 
instead of the 15th.
    (3) Use of annual computation charge in determining experience gain 
or loss. In the case of a plan using an immediate gain type of funding 
method, an experience gain or loss is the difference between the 
expected unfunded liability and the actual unfunded liability under the 
plan. The expected unfunded liability as of the end of a plan year 
equals the actual unfunded liability as of the beginning of the year 
plus normal cost, minus contributions, all adjusted for interest. If the 
plan adopts the shortfall method, the expected unfunded liability is 
computed by using the normal cost applicable for the plan year in 
determining the annual computation charge under paragraph (d) of this 
section. The same normal cost is used in computing the unfunded 
liability under the frozen initial liability funding method.
    (4) Example. This paragraph is illustrated by the following example:

    Example. Assume the facts in Example (2) from paragraph (g) (6) of 
this section, except that the entry age normal funding method is used. 
Also assume that as of December 31, 1976, the actual unfunded liability 
is $900,000.

             (A) Computation of Expected Unfunded Liability             
1. Actual unfunded liability as of 1-1-76..................     $900,850
2. Normal cost portion of annual computation charge as of 1-            
 1-76......................................................      100,000
3. Interest at 5% due on items 1 and 2.....................       50,043
4. Contribution received with interest: $1.75  x  80,000  x             
  1.025 (actual contribution rate times actual base units               
 times interest adjustment at mid-year)....................      143,500
                                                            ------------
5. Expected unfunded liability as of 12-31-76 (item 1 +                 
 item 2 + item 3 - item 4).................................      907,393
                                                                        


                     (B) Computation of Gain or Loss                    
1. Expected unfunded liability as of 12-31-76..............     $907,393
2. Actual unfunded liability as of 12-31-76................      900,000
                                                            ------------
3. Gain (or loss) (item 1 - item 2)........................        7,393
                                                                        

    (i) Election procedure--(1) In general. To elect the shortfall 
method, a collectively bargained plan must attach a statement to the 
annual report required under section 6058 (a) for the first plan year to 
which it is applied. The statement shall state that the shortfall method 
is adopted, beginning with the plan year covered by such report. Advance 
approval from the Internal Revenue Service is not required if the 
shortfall method is first adopted on or before the later of--
    (i) The first plan year to which section 412 applies or
    (ii) The last plan year commencing before December 31, 1981.

However, approval must be received pursuant to section 412(c)(5) prior 
to the adoption of the shortfall method at a later time, or the 
discontinuance of such method, once adopted.
    (2) Use of specific computation method. A specific method of 
computation under the shortfall method is described in paragraph (b)(3) 
of this section, regarding the treatment of more than one contract, 
employer, or benefit level under the plan. This specific method may be 
adopted with respect to any plan year to which the shortfall method 
applies. Approval from the Commissioner must be received under section 
412(c)(5) prior to the adoption of this specific computation method for 
a plan year subsequent to the first plan year to which the shortfall 
method applies, or prior to the discontinuance of a specific computation 
method, once adopted.
    (3) Reporting requirements. Each annual report required by section 
6058(a) and periodic report of the actuary required by section 6059 must 
include all additional information relevant to the use of the shortfall 
method as may be required by the applicable forms and the instructions 
for such forms.
    (j) Transitional rule. In lieu of paragraphs (g)(2) and (h)(2) of 
this section relating to the amortization period for shortfall and 
experience gains and losses, for gains and losses arising in plan years 
beginning before January 1,

[[Page 554]]

1981, a plan may rely on the prior published position of the Internal 
Revenue Service with respect to the amortization period for shortfall 
and experience gains and losses.
    (k) Supersession. This section and Sec. 1.412 (c) (1)-1 supersede 
Secs. 11.412 (c) (1)-1 and (c) (1)-2 of the Temporary Income Tax 
Regulations Under the Employee Retirement Income Security Act of 1974.

(Secs. 412, 7805, Internal Revenue Code of 1954 (88 Stat. 914 and 68A 
Stat. 917; (26 U.S.C. 412 and 7805)), and sec. 3 (31) of the Employee 
Retirement Income Security Act of 1974 (88 Stat. 837; (29 U.S.C. 1002)))

[T.D. 7733, 45 FR 75202, Nov. 14, 1980]



Sec. 1.412(c)(1)-3  Applying the minimum funding requirements to restored plans.

    (a) In general--(1) Restoration method. The restoration method is a 
funding method that adapts the underlying funding method of section 412 
in the case of certain plans that are or have been terminated and are 
later restored by the Pension Benefit Guaranty Corporation (PBGC). The 
normal operation of the funding standard account, and all other 
provisions of section 412 and the regulations thereunder, are unchanged 
except as provided in this Sec. 1.412(c)(1)-3. Under the restoration 
method, the PBGC shall determine a restoration payment schedule, 
extending over no more than 30 years, that replaces all charges and 
credits to the funding standard account attributable to pre-restoration 
amortization bases. The restoration payment schedule is determined on 
the basis of an actuarial valuation of the accrued liability of the plan 
on the initial post-restoration valuation date less the actuarial value 
of the plan assets on that date. The initial post-restoration valuation 
date is the date of the valuation that falls in the first plan year 
beginning on or after the date of the restoration order.
    (2) Applicability of restoration method. A plan must use the 
restoration method if, and only if--
    (i) The plan is being or has been terminated pursuant to section 
4041(c) or section 4042 of the Employee Retirement Income Security Act 
of 1974 (ERISA); and
    (ii) The plan has been restored by the PBGC pursuant to its 
authority under section 4047 of ERISA.
    (b) Computation and effect of the initial restoration amortization 
base--(1) In general. The initial restoration amortization base is 
determined under the underlying funding method used by the plan. When 
the plan uses a spread gain funding method that does not maintain an 
unfunded liability, the plan must change either to an immediate gain 
method that directly calculates an accrued liability or to a spread gain 
method that maintains an unfunded liability. A plan may adopt any cost 
method that satisfies this requirement and that is acceptable under 
section 412 and the regulations thereunder, provided that the plan 
administrator follows the procedures established by the Commissioner for 
changes in funding methods. The initial restoration amortization base is 
determined using the valuation for the plan year in which the initial 
post-restoration valuation date falls. The initial restoration 
amortization base equals the accrued liability with respect to plan 
benefit liabilities returned by the PBGC less the value of the plan 
assets returned by the PBGC. The initial restoration amortization base 
replaces all prior amortization bases including those under section 
412(b)(2) (B), (C), and (D) and under section 412(b)(3)(B). Any base 
resulting from a change in funding method, including a change required 
under this paragraph, is treated as a prior amortization base within the 
meaning of this paragraph (b). Any accumulated funding deficiency or 
credit balance in the funding standard account is set equal to zero when 
the initial restoration amortization base is established.
    (2) Example. The following example illustrates the provisions of 
this paragraph (b):

    Example. A pension plan uses the calendar year as its plan year, 
makes its annual periodic valuation as of January 1, and uses the unit 
credit actuarial cost method for funding purposes. The plan is in the 
process of being terminated. By order of the PBGC the plan is restored 
as of July 1, 1991. The initial post-restoration valuation date is 
January 1, 1992, and a restoration payment schedule order is issued on 
October 31, 1992. If, as of January 1, 1992, the accrued liability of 
the plan is $1,000,000 and the value of the plan assets is

[[Page 555]]

$200,000, the initial restoration amortization base is $800,000.

    (c) Establishment of a restoration payment schedule--(1) 
Certification requirement. When the PBGC establishes a restoration 
payment schedule, the Executive Director of the PBGC must certify to the 
PBGC's Board of Directors, and to the Internal Revenue Service, that the 
PBGC has reviewed the funding of the plan, the financial condition of 
the plan sponsor and its controlled group members, the payments required 
under the restoration payment schedule (taking into account the 
availability of deferrals authorized under paragraph (c)(4) of this 
section), and any other factor that the PBGC deems relevant, and, based 
on that review, determines that it is in the best interests of 
participants and beneficiaries of the plan and the pension insurance 
program that the restored plan not be reterminated.
    (2) Requirements for restoration payment schedule--(i) Amortization 
of base over period of no more than 30 years. The restoration payment 
schedule must be prescribed in an order requiring the employer to make 
stated contributions to the plan sufficient to amortize the initial 
restoration amortization base over a period extending not more than 30 
years after the initial post-restoration valuation date (the restoration 
payment period). Payments included in the restoration payment schedule 
order are charged to the funding standard account of the plan at the end 
of each plan year in accordance with paragraph (d) of this section. The 
restoration payment schedule must provide for total charges that are 
sufficient to amortize the entire amount of the initial restoration 
amortization base by the end of the restoration payment period. The 
scheduled charges need not be in level amounts, but the present value of 
the prescribed charges on the initial post-restoration valuation date, 
computed with interest at the valuation rate, must equal the initial 
restoration amortization base.
    (ii) Minimum annual charge. The restoration payment schedule must 
prescribe annual charges that are sufficient to prevent the outstanding 
balance of the initial restoration amortization base from exceeding 
whichever of the following amounts is applicable--
    (A) During the first 10 plan years on the restoration payment 
schedule, the amount of the initial restoration amortization base on the 
date the base was established; or
    (B) During plan years 11 through 20 on the restoration payment 
schedule, the maximum permitted outstanding balance of the initial 
restoration amortization base at the end of the tenth plan year, as 
calculated under paragraph (c)(2)(iii) of this section; or
    (C) During plan years 21 through the end of the restoration payment 
schedule, the maximum permitted outstanding balance of the initial 
restoration amortization base at the end of the twentieth plan year, as 
calculated under paragraph (c)(2)(iii) of this section.
    (iii) Interim amortization requirements. The restoration payment 
schedule must provide for sufficient periodic charges so that the 
outstanding balance of the initial restoration amortization base at the 
end of the tenth plan year and at the end of the twentieth plan year of 
the restoration payment period will not be larger than the outstanding 
balance that would have remained at the end of the tenth plan year and 
at the end of the twentieth plan year, respectively, if the initial 
restoration amortization base had been amortized in level annual amounts 
over the restoration payment period at the valuation rate.
    (3) Amendments to the restoration payment schedule. The order 
establishing the restoration payment schedule may be amended by the PBGC 
from time to time with respect to any remaining payments, provided that 
no amendment may extend the restoration payment period beyond 30 years 
from the initial post-restoration valuation date, and provided further 
that the restoration payment schedule, as amended, satisfies the 
requirements of paragraph (c)(2) of this section.
    (4) Deferral of minimum scheduled annual payment amounts--(i) 
Authority to grant deferral. Not later than 2\1/2\ months following the 
end of the plan year, the PBGC may grant a deferral of the charges 
required in the restoration payment schedule for that plan year if

[[Page 556]]

the requirements in paragraph (c)(4)(ii) of this section are satisfied. 
The PBGC may require the plan sponsor and its controlled group members 
to provide security to the plan as a condition to granting a deferral.
    (ii) Determination of business hardship. Before granting a deferral 
under this paragraph (c)(4), the PBGC must make a determination that the 
granting of the deferral is in the best interests of plan participants 
and the plan termination insurance system, and that the plan sponsor and 
its controlled group members are unable to make the scheduled 
restoration payments without experiencing temporary substantial business 
hardship. In making these determinations, the factors the PBGC shall 
consider, include, but are not limited to, the following--
    (A) Whether the plan sponsor and its controlled group members are 
operating at an economic loss;
    (B) Whether there is substantial unemployment or underemployment in 
the trades or businesses of the plan sponsor and its controlled group 
members;
    (C) Whether the sales and profits of the industry or industries are 
depressed or declining; and
    (D) Whether it is reasonable to expect that the plan termination 
insurance system will suffer a greater loss if the plan is terminated 
than if it is continued as a restored plan.
    (iii) Amount of deferral. The amount of the deferral for any 
particular plan year may not exceed the lesser of the amount that would 
have been required to be contributed under the restoration payment 
schedule for that year or interest at the valuation rate on the 
outstanding balance of the initial restoration amortization base for 
that year. An amortization payment for a deferral granted for a prior 
plan year may not be deferred. No deferral may extend the overall 
restoration payment period beyond 30 years.
    (iv) Modification of payment schedule. The restoration payment 
schedule must be adjusted to reflect any deferral granted for a plan 
year in the manner prescribed in this paragraph (c). The charge 
otherwise specified in the schedule is reduced by the amount of any 
deferral. The charges under the restoration payment schedule for the 
subsequent plan years are increased by the amounts in paragraph 
(c)(4)(v) of this section.
    (v) Amortization of deferred amount. The amount of any deferral 
granted by the PBGC for any plan year must be amortized in level amounts 
over five years or such shorter period as may be prescribed by the PBGC, 
at the valuation rate, beginning with the plan year following the year 
of the deferral.
    (vi) Number of deferrals permitted. The PBGC may not grant more than 
five deferrals of the minimum scheduled payments as required by this 
section during the restoration payment period and no more than three of 
these deferrals may be granted during the first ten years of that 
period.
    (vii) Deferrals override minimum annual charges and interim 
amortization requirements. In determining the minimum annual charge 
under paragraph (c)(2)(ii) of this section and in applying the interim 
amortization requirements of paragraph (c)(2)(iii) of this section, the 
unamortized balances of any deferrals granted by the PBGC under this 
paragraph shall be added to the outstanding balance of the initial 
restoration amortization base otherwise allowable.
    (d) Charging the scheduled restoration payments to the funding 
standard account. In addition to any other charges and credits 
prescribed in the normal operation of the funding standard account under 
section 412, the amount of each payment specified in the restoration 
payment schedule shall be charged against the funding standard account 
of the plan for the plan year to which that payment is attributed in the 
restoration payment schedule. To the extent that the restoration payment 
schedule provides for payments before the end of the plan year, the 
annual charge to the funding standard account attributable to the 
restoration payment schedule is equal to the sum of the periodic 
payments for the plan year accumulated with interest at the valuation 
rate to the last day of the plan year.
    (e) Changes in actuarial assumptions or methods. The plan 
administrator must notify the PBGC of any changes in the actuarial 
assumptions or methods used

[[Page 557]]

by the plan. Upon notification of any such change, the PBGC may make any 
changes to the restoration payment schedule that it deems appropriate.
    (f) Change to restoration method. A plan that has been restored must 
use the restoration method until the initial restoration amortization 
base has been fully amortized. The use of this method does not require 
prior approval from the Commissioner. A plan using the restoration 
method must compute the charges to the funding standard account to 
amortize the initial restoration amortization base in accordance with 
the order of the PBGC and in accordance with this section.
    (g) Deficit reduction contribution--(1) Calculation of deficit 
reduction contribution. For any plan using the restoration method, the 
deficit reduction contribution under section 412(l)(2) is equal to the 
sum of--
    (i) The unfunded section 412(l) restoration liability amount; plus
    (ii) The unfunded new liability amount.
    (2) Unfunded section 412(l) restoration liability amount. The 
unfunded section 412(l) restoration liability amount is the amount 
necessary to amortize fully the unfunded section 412(l) restoration 
liability in installments, as prescribed by the PBGC, over not more than 
30 years. The annual amount need not be level, but at all times the 
present value of the future amortization charges prescribed under the 
restoration payment schedule, at the current liability interest rate, 
must equal the outstanding balance of the unfunded section 412(l) 
restoration liability and the schedule must provide that at the end of 
no more than 30 years the entire amount of the unfunded section 412(l) 
restoration liability base will have been fully amortized. The schedule 
prescribed for amortization of the unfunded section 412(l) restoration 
liability must comply with the requirements imposed in paragraph (c) of 
this section on the restoration payment schedule, except as provided in 
paragraph (g)(7) of this section and except that the maximum permitted 
outstanding balance of the unfunded section 412(l) restoration liability 
at the end of the tenth plan year must not be greater than the 
outstanding balance of the section 412(l) restoration liability that 
would have remained at the end of the tenth plan year if the unfunded 
section 412(l) restoration liability had been amortized in level amounts 
over the restoration payment period at the actual current liability 
interest rate for each year, increased by the current liability interest 
rate differential as defined under paragraph (g)(7) of this section. The 
unfunded section 412(l) restoration liability amount for the tenth plan 
year otherwise prescribed under the restoration payment schedule is 
increased by any outstanding current liability interest rate 
differential. By issuing an appropriate order, the PBGC may permit the 
outstanding current liability interest rate differential to be amortized 
over the tenth through the fourteenth plan years. If the PBGC permits 
the amortization of the outstanding current liability interest rate 
differential, then the unfunded section 412(l) restoration liability 
amount for each year to which an amortization payment is attributed 
under the order shall be increased by such payment. The outstanding 
balance otherwise required by paragraph (g)(2) of this section is 
increased by the outstanding balance, if any, of the base resulting from 
the amortization of the current liability interest rate differential. 
The PBGC may amend the amortization schedule for the unfunded section 
412(l) restoration liability subject to the limits on amendments to the 
amortization schedule prescribed for the initial restoration 
amortization base.
    (3) Establishment of unfunded section 412(l) restoration liability. 
In the plan year in which the initial post-restoration valuation date 
falls, the unfunded section 412(l) restoration liability is equal to the 
unfunded current liability of the plan.
    (4) Unfunded new liability amount. In the case of a plan using the 
restoration method, the unfunded new liability amount is the applicable 
percentage, as defined in section 412(l)(4)(C), of the unfunded new 
liability determined under paragraph (g)(5) of this section.
    (5) Unfunded new liability. The unfunded new liability of a plan 
using the restoration method is the excess, if any, of the unfunded 
current liability

[[Page 558]]

of the plan, within the meaning of section 412(l)(8)(A) for the plan 
year (determined without taking into account any unpredictable 
contingent event benefits, even if the event has occurred) over the 
outstanding balance of the unfunded section 412(l) restoration liability 
determined under paragraph (g)(3) of this section.
    (6) Offset of amortization charges. The amounts charged to the 
funding standard account pursuant to the restoration payment schedule in 
order to amortize the initial restoration base, as described in 
paragraph (d) of this section, must be offset against the deficit 
reduction contribution in paragraph (g)(1) of this section along with 
any other applicable amounts provided in section 412(l)(1)(A)(ii).
    (7) Interest rate differential. During the first 10 plan years after 
the initial post-restoration valuation date, the restoration payment 
schedule must prescribe an unfunded section 412(l) restoration liability 
amount for each plan year that is sufficient to prevent the outstanding 
balance of the unfunded section 412(l) restoration liability from 
exceeding the initial amount of the unfunded section 412(l) restoration 
liability increased by the current liability interest rate differential. 
The current liability interest rate differential at any point during the 
first ten years of the restoration payment period is the excess, if any, 
of the outstanding balance of the unfunded section 412(l) restoration 
liability determined using the actual current liability interest rate 
for each year, taking into account the charges described in paragraph 
(d) of this section, over the outstanding balance of the unfunded 
section 412(l) restoration liability determined using the lowest, for 
each year, of the initial current liability interest rate, the current 
liability interest rate for the computation year, and the valuation 
interest rate, taking into account the charges described in paragraph 
(d) of this section.
    (h) Election of the alternative minimum funding standard. A plan 
using the restoration method may not elect the alternative minimum 
funding standard under section 412(g).
    (i) Funding review by the PBGC. The PBGC must review the funding of 
any plan using the restoration method at least once in each plan year. 
As a result of a funding review, the PBGC may amend the restoration 
payment schedule as provided in paragraph (c)(3) of this section. As 
part of the funding review, the Executive Director of the PBGC must 
certify to the PBGC's Board of Directors, and to the Internal Revenue 
Service, that the PBGC has reviewed the funding of the plan, the 
financial condition of the plan sponsor and its controlled group 
members, the payments required under the restoration payment schedule 
(taking into account the availability of deferrals authorized under 
paragraph (c)(4) of this section), and any other factor that the PBGC 
deems relevant, and, based on that review, determines that it is in the 
best interests of participants and beneficiaries of the plan and the 
pension insurance program that the restored plan not be reterminated.

[T.D. 8494, 58 FR 54491, Oct. 22, 1993]



Sec. 1.412(c)(1)-3T  Applying the minimum funding requirements to restored plans (Temporary).

    (a) In general--(1) Restoration method. The restoration method is a 
funding method that adapts the underlying funding method of section 412 
in the case of certain plans that are or have been terminated and are 
later restored by the Pension Benefit Guaranty Corporation. The normal 
operation of the funding standard account, and all other provisions of 
section 412 and the regulations thereunder, are unchanged except as 
provided in this Sec. 1.412(c)(1)-3T. Under the restoration method, the 
Pension Benefit Guaranty Corporation shall determine a restoration 
payment schedule, extending over no more than 30 years, that replaces 
all charges and credits to the funding standard account attributable to 
pre-restoration amortization bases. The restoration payment schedule is 
determined on the basis of an actuarial valuation of the accrued 
liability of the plan on the initial post-restoration valuation date 
less the actuarial value of the plan assets on that date. The initial 
post-restoration valuation date is the date of the first valuation that 
falls in the first plan year

[[Page 559]]

beginning on or after the later of October 23, 1990, or the date of the 
restoration order.
    (2) Applicability of restoration method. A plan must use the 
restoration method if, and only if:
    (i) The plan is being or has been terminated pursuant to section 
4041(c) or section 4042 of the Employee Retirement Income Security Act 
of 1974 (ERISA), and
    (ii) The plan has been restored by the Pension Benefit Guaranty 
Corporation pursuant to its authority under section 4047 of ERISA.
    (b) Computation and effect of the initial restoration amortization 
base--(1) In general. The initial restoration amortization base is 
determined under the underlying funding method used by the plan. When 
the plan uses a spread gain funding method that does not maintain an 
unfunded liability, the plan must change either to an immediate gain 
method that directly calculates an accrued liability or to a spread gain 
method that maintains an unfunded liability. A plan may adopt any cost 
method that satisfies this requirement and that is acceptable under 
section 412 and the regulations thereunder, provided that the plan 
follows the procedures established by the Commissioner for changes in 
funding methods. The initial restoration amortization base is determined 
using the valuation for the plan year in which the initial post-
restoration valuation date falls. The initial restoration amortization 
base equals the accrued liability with respect to plan benefit 
liabilities returned by the Pension Benefit Guaranty Corporation less 
the value of the plan assets returned by the Pension Benefit Guaranty 
Corporation. The initial restoration amortization base replaces all 
prior amortization bases including those under subparagraphs (B), (C), 
and (D) of section 412(b)(2) and under subparagraph (B) of section 
412(b)(3). Any base resulting from a change in funding method is treated 
as a prior amortization base within the meaning of this paragraph (b). 
Any accumulated funding deficiency or credit balance in the funding 
standard account is set equal to zero when the initial restoration 
amortization base is established.
    (2) Example. A pension plan uses the calendar year as its plan year, 
makes its annual periodic valuation as of January 1, and uses the unit 
credit actuarial cost method for funding purposes. The plan is in the 
process of being terminated. By order of the Pension Benefit Guaranty 
Corporation the plan is restored as of July 1, 1991, and a restoration 
payment schedule order issued on October 31, 1992. The initial post-
restoration valuation date is January l, 1993. If, as of that date, the 
accrued liability of the plan is $1,000,000 and the value of the plan 
assets is $200,000, the initial restoration amortization base is 
$800,000.
    (c) Establishment of a restoration payment schedule--(1) 
Certification requirement. When the PBGC establishes a restoration 
payment schedule, the Executive Director of the PBGC must certify to the 
Corporation's Board of Directors, and to the Internal Revenue Service, 
that the Corporation has reviewed the funding of the plan, the financial 
condition of the plan sponsor and its controlled group members, the 
payments required under the restoration payment schedule (taking into 
account the availability of deferrals authorized under paragraph (c)(4) 
of this section), and any other factor that the Corporation deems 
relevant, and, based on that review, determines that it is in the best 
interests of participants and beneficiaries of the plan and the pension 
insurance program that the restored plan not be reterminated.
    (2) Requirements for restoration payment schedule--(i) Amortization 
of base over period of no more than 30 years. The restoration payment 
schedule must be prescribed in an order requiring the employer to make 
stated contributions to the plan sufficient to amortize the initial 
restoration amortization base over a period extending not more than 30 
years after the initial post-restoration valuation date (the restoration 
payment period). The restoration payment schedule must be sufficient to 
amortize the entire amount of the initial restoration amortization base 
by the end of the restoration payment period. The scheduled charges need 
not be in level amounts, but the present value of the prescribed charges 
on the initial

[[Page 560]]

post-restoration valuation date, computed with interest at the valuation 
rate, must equal the initial restoration amortization base.
    (ii) Minimum annual charge. The restoration payment schedule must 
require annual charges that are sufficient to prevent the outstanding 
balance of the initial restoration amortization base from exceeding 
whichever of the following amounts is applicable:
    (A) During the first 10 plan years on the restoration payment 
schedule, the amount of the initial restoration amortization base on the 
date the base was established, or
    (B) During plan years 11 through 20 on the restoration payment 
schedule, the maximum permitted outstanding balance of the initial 
restoration amortization base at the end of the tenth plan year, as 
calculated under paragraph (c)(2)(iii) below, or
    (C) During plan years 21 through the end of the restoration payment 
schedule, the maximum permitted outstanding balance of the initial 
restoration amortization base at the end of the twentieth plan year, as 
calculated under paragraph (c)(2)(iii) below.
    (iii) Interim amortization requirements. The restoration payment 
schedule must provide for sufficient periodic charges so that the 
outstanding balance of the initial restoration amortization base at the 
end of the tenth plan year and at the end of the twentieth plan year of 
the restoration payment period will not be larger than the outstanding 
balance that would have remained at the end of the tenth plan year and 
at the end of the twentieth plan year, respectively, if the initial 
restoration amortization base had been amortized in level amounts over 
the restoration payment period at the valuation rate.
    (3) Amendments to the restoration payment schedule. The order 
establishing the restoration payment schedule may be amended by the 
Pension Benefit Guaranty Corporation from time to time with respect to 
any remaining payments, provided that no amendment may extend the 
restoration payment period beyond 30 years from the initial post-
restoration valuation date, and provided further that the restoration 
payment schedule, as amended, satisfies the requirements of paragraph 
(c)(2) of this section.
    (4) Deferral of minimum scheduled annual payment amounts--(i) 
Authority to grant deferral. Not later than 2\1/2\ months following the 
end of the plan year, the Pension Benefit Guaranty Corporation may grant 
a deferral of the charges required in the restoration payment schedule 
for that plan year if the requirements in paragraph (c)(4)(ii) of this 
section are satisfied. The Pension Benefit Guaranty Corporation may 
require the plan sponsor and its controlled group members to provide 
security to the plan as a condition to granting a deferral.
    (ii) Determination of business hardship. Before granting a deferral 
under this paragraph (c)(4), the Pension Benefit Guaranty Corporation 
must make a determination that the granting of the deferral is in the 
best interests of plan participants and the plan termination insurance 
system, and that the plan sponsor and its controlled group members are 
unable to make the scheduled restoration payments without experiencing 
temporary substantial business hardship. In making these determinations, 
the factors the Pension Benefit Guaranty Corporation shall consider, 
include, but are not limited to, the following:
    (A) Whether the plan sponsor and its controlled group members are 
operating at an economic loss,
    (B) Whether there is substantial unemployment or underemployment in 
the trades or businesses of the plan sponsor and its controlled group 
members,
    (C) Whether the sales and profits of the industry or industries are 
depressed or declining, and
    (D) Whether it is reasonable to expect that the plan termination 
insurance system will suffer a greater loss if the plan is terminated 
than if it is continued as a restored plan.
    (iii) Amount of deferral. The amount of the deferral for any 
particular plan year may not exceed the lesser of the amount that would 
have been required to be contributed under the restoration payment 
schedule for that year or interest on the outstanding balance of the 
initial restoration amortization base for that year. An amortization

[[Page 561]]

payment for a deferral granted for a prior plan year may not be 
deferred. No deferral may extend the overall restoration payment period 
beyond 30 years.
    (iv) Modification of payment schedule. The restoration payment 
schedule must be adjusted to reflect any deferral granted for a plan 
year in the manner prescribed in this paragraph (c). The charge 
otherwise specified in the schedule is reduced by the amount of any 
deferral. The charges under the restoration payment schedule for the 
subsequent plan years are increased by the amounts in paragraph 
(c)(4)(v) of this section.
    (v) Amortization of deferred amount. The amount of any deferral 
granted by the Pension Benefit Guaranty Corporation for any plan year 
must be amortized in level amounts over five years or such shorter 
period as may be prescribed by the Pension Benefit Guaranty Corporation, 
at the valuation rate, beginning with the plan year following the year 
of the deferral.
    (vi) Number of deferrals permitted. The Pension Benefit Guaranty 
Corporation may not grant more than five deferrals of the minimum 
scheduled payments as required by this section during the restoration 
payment period and no more than three of these deferrals may be granted 
during the first ten years of that period.
    (d) Charging the scheduled restoration charges to the funding 
standard account. In addition to any other charges and credits 
prescribed in the normal operation of the funding standard account under 
section 412, the amount of each charge specified in the restoration 
payment schedule shall be charged against the funding standard account 
of the plan for the plan year to which that payment is attributed in the 
restoration payment schedule.
    (e) Changes in actuarial assumptions. If changes in actuarial 
assumptions increase or decrease the charges that would be required to 
amortize the outstanding balance of the initial restoration amortization 
base over the remaining years of the restoration payment schedule, the 
plan must notify the Pension Benefit Guaranty Corporation of the changes 
so that it may make appropriate changes to the restoration payment 
schedule.
    (f) Change to restoration method. A plan that has been restored must 
use the restoration method until the initial restoration amortization 
base has been fully amortized. The use of this method does not require 
prior approval from the Commissioner. A plan using the restoration 
method must compute the charges and credits to the initial restoration 
amortization base in accordance with the order of the Pension Benefit 
Guaranty Corporation and in accordance with this section.
    (g) Deficit reduction contribution--(1) Calculation of deficit 
reduction contribution. For any plan using the restoration method, the 
deficit reduction contribution under section 412(l)(2) is equal to the 
sum of--
    (i) The unfunded section 412(l) restoration liability amount, plus
    (ii) The unfunded new liability amount.
    (2) Unfunded section 412(l) restoration liability amount. The 
unfunded section 412(l) restoration liability amount is the amount 
necessary to amortize fully the unfunded section 412(l) restoration 
liability in installments, as prescribed by the Pension Benefit Guaranty 
Corporation, over not more than 30 years. The annual amount need not be 
level, but at all times the present value of the future amortization 
charges under the restoration payment schedule, at the current liability 
interest rate, must equal the outstanding balance of the unfunded 
section 412(l) restoration liability and the schedule must provide that 
at the end of no more than 30 years the entire amount of the unfunded 
section 412(l) restoration liability base will have been fully 
amortized. The schedule prescribed for amortization of the unfunded 
section 412(l) restoration liability must comply with the requirements 
imposed in paragraph (c) of this section on the restoration payment 
schedule, except as provided in paragraph (g)(7) of this section and 
except that the maximum permitted outstanding balance of the unfunded 
section 412(l) restoration liability at the end of the tenth plan year 
must not be greater than the outstanding balance of the section 412(l) 
restoration liability that would have remained at

[[Page 562]]

the end of the tenth plan year if the unfunded section 412(l) 
restoration liability had been amortized in level amounts over the 
restoration payment period at the current liability interest rate, 
increased by the current liability interest rate differential as defined 
under paragraph (g)(7) of this section. The Pension Benefit Guaranty 
Corporation may amend the amortization schedule for the unfunded section 
412(l) restoration liability subject to the limits on amendments to the 
amortization schedule prescribed for the initial restoration 
amortization base.
    (3) Establishment of unfunded section 412(l) restoration liability. 
In the plan year in which the initial post-restoration valuation date 
falls, the unfunded section 412(l) restoration liability is equal to the 
unfunded current liability of the plan.
    (4) Unfunded new liability amount. In the case of a plan using the 
restoration method, the unfunded new liability amount is the applicable 
percentage, as defined in section 412(l)(4)(C), of the unfunded new 
liability determined under paragraph (g)(5) of this section.
    (5) Unfunded new liability. The unfunded new liability of a plan 
using the restoration method is the unfunded current liability of the 
plan for the plan year less the outstanding balance of the unfunded 
section 412(l) restoration liability determined under paragraph (g)(3) 
of this section and less any unpredictable contingent event benefit 
liabilities (without regard to whether or not the event has occurred).
    (6) Offset of amortization charges. The charges specified in the 
restoration payment schedule to amortize the initial restoration 
amortization base, must be offset against the deficit reduction 
contribution in paragraph (g)(1) of this section along with any other 
applicab1e amounts provided in section 412 (l)(1)(A)(ii).
    (7) Interest rate differential. During the first 10 plan years after 
the initial post-restoration valuation date, the unfunded section 412(l) 
restoration liability amount for the plan as determined for purposes of 
this section must be sufficient to prevent the outstanding balance of 
the unfunded section 412(l) restoration liability from exceeding the 
initial amount of the unfunded section 412(l) restoration liability 
increased by the current liability interest rate differential. The 
current liability interest rate differential at any point during the 
first ten years of the restoration payment period is the excess if any 
of the accumulated interest on the unfunded section 412(l) restoration 
liability computed at the current liability interest rate over the 
accumulated interest on the unfunded section 412(l) restoration 
liability computed at the least of the valuation rate, the current 
liability interest rate and current liability interest rate for the plan 
year in which the initial post restoration valuation date falls. The 
current liability interest rate differential is charged to the funding 
standard account at the end of the tenth plan year, but the Pension 
Benefit Guaranty Corporation may, as part of the restoration payment 
schedule order, or a modification to that order, direct that the 
charging of this amount must be spread over not more than 5 years, 
beginning with the eleventh plan year.
    (h) Election of the alternative minimum funding standard. A plan 
using the restoration method may not elect the alternative minimum 
funding standard under section 412(g).
    (i) Funding review by the Pension Benefit Guaranty Corporation. The 
Pension Benefit Guaranty Corporation must review the funding of any plan 
using the restoration method at least once in each plan year. As a 
result of a funding review, the Pension Benefit Guaranty Corporation may 
amend the restoration payment schedule as provided in paragraph (c)(3) 
of this section. As part of the funding review, the Executive Director 
of the PBGC must certify to the Corporation's Board of Directors, and to 
the Internal Revenue Service, that the Corporation has reviewed the 
funding of the plan, the financial condition of the plan sponsor and its 
controlled group members, the payments required under the restoration 
payment schedule (taking into account the availability of deferrals 
authorized under paragraph (c)(4) of this section), and any other factor 
that the Corporation deems relevant, and, based on that review, 
determines that it is in the

[[Page 563]]

best interests of participants and beneficiaries of the plan and the 
pension insurance program that the restored plan not be reterminated.

[T.D. 8317, 55 FR 42707, Oct. 23, 1990; 56 FR 19038, Apr. 25, 1991]



Sec. 1.412(c)(2)-1  Valuation of plan assets; reasonable actuarial valuation methods.

    (a) Introduction--(1) In general. This section prescribes rules for 
valuing plan assets under an actuarial valuation method which satisfies 
the requirements of section 412(c)(2)(A). An actuarial valuation method 
is a funding method within the meaning of section 412(c)(3) and the 
regulations thereunder. Therefore, certain changes affecting the 
actuarial valuation method are identified in this section as changes in 
a plan's funding method.
    (2) Exception for certain bonds, etc. The rules of this section do 
not apply to bonds or other evidences of indebtedness for which the 
election described in section 412(c)(2)(B) has been made, nor are such 
assets counted in applying paragraphs (b) or (c) of this section. Also, 
an election under section 412(c)(2)(B) is not a change in funding method 
within the meaning of section 412(c)(5).
    (3) Money purchase pension plan. A money purchase pension plan must 
value assets for the purpose of satisfying the requirements of section 
412(c)(2)(A) solely on the basis of their fair market value (under 
paragraph (c) of this section).
    (4) Defined benefit plans. (i) To satisfy the requirements of 
section 412(c)(2)(A), an actuarial method valuing assets of a defined 
benefit plan must meet the requirements of paragraph (b) of this 
section.
    (ii) In general, the purpose of paragraph (b) of this section is to 
permit use of reasonble actuarial valuation methods designed to mitigate 
short-run changes in the fair market value of plan assets. The funding 
of plan benefits and the charges and credits to the funding standard 
account required by section 412 are generally based upon the assumption 
that the defined benefit plan will be continued by the employer. Thus, 
short-run changes in the value of plan assets presumably will offset one 
another in the long term. Accordingly, in the determination of the 
amount required to be contributed under section 412 it is generally not 
necessary to recognize fully each change in fair market value of the 
assets in the period in which it occurs.
    (iii) The asset valuation rules contained in paragraph (b) produce a 
``smoothing'' effect. Thus, investment performance, including 
appreciation or depreciation in the market value of the assets occurring 
in each plan year, may be recognized gradually over several plan years. 
This ``smoothing'' is in addition to the ``smoothing'' effect which 
results, for example, from amortizing experience losses and gains over 
15 or 20 years under section 412(b)(2 (B)(iv) and (3)(B)(ii).
    (b) Asset valuation method requirements--(1) Consistent basis. (i) 
The actuarial asset valuation method must be applied on a consistent 
basis. Any change in meeting the requirements of this paragraph (b) is a 
change in funding method subject to section 412(c)(5).
    (ii) A method may satisfy the consistency requirement even though 
computations are based only on the period elapsed since the adoption of 
the method or on asset values occurring during that period.
    (2) Statement of plan's method. The method of determining the 
actuarial value (but not fair market value) of the assets must be 
specified in the plan's actuarial report (required under section 6059). 
The method must be described in sufficient detail so that another 
actuary employing the method described would arrive at a reasonably 
similar result. Whether a deviation from the stated actuarial valuation 
method is a change in funding method is to be determined in accordance 
with section 412(c)(5) and the regulations thereunder. A deviation to 
include a type of asset not previously held by the plan would not be a 
change in funding method.
    (3) Consistent valuation dates. The same day or days (such as the 
first or the last day of a plan year) must be used for all purposes to 
value the plan's assests for each plan year, or portion of plan year, 
for which a valuation is made. For purposes of this section, each such 
day is a valuation date. A

[[Page 564]]

change in the day or days used is a change in funding method.
    (4) Reflect fair market value. The valuation method must take into 
account fair market value by making use of the--
    (i) Fair market value (determined under paragraph (c) of this 
section), or
    (ii) Average value (determined under paragraph (b)(7) of this 
section) of the plan's assets as of the applicable asset valuation date. 
This is done either directly in the computation of their actuarial value 
or indirectly in the computation of upper or lower limits placed on that 
value.
    (5) Results above and below fair market or average value. A method 
will not satisfy the requirements of this paragraph (b) if it is 
designed to produce a result which will be consistently above or below 
the values described in paragraph (b)(4) (i) and (ii). However, a method 
designed to produce a result which consistently falls between fair 
market value and average value will satisfy this requirement. See 
Example (5) in paragraph (b)(9) of this section for an illustration of a 
method described in the preceding sentence.
    (6) Corridor limits. (i) Regardless of how the method reflects fair 
market value under paragraph (b)(4), the method must result in an 
actuarial value of the plan's assets which is not less than a minimum 
amount and not more than a maximum amount. The minimum amount is the 
lesser of 80 percent of the current fair market value of plan assets as 
of the applicable asset valuation date or 85 percent of the average 
value (as described in subparagraph (7)) of plan assets as of that date. 
The maximum amount is the greater of 120 percent of the current fair 
market value of plan assets as of the applicable asset valuation date or 
115 percent of the average value of plan assets as of that date.
    (ii) Under a plan's method, a preliminary computation of the 
expected actuarial value may fall outside the prescribed corridor. A 
method meets the requirements of paragraph (b)(6)(i) of this section is 
such a case only by adjusting the expected actuarial value to the 
nearest corridor limit applicable under the method. A plan may use an 
actuarial valuation method with a narrower corridor than the general 
corridor required under paragraph (b)(6)(i). The adjustment to the 
nearest corridor limit of such a method for purposes of this subdivision 
(ii) would be determined by the narrower corridor stated in the 
description of the plan's method.
    (7) Average value. the average value of plan assets is computed by--
    (i) Determining the fair market value of plan assets at least 
annually,
    (ii) Adding the current fair market value of the assets (as of the 
applicable valuation date) and their adjusted values (as described in 
paragraph (b)(8) of this section) for a stated period not to exceed the 
five most recent plan years (including the current year), and
    (iii) Dividing this sum by the number of values (including the 
current fair market value) considered in computing the sum described in 
subdivision (ii).
    (8) Adjusted value. (i) the adjusted value of plan assets for a 
prior valuation date is their fair market value on that date with 
certain positive and negative adjustments. These adjustments reflect 
changes that occur between the prior asset valuation date and the 
current valuation date. However, no adjustment is made for increases or 
decreases in the total value of plan assets that result from the 
purchase, sale, or exchange of plan assets or from the receipt of 
payment on a debt obligation held by the plan.
    (ii) In determining the adjusted value of plan assets for a prior 
valuation date, there is added to the fair market value of the plan 
assets of that date the sum of all additions to the plan assets since 
that date, excluding appreciation in the fair market value of the 
assets. The additions would include, for example, any contribution to 
the plan; any interest or dividend paid to the plan; and any asset not 
taken into account in a prior valuation of assets, but taken into 
account for the current year, in computing the fair market value of plan 
assets under paragraph (c) of this section.
    (iii) In determining the adjusted value of plan assets for a prior 
valuation date, there is subtracted from the fair market value of the 
plan assets on that date the sum of all reductions in plan assets since 
that date, excluding depreciation in the fair market value

[[Page 565]]

of the assets. The reductions would include, for example, any benefit 
paid from plan assets; any expense paid from plan assets; and any asset 
taken into account in a prior valuation of assets but not taken into 
account for the current year, in computing the fair market value of plan 
assets under paragraph (c) of this section.
    (9) Examples. This paragraph (b) may be illustrated by the following 
examples. In each example, assume that the pension plan uses a 
consistent actuarial method of valuing its assets within the meaning of 
paragraph (b)(1), (2), and (3) of this section.

    Example (1). Plan A considers the value of its assets to be initial 
cost, increased by an assumed rate of growth of X percent annually. 
Under the circumstances, the X-percent factor used by the plan is a 
reasonable assumption. Thus, this method is not designed to produce 
results consistently above or below fair market value as prohibited by 
paragraph (b)(5) of this section. Also, the method requires that the 
actuarial value be adjusted as required to fall within the corridor 
under paragraph (b) (6) and (7) of this section. Therefore, the method 
reflects fair market value as required by paragraph (b)(4) of this 
section.
    Example (2). Plan B computes the actuarial value of its assets as 
follows: It determines the fair market value of the plan assets. Then 
the fair market value is adjusted to the extent necessary to make the 
actuarial value fall within a ``5 percent'' corridor. This corridor is 
plus or minus 5 percent of the following amount: the fair market value 
of the assets at the beginning of the valuation period plus an assumed 
annual growth of 4 percent with adjustments for contributions and 
benefit payments during the period. This method reflects fair market 
value in a manner prescribed by paragraph (b)(4) of this section. If the 
4 percent factor used by the plan is a reasonable assumption, this 
method is not designed to produce results consistently above or below 
fair market value, and thus it satisfies paragraph (b)(5). However, this 
method is unacceptable because in some instances it may result in an 
actuarial value outside the corridor described in paragraph (b)(6) of 
this section. This method would be permitted if a second corridor were 
imposed which would adjust the value of the total plan assets to the 
corridor limits as required by paragraph (b)(6).
    Example (3). Plan C values its assets by multiplying their fair 
market value by an index number. The use of the index results in the 
hypothetical average value that plan assets present on the valuation 
date would have had if they had been held during the current and four 
preceding years, and had appreciated or depreciated at the actual yield 
rates including appreciation and depreciation experienced by the plan 
during that period. However, the method requires an adjustment to the 
extent necessary to bring the resulting actuarial value of the assets 
inside the corridor described in the statement of the plan's actuarial 
valuation method. In this case, the stated corridor is 90 to 110 percent 
of fair market value, a corridor narrower than that described in 
paragraph (b)(7) of this section. This method is permitted.
    Example (4). Plan D values its assets by multiplying their fair 
market value by 95 percent. Although the method reflects fair market 
value and the results of this method will always be within the required 
corridor, it is not acceptable because it will consistently result in a 
value less than fair market value.
    Example (5). Plan E values its assets by using a five-year average 
method with appropriate adjustments for the period. Under the particular 
method used by Plan E, assets are not valued below 80 percent of fair 
market value or above 100 percent of fair market value. If the average 
produces a value that exceeds 100 percent of fair market value, the 
excess between 100 and 120 percent is recorded in a ``value reserve 
account.'' In years after one in which the average exceeds 100 percent 
of fair market value, amounts are subtracted from this account and 
added, to the extent necessary, to raise the value produced by the 
average for that year to 100 percent of fair market value. This method 
is permitted because it reflects fair market value under paragraph 
(b)(4) of this section by appropriately computing an average value, it 
satisfies paragraph (b)(5) by producing a result that falls consistently 
between fair market value and average value, and it properly reflects 
the corridor described in paragraph (b)(7).
    Example (6). All assets of Plan F are invested in a trust fund and 
the plan year is the calendar year. The actuarial value is determined by 
averaging fair market value over 4 years. An actuarial valuation is 
performed as of December 31, 1988.
    (i) The average value as of December 31, 1988, is computed as 
follows:

----------------------------------------------------------------------------------------------------------------
                                             1986        1986        1987        1987        1988        1988   
----------------------------------------------------------------------------------------------------------------
Fair market value: Jan. 1...............  ..........   $150,000   ..........   $196,500   ..........   $238,000 
  Contributions.........................    $65,000   ..........    $62,000   ..........    $66,000   ..........
  Benefit payments......................    (22,000)  ..........    (24,000)  ..........    (25,000)  ..........
  Expenses..............................     (6,500)  ..........     (7,000)  ..........     (7,500)  ..........

[[Page 566]]

                                                                                                                
  Interest and dividends................       8,000     44,500        7,500     38,500       7,000     240,500 
Net realized gains (losses).............  ..........     (2,000)  ..........      6,000   ..........     (8,000)
Balancing item \1\......................  ..........      4,000   ..........     (3,000)  ..........    (42,000)
                                         -----------------------------------------------------------------------
Fair market value: Dec. 31..............  ..........    196,500   ..........    238,000   ..........    228,000 
----------------------------------------------------------------------------------------------------------------
\1\ This equals the increase (decrease) in unrealized appreciation.                                             


----------------------------------------------------------------------------------------------------------------
                 Adjusted values                       1985            1986            1987            1988     
----------------------------------------------------------------------------------------------------------------
Fair market value: Dec. 31......................        $150,000        $196,500        $238,000        $228,000
Net adjustments:                                                                                                
  1988..........................................          40,500          40,500          40,500  ..............
  1987..........................................          38,500          38,500  ..............  ..............
  1986..........................................          44,500  ..............  ..............  ..............
                                                 ---------------------------------------------------------------
    Total.......................................         273,500         275,500         278,500         228,000
                                                 ===============================================================
Average value: 1988=$273,500 + $275,500 + $278,500 + $228,000  4=$263,875                               
----------------------------------------------------------------------------------------------------------------

    (ii) Plan F properly determines an average value under paragraph 
(b)(7) of this section for use as an actuarial value. Therefore, the 
valuation method meets the requirements of this section.
    Example (7). Plan G computes the actuarial value of the plan assets 
as follows: The current fair market value of the plan assets is averaged 
with the most recent prior adjusted actuarial value. This average value 
is adjusted up or down toward the current fair market value by 20 
percent of the difference between it and the current fair market value 
of the assets. This value is further adjusted to the extent necessary to 
fall within the corridor described in the statement of the plan's 
actuarial valuation method. The lower end of the corridor is the lesser 
of 80 percent of the fair market value of the plan assets or 85 percent 
of the average value of the plan assets. The higher end of the corridor 
is the greater of 120 percent of the fair market value of plan assets or 
115 percent of the average value of plan assets. Average value for 
purposes of the corridor is determined under paragraph (b)(7) of this 
section. Assuming the numerical data of Example (6), the application of 
the corridor is as follows. The actuarial asset value as of December 31, 
1988, must not be less than $182,400 (80 percent of current fair market 
value, $228,000) nor greater than $303,456 (115 percent of average 
value, 263,875). This method is permitted because it reflects fair 
market value in a manner permitted by paragraph (b)(4) of this section, 
it produces an actuarial value which is neither consistently above nor 
consistently below fair market or average value to satisfy paragraph 
(b)(5), and it is appropriately limited by the corridor described in 
paragraph (b)(6).

    (c) Fair market value of assets--(1) General rules. Except as 
otherwise provided in this paragraph (c), the fair market value of a 
plan's assets for purposes of this section is the price at which the 
property would change hands between a willing buyer and a willing 
seller, neither being under any compulsion to buy or sell and both 
having reasonable knowledge of relevant facts.
    (d) Methods for taking into account the fair market value of certain 
agreements. [Reserved]
    (e) Effective date and transition rules--(1) Effective date. This 
section applies to plan years to which section 412, or section 302 of 
the Employee Retirement Income Security Act of 1974, applies.
    (2) Special rule for certain plan years. For plan years beginning 
prior to November 12, 1980, the amounts required to be determined under 
section 412 may be computed on the basis of any reasonable actuarial 
method of asset valuation which takes into account the fair market value 
of the plan's assets, even if the method does not meet all of the 
requirements of paragraphs (a) through (c) of this section.
    (3) Plan years beginning on or after November 12, 1980. Paragraphs 
(a) through (c) of this section apply beginning with the first valuation 
of plan assets made for a plan year to which section 412 applies that 
begins on or after November 12, 1980. The statement of the plan's 
actuarial asset valuation method required by paragraph (b)(2) of this 
section must be included with the plan's actuarial report for that year, 
in addition to any subsequent reports.
    (4) Effect of change of asset valuation method. A plan which is 
required to change its asset valuation method to

[[Page 567]]

comply with paragraphs (a) through (c) of this section must make the 
change no later than the time when the plan is first required to comply 
with this section under paragraph (e)(3). A method of adjustment must be 
used to take account of any difference in the actuarial value of the 
plan's assets based on the old and new valuation methods. The plan may 
use either--
    (i) A method of adjustment described in paragraph (e)(5) or (e)(6) 
of this section without prior approval by the Commissioner, or
    (ii) Any other method of adjustment if the Commissioner gives prior 
approval under section 412(c)(5).
    (5) Retroactive recomputation method. (i) Under this method of 
adjustment, the plan recomputes the balance of the funding standard 
account as of the beginning of the first plan year for which it uses its 
new asset valuation method to comply with paragraphs (a) through (c) of 
this section. This new balance is recomputed by retroactively applying 
the plan's new method as of the first day of the first plan year to 
which section 412 applies.
    (ii) Beginning with the first plan year for which it uses its new 
method, the plan computes the normal cost and amortization charges and 
credits to the funding standard account based on the retroactive 
application of its new method as of the first day of the first plan year 
to which section 412 applies.
    (iii) If the recomputed aggregate charges exceed the recomputed 
aggregate credits to the funding standard account as of the end of the 
first plan year for which the plan uses its new method, an additional 
contribution to the plan may be necessary to avoid an accumulated 
funding deficiency in that year. The use of the retroactive 
recomputation method may also result in an accumulated funding 
deficiency for years prior to that first year. In such cases, the rules 
of section 412(c)(10), relating to the time when certain contributions 
are deemed to have been made, apply.
    (6) Prospective gain or loss adjustment method. (i) Under this 
method of adjustment the plan values its assets under its new method no 
later than the valuation date for the first plan year beginning after 
[the publication date of this section]
    (ii) Regardless of the type of funding method used by a plan, the 
difference in the value of the assets under the old and the new asset 
valuation methods may be treated as arising from an experience loss or 
gain; or alternatively it may be treated as arising from a change in 
actuarial assumptions.
    (iii) The treatment of this difference as an experience gain or loss 
or as a change in actuarial assumptions must be consistent with the 
treatment of such gains, losses, or changes under the funding method 
used by the plan. Thus, if a plan uses a spread gain type funding method 
other than the aggregate cost method, the difference in the value of 
assets under the old and the new asset valuation methods may be either 
amortized or spread over future periods as a part of normal cost. 
Examples of this type of funding method are the frozen initial liability 
cost method and the attained age normal cost method. With an aggregate 
method, the difference in the value of assets under the old and the new 
asset valuation methods must be spread over future periods as a part of 
normal cost.

(Secs. 412(c)(2) and 7805 of the Internal Revenue Code of 1954 (88 Stat. 
916 and 68A Stat. 917; 26 U.S.C. 412(c)(2) and 7805))

[T.D. 7734, 45 FR 74718, Nov. 12, 1980]



Sec. 1.412(c)(3)-1  Reasonable funding methods.

    (a) Introduction--(1) In general. This section prescribes rules for 
determining whether or not, in the case of an ongoing plan, a funding 
method is reasonable for purposes of section 412(c)(3). A method is 
unreasonable only if it is found to be inconsistent with a rule 
prescribed in this section. The term ``reasonable funding method'' under 
this section has the same meaning as the term ``acceptable actuarial 
cost method'' under section 3(31) of the Employee Retirement Income 
Security Act of 1974 (ERISA).
    (2) Computations included in method. See Sec. 1.412(c)(1)-1(b) for a 
discussion of matters that are, and are not, included in the funding 
method of a plan.
    (3) Plans using shortfall. The shortfall method is a method of 
determining

[[Page 568]]

charges to the funding standard account by adapting the underlying 
funding method of certain collectively bargained plans in the manner 
described in Sec. 1.412(c)(1)-2. As such, the shortfall method is a 
funding method. The underlying method of a plan that uses the shortfall 
method must be a reasonable funding method under this section. The rules 
contained in this section, relating to cost under a reasonable funding 
method, apply in the shortfall method to the annual computation charge 
under Sec. 1.412(c)(1)-2(d).
    (4) Scope of funding method. Except for the shortfall method, a 
reasonable funding method is applied to the computation of--
    (i) The normal cost of a plan for a plan year; and, if applicable,
    (ii) The bases established under section 412(b)(2)(B), (C), and (D), 
and (3) (B) (``amortizable bases'').
    (b) General rules for reasonable funding methods--(1) Basic funding 
formula. At any time, except as provided by the Commissioner, the 
present value of future benefits under a reasonable funding method must 
equal the sum of the following amounts:
    (i) The present value of normal costs (taking into account future 
mandatory employee contributions, within the meaning of section 
411(c)(2)(C), in the case of a contributory plan) over the future 
working lifetime of participants;
    (ii) The sum of the unamortized portions of amortizable bases, if 
any, treating credit bases under section 412(b)(3)(B) as negative 
numbers; and
    (iii) The plan assets, decreased by a credit balance (and increased 
by a debit balance) in the funding standard account under section 
412(b).
    (2) Normal cost. Normal cost under a reasonable funding method must 
be expressed as--
    (i) A level dollar amount, or a level percentage of pay, that is 
computed from year to year on either an individual basis or an aggregate 
basis; or
    (ii) An amount equal to the present value of benefits accruing under 
the method for a particular plan year.
    (3) Application to shortfall. Paragraph (b)(2) will not fail to be 
satisfied merely because an amount described in (i) or (ii) is expressed 
as permitted under the shortfall method.
    (c) Additional requirements--(1) Inclusion of all liabilities. Under 
a reasonable funding method, all liabilities of the plan for benefits, 
whether vested or not, must be taken into account.
    (2) Production of experience gains and losses. If each actuarial 
assumption is exactly realized under a reasonable funding method, no 
experience gains or losses are produced.
    (3) Plan population--(i) In general. Under a reasonable funding 
method, the plan population must include three classes of individuals: 
participants currently employed in the service of the employer; former 
participants who either terminated service with the employer, or 
retired, under the plan; and all other individuals currently entitled to 
benefits under the plan. See Sec. 1.412(c)(3)-1(d)(2) for rules 
concerning anticipated future participants.
    (ii) Limited exclusion for certain recent participants. Under a 
reasonable funding method, certain individuals may be excluded from the 
first class of individuals described in paragraph (c)(3)(i) of this 
section unless otherwise provided by the Commissioner. The excludable 
individuals are participants who would be excluded from participation by 
the minimum age or service requirement of section 410 but who, under the 
terms of the plan, participate immediately upon entering the service of 
the employer.
    (iii) Special exclusion for ``rule of parity'' cases. Under a 
reasonable funding method, certain individuals may be excluded from the 
second class of individuals described in paragraph (c)(3)(i) of this 
section. The excludable individuals are those former participants who 
have terminated service with the employer without vested benefits and 
whose service might be taken into account in future years because the 
``rule of parity'' of section 411(a)(6)(D) does not permit that service 
to be disregarded. However if the plan's experience as to separated 
employees' returning to service has been such that the exclusion 
described in this subparagraph would be unreasonable, the exclusion 
would no longer apply.
    (4) Use of salary scale--(i) General acceptability. The use of a 
salary scale assumption is not inappropriate merely

[[Page 569]]

because of the funding method with which it is used. Therefore, in 
determining whether actuarial assumptions are reasonable, a salary scale 
will not be considered to be prohibited merely because a particular 
funding method is being used.
    (ii) Projection to appropriate salary. Under a reasonable funding 
method, salary scales reflected in projected benefits must be the 
expected salary on which benefits would be based under the plan at the 
age when the receipt of benefits is expected to begin.
    (5) Treatment of allocable items. Under a reasonable funding method 
that allocates assets to individual participants to determine costs, the 
allocation of assets among participants must be reasonable. An initial 
allocation of assets among participants will be considered reasonable 
only if it is in proportion to related liabilities. However, the 
Commissioner may determine, based on the facts and circumstances, that 
it is unreasonable to continue to allocate assets on this basis beyond 
the initial year. Under a reasonable funding method that allocates 
liabilities among different elements of past and future service, the 
allocation of liabilities must be reasonable.
    (d) Prohibited considerations under a reasonable funding method--(1) 
Anticipated benefit changes--(i) In general. Except as otherwise 
provided by the Commissioner, a reasonable funding method does not 
anticipate changes in plan benefits that become effective, whether or 
not retroactively, in a future plan year or that become effective after 
the first day of, but during, a current plan year.
    (ii) Exception for collectively bargained plans. A collectively 
bargained plan described in section 413(a) may on a consistent basis 
anticipate benefit increases scheduled to take effect during the term of 
the collective-bargaining agreement applicable to the plan. A plan's 
treatment of benefit increases scheduled in a collective bargaining 
agreement is part of its funding method. Accordingly, a change in a 
plan's treatment of such benefit increases (for example, ignoring 
anticipated increases after taking them into account) is a change of 
funding method.
    (2) Anticipated future participants. A reasonable funding method 
must not anticipate the affiliation with the plan of future participants 
not employed in the service of the employer on the plan valuation date. 
However, a reasonable funding method may anticipate the affiliation with 
the plan of current employees who have not satisfied the participation 
requirements of the plan.
    (e) Special rules for certain funding methods--(1) Applicability of 
special rules. Paragraph (e) of this section applies to a funding method 
that determines normal cost under paragraph (b)(2)(ii) of this section.
    (2) Use of salary scale. For rules relating to use of a salary scale 
assumption, see paragraph (c)(4) of this section.
    (3) Allocation of liabilities. In determining a plan's normal cost 
and accrued liability for a particular plan year, the projected benefits 
of the plan must be allocated between past years and future years. 
Except in the case of a career average pay plan, this allocation must be 
in proportion to the applicable rates of benefit accrual under the plan. 
Thus, the allocation to past years is effected by multiplying the 
projected benefit by a fraction. The numerator of the fraction is the 
participant's credited years of service. The denominator is the 
participant's total credited years of service at the anticipated benefit 
commencement date. Adjustments are made to account for changes in the 
rate of benefit accrual. An allocation based on compensation is not 
permitted. In the case of a career average pay plan, an allocation 
between past and future service benefits must be reasonable.
    (f) Treatment of ancillary benefit costs--(1) General rule. Under a 
reasonable funding method, except as otherwise provided by this 
paragraph (f), ancillary benefit costs must be computed by using the 
same method used to compute retirement benefit costs under a plan.
    (2) Ancillary benefit defined. For purposes of this paragraph an 
ancillary benefit is a benefit that is paid as a result of a specified 
event which--
    (i) Occurs not later than a participant's separation from service, 
and
    (ii) Was detrimental to the participant's health.


[[Page 570]]


Thus, for example, benefits payable if a participant dies or becomes 
disabled prior to separation from service are ancillary benefits because 
the events giving rise to the benefits are detrimental to the 
participant's health. However, an early retirement benefit, a social 
security supplement (as defined in Sec. 1.411(a)-7(c)(4)(ii)), and the 
vesting of plan benefits (even if more rapid than is required by section 
411) are not ancillary benefits because those benefits do not result 
from an event which is detrimental to the participant's health.
    (3) Exception for certain insurance contracts. Under a reasonable 
funding method, regardless of the method used to compute retirement 
benefit costs, the cost of an ancillary benefit may equal the premium 
paid for that benefit under an insurance contract if--
    (i) The ancillary benefit is provided under the contract, and
    (ii) The benefit is guaranteed under the contract.
    (4) Exception for 1-year term funding and other approved methods. 
[Reserved]
    (5) Section 401(h) benefits. Section 412 does not apply to benefits 
that are described in section 401(h) and for which a separate account is 
maintained.
    (g) Examples. The principles of this section are illustrated by the 
following examples:

    Example (1). Assume that a plan, using funding method A, is in its 
first year. No contributions have been made to the plan, other than a 
nominal contribution to establish a corpus for the plan's trust. There 
is no past service liability, and the normal cost is a constant 
percentage of an annually determined amount. The constant percentage is 
99 percent, and the annually determined amount is the excess of the 
present value of future benefits over plan assets. The present value of 
future benefits is $10,000. Under paragraph (b)(1) of this section, the 
present value of future benefits must equal the present value of future 
normal costs plus plan assets. (No amortizable bases exist, nor are 
there credit or debit balances.) Under method A, the present value of 
future normal costs would equal the sum of a series of annually 
decreasing amounts. Because of the constant percentage factor, the 
present value of future normal costs over the years can never equal 
$10,000, the present value of future benefits. In effect, then, assets 
under method A can never equal the present value of future benefits if 
all assumptions are exactly realized. Therefore, method A is not a 
reasonable funding method.
    Example (2). Assume that a plan, using funding method B, determines 
normal cost by computing the present value of benefits expected to be 
accrued under the plan by the end of 10 years after the valuation date 
and adding to this the present value of benefits expected to be paid 
within these 10 years. Plan assets are subtracted from the sum of the 
two present value amounts. The difference then is divided by the present 
value of salaries projected over the 10 years. Under paragraph (c)(1) of 
this section, all liabilities of a plan must be taken into account. 
Because method B takes into account only benefits paid or accrued by the 
end of 10 years, it is not a reasonable funding method.
    Example (3). Assume that a plan, using funding method C, determines 
normal cost as a constant percentage of compensation. (This percentage 
is determined as follows: The excess of projected benefits over accrued 
benefits is computed. Then the present value of this excess is divided 
by the present value of future salaries.) However, the accrued liability 
is computed each year as the present value of accrued benefits. (This 
computation does not reflect normal cost as a constant percentage of 
compensation. Thus, normal cost under the plan does not link accrued 
liabilities under the plan for consecutive years as would be the case, 
for example, under a unit credit cost method.) In determining gains and 
losses, method C compares the actual unfunded liability (the accrued 
liability less assets) with the expected unfunded liability (the sum of 
the actual unfunded liability in the previous year and the normal cost 
for the previous year less the contribution made for the previous year, 
all adjusted for interest). Under paragraph (c)(2) of this section, if 
actuarial assumptions are exactly realized, experience gains and losses 
must not be produced. Under method C, the use of a constant percentage 
in computing normal cost (and the expected unfunded liability) coupled 
with the manner of computing the accrued liability (and the actual 
unfunded liability) generally produces gains in the earlier years and 
losses in the later years if each actuarial assumption is exactly 
realized. Therefore, method C is not a reasonable funding method.
    Example (4). Assume that a plan, using funding method D, bases 
benefits on final average pay. Under method D, the past service 
liability on any date equals the present value of the accrued benefit on 
that date based on compensation as of that date. The normal cost for any 
year equals the present value of a certain amount. That amount is the 
excess of the projected accrued benefit as of the end of the year over 
the actual accrued benefit at the beginning of the year. Accrued 
benefits, projected as of the end of a year, reflect a 1-year salary 
projection.

[[Page 571]]

Under paragraph (c)(4) of this section, salary scales reflected in 
projected benefits must project salaries to the salary on which benefits 
would be based under the plan at the age when the receipt of benefits 
under the plan is expected to begin. Because the plan is not a career 
average pay plan and compensation is projected only 1 year, method D is 
not a reasonable funding method. (Under paragraph (c)(4) of this 
section, the use of a salary scale assumption could be required with a 
unit credit method if, without the use of a salary scale, assumptions in 
the aggregate are unreasonable.)
    Example (5). Assume that a plan, using method E, a unit credit 
funding method, calculates a participant's accrued benefit according to 
the following formula: 2 percent of final salary for the first 10 years 
of service and 1 percent of final salary for the years of service in 
excess of 10. Under the plan, no employee may be credited with more than 
25 years of service. The actuarial assumptions for the valuation include 
a salary scale of 5 percent per year. For a participant at age 40 with 
15 years of service, a current salary of $20,000 and a normal retirement 
age of 65, the accrued liability for the retirement benefit is the 
present value of an annuity of $16,932 per year, commencing at age 65. 
The $16,932 is calculated as follows:

                                              (10 x 2) + (5 x 1)        
     $20,000 x 3.3864 x 35%  x             ------------------------     
                                        (10 x 2) - (15 x 1) + (15 x 0)  
                                                                        

(3.3864 is 1.05 raised to the 25th power; the 25th power reflects the 
difference between normal retirement age and attained age (65-40).)
    Salary under this method is projected to the age when the receipt of 
benefits is expected to begin. Therefore, method E meets the requirement 
of paragraph (c)(4) of this section. Also, the allocation of benefits 
under method E between past and future years of service meets the 
requirements of paragraph (e)(3) of this section.
    Example (6). Assume that a plan that has two participants and that 
previously used the unit credit cost method wishes to change the funding 
method at the beginning of the plan year to funding method F, a 
modification of the aggregate cost method. The modification involves 
determining normal cost for each of the two participants under the plan. 
Therefore, it requires an allocation of assets to each participant for 
valuation purposes. The actuary proposes to allocate the assets on hand 
at the beginning of the plan year of the change in funding method in 
proportion to the accrued liabilities calculated under the unit credit 
cost method. The relevant results of the calculations are shown below:

------------------------------------------------------------------------
                                                    Employees           
                                                ----------------  Totals
                                                    M       N           
------------------------------------------------------------------------
Accrued Liabilities (unit credit method):                               
  Dollar amount................................   15,670    906   16,576
  Per cent of total............................    94.53   5.47   100.00
Assets:                                                                 
  Dollar amount................................    7,835    453    8,288
  per cent of total............................    94.53   5.47   100.00
------------------------------------------------------------------------

    The proposed allocation in proportion to the accrued liabilities 
under the unit credit cost method satisfies the requirements of 
paragraph (c)(5) of this section at the beginning of the first plan year 
for which the new method is used.
    Example (7). The facts are the same as in Example (6). However, the 
actuary proposes to allocate all the assets to employee M, the older 
employee. Method F, under these facts, is not an acceptable funding 
method because the allocation is not in proportion to related 
liabilities as required under paragraph (c)(5) of this section.

[T.D. 7746, 45 FR 86430, Dec. 31, 1980]



Sec. 1.412(c)(3)-2  Effective dates and transitional rules relating to reasonable funding methods.

    (a) Introduction. This section prescribes effective dates for rules 
relating to reasonable funding methods, under section 412(c)(3) and 
Sec. 1.412(c)(3)-1. Also, this section sets forth rules concerning 
adjustments to a plan's funding standard account that are necessitated 
by a change in funding method, and a provision setting forth procedural 
requirements for use of an optional phase-in of required changes.
    (b) Effective date--(1) General rule. Except as otherwise provided 
by subparagraph (2) of this paragraph, Sec. 1.412(c)(3)-1 applies to any 
valuation of a plan's liabilities (within the meaning of section 
412(c)(9)) as of a date after April 30, 1981.
    (2) Exception. If a collective bargaining agreement which determines 
contributions to a plan is in effect on April 30, 1981, then 
Sec. 1.412(c)(3)-1 applies to any valuation of that plan's liabilities 
as of a date after the earlier of the date on which the last such 
collective bargaining agreement expires or April 30, 1984.
    (3) Transitional rule. The reasonableness of a funding method used 
in making a valuation of a plan's liability as of a date before the 
effective date determined under subparagraph (1) or (2)

[[Page 572]]

of this paragraph is determined on the basis of such published guidance 
as was available on the date as of which the valuation was made.
    (c) Change of funding method without approval--(1) In general. A 
plan that is required to change its funding method to comply with 
Sec. 1.412(c)(3)-1 is not required to submit the change of funding 
method for approval as otherwise required by section 412(c)(5). However, 
this change must be described on Form 5500, Schedule B for the plan year 
with respect to which the change is first effective.
    (2) Amortization base. An amortization base must be established in 
the plan year of the change in method equal to the change in the 
unfunded liability due to the change (where both unfunded liabilities 
are based on the same actuarial assumptions). Such a base must be 
amortized over 30 years in determining the charges or credits to the 
funding standard account, unless the Commissioner upon application 
permits amortization over a shorter period.
    (d) Phase-in of additional funding required by new method--(1) In 
general. A plan that is required to change its funding method to comply 
with Sec. 1.412(c)(3)-1 may elect to charge and credit the funding 
standard account as provided in this paragraph. An election under this 
paragraph shall be irrevocable.
    (2) Credit in year of change. In the plan year of the change in 
method the funding standard account may be credited with an amount not 
in excess of 0.8 multiplied by the excess (if any) of--
    (i) The normal cost under the new method plus the amortization 
charge (or minus the amortization credit) computed as described in 
Sec. 1.412(c)(3)-2(c)(2), over
    (ii) The normal cost under the prior method, for the plan year of 
the change in method.
    (3) Credits in the next three years. In the three years following 
the year of the change the funding standard account may be credited with 
an amount not in excess of 0.6, 0.4, and 0.2 respectively in the first, 
second, and third years, multiplied by either of the following amounts, 
computed as of the last day of the year of credit--
    (i) The excess described in Sec. 1.412(c)(3)-2(d)(2) multiplied by a 
fraction (not greater than 1), the numerator of which is the number of 
participants in the year of the credit and the denominator of which is 
the number of participants in the year of the change, or, at the option 
of the plan,
    (ii) The excess (if any) in the year of credit of--
    (A) The net charge to the funding standard account based on the new 
method, over
    (B) The net charge to the funding standing account based on the 
prior method.
    (4) Computational rules. For purposes of the calculation described 
in Sec. 1.412(c)(3)-2(d)(3)(ii), the net charge is the excess of charges 
under section 412(b)(2) (A) and (B) over the credits under section 
412(b)(3)(B) (including the charge or credit described in 
Sec. 1.412(c)(3)-2(c)) which would be required using the actuarial 
assumptions and plan benefit structure in effect on the last day of the 
plan year of change.
    (5) Fifteen-year amortization of credits. The funding standard 
account shall be charged with 15-year amortization of each credit 
described in Sec. 1.412(c)(3)-2(d) (2) and (3) beginning in the year 
following each such credit.
    (6) Manner of election. An election under this paragraph shall be 
made by the claiming of the credits described in Sec. 1.412(c)(3)-2(d) 
(2) and (3) on Schedule B to Form 5500 and by filing such other 
information as may be required by the Commissioner.
    (e) Effect on shortfall method. The charges and credits described in 
this section apply in the shortfall method to the annual computation 
charge described in Sec. 1.412(c)(1)-2(d). The amounts described in 
Sec. 1.412(c)(3)-2(d) shall be determined before the application of the 
shortfall method.

(Sec. 3(31) of the Employee Retirement Income Security Act of 1974 (88 
Stat. 837; 29 U.S.C. 1002) and sec. 7805 of the Internal Revenue Code of 
1954 (68A Stat. 917; 26 U.S.C. 7805))

[T.D. 7746, 45 FR 86432, Dec. 31, 1980]



Sec. 1.412(i)-1  Certain insurance contract plans.

    (a) In general. Under section 412(h)(2) of the Internal Revenue Code 
of 1954, as

[[Page 573]]

added by section 1013(a) of the Employee Retirement Income Security Act 
of 1974 (88 Stat. 914) (hereinafter referred to as ``the Act''), an 
insurance contract plan described in section 412(i) for a plan year is 
not subject to the minimum funding requirements of section 412 for that 
plan year. Consequently, if an individual or group insurance contract 
plan satisfies all of the requirements of paragraph (b)(2) or (c)(2) of 
this section, whichever are applicable, for the plan year, the plan is 
not subject to the requirements of section 412 for that plan year. The 
effective date for section 412 of the Code is determined under section 
1017 of the Act. In general, in the case of a plan which was not in 
existence on January 1, 1974, this section applies for plan years 
beginning after September 2, 1974, and in the case of a plan in 
existence on January 1, 1974, to plan years beginning after December 31, 
1975.
    (b) Individual insurance contract plans. (1) An individual insurance 
contract plan is described in section 412(i) during a plan year if the 
plan satisfies the requirements of paragraph (b)(2) of this section for 
the plan year.
    (2) The requirements of this paragraph are:
    (i) The plan must be funded exclusively by the purchase from an 
insurance company or companies (licensed under the law of a State or the 
District of Columbia to do business with the plan) of individual annuity 
or individual insurance contracts, or a combination thereof. The 
purchase may be made either directly by the employer or through the use 
of a custodial account or trust. A plan shall not be considered to be 
funded otherwise than exclusively by the purchase of individual annuity 
or individual insurance contracts merely because the employer makes a 
payment necessary to comply with the provisions of section 411(c)(2) 
(relating to accrued benefit from employee contributions).
    (ii) The individual annuity or individual insurance contracts issued 
under the plan must provide for level annual, or more frequent, premium 
payments to be paid under the plan for the period commencing with the 
date each individual participating in the plan became a participant and 
ending not later than the normal retirement age for that individual or, 
if earlier, the date the individual ceases his participation in the 
plan. Premium payments may be considered to be level even though items 
such as experience gains and dividends are applied against premiums. In 
the case of an increase in benefits, the contracts must provide for 
level annual payments with respect to such increase to be paid for the 
period commencing at the time the increase becomes effective. If payment 
commences on the first payment date under the contract occurring after 
the date an individual becomes a participant or after the effective date 
of an increase in benefits, the requirements of this subdivision will be 
satisfied even though payment does not commence on the date on which the 
individual's participation commenced or on the effective date of the 
benefit increase, whichever is applicable. If an individual accrues 
benefits after his normal retirement age, the requirements of this 
subdivision are satisfied if payment is made at the time such benefits 
accrue. If the provisions required by this subdivision are set forth in 
a separate agreement with the issuer of the individual contracts, they 
need not be included in the individual contracts.
    (iii) The benefits provided by the plan for each individual 
participant must be equal to the benefits provided under his individual 
contracts at his normal retirement age under the plan provisions.
    (iv) The benefits provided by the plan for each individual 
participant must be guaranteed by the life insurance company, described 
in paragraph (b)(2)(i) of this section, issuing the individual contracts 
to the extent premiums have been paid.
    (v) Except as provided in the following sentence, all premiums 
payable for the plan year, and for all prior plan years, under the 
insurance or annuity contracts must have been paid before lapse. If the 
lapse has occurred during the plan year, the requirements of this 
subdivision will be considered to have been met if reinstatement of the 
insurance policy, under which the individual insurance contracts are 
issued, occurs during the year of the lapse and before

[[Page 574]]

distribution is made or benefits commence to any participant whose 
benefits are reduced because of the lapse.
    (vi) No rights under the individual contracts may have been subject 
to a security interest at any time during the plan year. This 
subdivision shall not apply to contracts which have been distributed to 
participants if the security interest is created after the date of 
distribution.
    (vii) No policy loans, including loans to individual participants, 
on any of the individual contracts may be outstanding at any time during 
the plan year. This subdivision shall not apply to contracts which have 
been distributed to participants if the loan is made after the date of 
distribution. An application of funds by the issuer to pay premiums due 
under the contracts shall be deemed not to be a policy loan if the 
amount of the funds so applied, and interest thereon, is repaid during 
the plan year in which the funds are applied and before distribution is 
made or benefits commence to any participant whose benefits are reduced 
because of such application.
    (c) Group insurance contract plans. (1) A group insurance contract 
plan is described in section 412(i) during a plan year if the plan 
satisfies the requirements of subparagraph (2) for the plan year.
    (2) The requirements of this subparagraph are:
    (i) The plan must be funded exclusively by the purchase from an 
insurance company or companies, described in paragraph (b)(2)(i) of this 
section, of group annuity or group insurance contracts, or a combination 
thereof. The purchase may be made either directly by the employer or 
through the use of a custodial account or trust. A plan shall not be 
considered to be funded otherwise than exclusively by the purchase of 
group annuity or group insurance contracts merely because the employer 
makes a payment necessary to comply with the provisions of section 411 
(c)(2) (relating to accrued benefit derived from employee 
contributions).
    (ii) In the case of a plan funded by a group insurance contract or a 
group annuity contract the requirements of paragraph (b)(2)(ii) of this 
section must be satisfied by the group contract issued under the plan. 
Thus, for example, each individual participant's benefits under the 
group contract must be provided for by level annual, or more frequent, 
payments equivalent to the payments required to satisfy such paragraph. 
The requirements of this subdivision will not be satisfied if benefits 
for any individual are not provided for by level payments made on his 
behalf under the group contract.
    (iii) The group annuity or group insurance contract must satisfy the 
requirements of clauses (iii), (iv), (v), (vi), and (vii) of paragraph 
(b)(2). Thus, for example, each participant's benefits provided by the 
plan must be equal to his benefits provided under the group contract at 
his normal retirement age.
    (iv)(A) If the plan is funded by a group annuity contract, the value 
of the benefits guaranteed by the insurance company issuing the contract 
under the plan with respect to each participant under the contract must 
not be less than the value of such benefits which the cash surrender 
value would provide for that participant under any individual annuity 
contract plan satisfying the requirements of paragraph (b) and approved 
for sale in the State where the principal office of the plan is located.
    (B) If the plan is funded by a group insurance contract, the value 
of the benefits guaranteed by the insurance company issuing the contract 
under the plan with respect to each participate under the contract must 
not be less than the value of such benefits which the cash surrender 
value would provide for that participant under any individual insurance 
contract plan satisfying the requirements of paragraph (b) and approved 
for sale in the State where the principal office of the plan is located.
    (v) Under the group annuity or group insurance contract, premiums or 
other consideration received by the insurance company (and, if a 
custodial account or trust is used, the custodian or trustee thereof) 
must be allocated to purchase individual benefits for participants under 
the plan. A plan which maintains unallocated funds in an auxiliary trust 
fund or which provides that an insurance company will maintain

[[Page 575]]

unallocated funds in a separate account, such as a group deposit 
administration contract, does not satisfy the requirements of this 
subdivision.
    (d) Combination of plans. A plan which is funded by a combination of 
individual contracts and a group contract shall be treated as a plan 
described in section 412 (i) for the plan year if the combination, in 
the aggregate, satisfies the requirements of this section for the plan 
year.

[T.D. 7746, 45 FR 47676, July 16, 1980; 45 FR 50563, July 30, 1980]



Sec. 1.413-1  Special rules for collectively bargained plans.

    (a) Application of section 413(b) to certain collectively bargained 
plans--(1) In general. Section 413(b) sets forth special rules 
applicable to certain pension, profit-sharing, and stock bonus plans 
(and each trust which is a part of such a plan), hereinafter referred to 
as ``section 413(b) plans'', described in paragraph (a)(2) of this 
section. Notwithstanding any other provision of the Code, a section 
413(b) plan is subject to the special rules of section 413(b) (1) 
through (8) and paragraphs (b) through (i) of this section.
    (2) Requirements. Section 413(b) applies to a plan (and each trust 
which is a part of such plan) if the plan is a single plan which is 
maintained pursuant to one or more agreements which the Secretary of 
Labor finds to be a collective bargaining agreement between employee 
representatives and one or more employers. A plan which provides 
benefits for employees of more than one employer is considered a single 
plan subject to the requirements of section 413(b) and this section if 
the plan is considered a single plan for purposes of applying section 
414(l) (see Sec. 1.414(l)-1(b)(1)). For purposes of determining whether 
one or more plans (or agreements) are a single plan, under sections 
413(a) and 414(l), it is irrelevant that there are in form two or more 
separate plans (or agreements). For example, a single plan will be 
considered to exist where agreements are entered into separately by a 
national labor organization (or one or more local units of such 
organization), on one hand, and individual employers, on the other hand, 
if the plan is considered a single plan for purposes of applying section 
414(l).
    (3) Additional rules and effective dates. (i) If a plan is a section 
413(b) plan at a relevant time, the rules of section 413(b) and this 
section apply, and the rules of section 413(c) and Sec. 1.413-2 do not 
apply to the plan.
    (ii) The qualification of a section 413(b) plan, at any relevant 
time, under section 401(a), 403(a), or 405(a), as modified by sections 
413(b) and this section, is determined with respect to all employers 
maintaining the plan. Consequently, the failure by one employer 
maintaining the plan (or by the plan itself) to satisfy an applicable 
qualification requirement will result in the disqualification of the 
plan for all employers maintaining the plan.
    (iii) Except as otherwise provided, section 413 (a) and (b) and this 
section apply to a plan for plan years beginning after December 31, 
1953.
    (b) Participation. Section 410 and the regulations thereunder shall 
be applied as if all employees of each of the employers who are parties 
to the collective-bargaining agreement and all such employees who are 
subject to the same benefit computation formula under the plan were 
employed by a single employer.
    (c) Discrimination, etc.--(1) General rule. Section 401(a)(4) 
(relating to prohibited discrimination) and section 411(d)(3) (relating 
to vesting required on termination, partial termination, or 
discontinuance of contributions) shall be applied as if all the 
participants in the plan, who are subject to the same benefit 
computation formula and who are employed by employers who are parties to 
the collective bargaining agreement, are employed by a single employer.
    (2) Application of discrimination rules. Under section 401(a)(4) and 
the regulations thereunder a plan is not qualified unless the 
contributions or benefits provided under the plan do not discriminate in 
favor of officers, shareholders or highly compensated employees 
(hereinafter referred to collectively as ``the prohibited group''). The 
presence or absence of such discrimination under a plan to which this 
section applies at any time shall not be determined on an employer-by-
employer

[[Page 576]]

basis, but rather by testing separately each group of employees who are 
subject to the same benefit computation formula to determine if there is 
discrimination within such group. Consequently, discrimination in 
contributions or benefits among two or more different groups or among 
employees in different groups covered by the plan may be present without 
causing the plan to be disqualified. However, the presence of prohibited 
discrimination within one such group will result in the disqualification 
of the plan for all groups. Section 401(a)(4) and the regulations 
thereunder provide rules relating to the determination of which 
employees are members of the prohibited group and to the determination 
of discrimination in contributions or benefits which are applicable to a 
plan to which this section applies. The determination of whether or not 
an individual employee is a highly compensated employee shall be based 
on the relationship of the compensation of the employee to the 
compensation of all the other employees of all employers who are 
maintaining the plan and have employees covered under the same benefit 
computation formula, whether or not such other employees are covered by 
the plan or are covered under the same benefit computation formula, 
rather than to the compensation of all the other employees of the 
employer of such individual employee.
    (3) Application of termination, etc. rules. Section 411(d)(3) and 
the regulations thereunder (relating to vesting required in the case of 
a termination, partial termination, or complete discontinuance of 
contributions) apply to a plan subject to the provisions of this 
section. The requirements of section 411(d)(3) shall be applied as if 
all participants in the plan who are subject to the same benefit 
computation formula and who are employed by employers who are parties to 
the collective bargaining agreement are employed by a single employer. 
The determination of whether or not there is a termination, partial 
termination, or complete discontinuance of contributions shall be made 
separately for each such group of participants who are treated as 
employed by a single employer. Consequently, if there are two or more 
groups of participants, a termination, partial termination, or complete 
discontinuance can take place under a plan with respect to one group of 
participants but not with respect to another such group of participants 
or for the entire plan. See Sec. 1.411(d)-2 for rules prescribed under 
section 411(d)(3).
    (4) Effective dates and transitional rules. (i) Section 413(b)(2) 
and this paragraph apply to a plan for plan years beginning after 
December 31, 1953.
    (ii) In applying the rules of this paragraph to a plan for plan 
years to which section 411 does not apply, section 401(a)(7) (as in 
effect on September 1, 1974) shall be substituted for section 411(d)(3). 
See Sec. 1.401-6 for rules prescribed under section 401(a)(7) as in 
effect on September 1, 1974. See Sec. 1.411(a)-2 for the effective dates 
of section 411.
    (5) Examples. The provisions of this paragraph are illustrated by 
the following examples:

    Example (1). Plan A is a defined benefit plan subject to the 
provisions of this section and covers two groups of participants, local 
unions 1 and 2. Each local union has negotiated its own bargaining 
agreement with employers X, Y, and Z to provide its own benefit 
computation formula. The following table indicates the composition of 
the plan A participants:

------------------------------------------------------------------------
                               Employer   Employer   Employer           
                                  X          Y          Z        Total  
------------------------------------------------------------------------
Local union 1...............         20         10         70        100
Local union 2...............         30         70        100        200
------------------------------------------------------------------------


[[Page 577]]

Under the rules of subparagraph (2) of this paragraph, the determination 
of whether contributions or benefits provided under the plan 
discriminate in favor of the prohibited group is made by applying the 
rules of section 401(a)(4) separately to participants who are members of 
local union 1 and local union 2. Thus, plan A will satisfy the 
qualification requirements of section 401(a)(4) if, within local union 1 
and local union 2, respectively, plan benefits do not discriminate in 
favor of participants who are prohibited group employees within local 
union 1 and local union 2. Under the rules of subparagraph (2) of this 
paragraph, the determination under section 401(a)(4) of whether or not 
any individual employee, included within the 300 participants in plan A, 
is a highly compensated employee is based on the relationship of the 
compensation of such individual employee to the compensation of all the 
employees of Employers X, Y, and Z, whether or not such employees are 
participants in plan A. Thus, if there are 20 participants who are 
prohibited group employees within the 100 participants of local union 1, 
discrimination is determined by comparing the benefits of the 20 
prohibited group participants to the benefits of the other 80 
participants within local union 1. The same comparison would have to be 
made for the local union 2 participants between the prohibited group 
participants and the other participants in local union 2. Discrimination 
in benefits, if any, between the participants in local union 1 and local 
union 2, or among the employees of X, Y, or Z, would not affect the 
qualification of plan A under section 401(a)(4).
    Example (2). Assume the same facts as in example (1). Employer X 
withdraws from the plan. Under subparagraph (3) of this paragraph, 
whether or not as a result of the withdrawal there is a partial 
termination under section 411(d)(3) is to be determined by applying the 
requirements of such section separately to the local union 1 and local 
union 2 participants. See Sec. 1.411(d)-2 for the requirements relating 
to partial terminations. The application of such requirements raises the 
following possibilities with respect to the plan: (1) A partial 
termination as to local union 1, (2) a partial termination as to local 
union 2, (3) a partial termination as to both local unions 1 and 2, or 
(4) no partial termination for either local union.
    Example (3). Assume the same facts as in example (1). Plan A is 
amended to cease future benefit accruals under the plan for local union 
1 participants. Under subparagraph (3) of the paragraph, whether or not 
as a result of the cessation there is a partial termination under 
section 411(d)(3) is to be determined by applying the requirements of 
such section separately to the local union 1 and local union 2 
participants.
    Example (4). Plan A is a defined benefit plan that provides for two 
normal retirement benefits, X and 2X. A participant receives benefit X 
if the collective bargaining agreement covering his employment provides 
for a contribution rate, M. If such agreement provides for a 
contribution rate of N, the participant receives benefit 2X. Benefit X 
and benefit 2X constitute separate benefit computation formulas.
    Example (5). Plan B is a defined benefit plan that provides for a 
normal retirement benefit, X. Benefit X is provided for all plan 
participants even though there are two collective bargaining agreements 
providing for different contribution rates, M and N. Plan B has a single 
benefit computation formula, even though there are two contribution 
rates.

    (d) Exclusive benefit. Under section 401(a), a plan is not qualified 
unless the plan is for the exclusive benefit of the employees (and their 
beneficiaries) of the employer establishing and maintaining the plan. 
Other qualification requirements under section 401(a) require the 
application of the exclusive benefit rule (for example, section 
401(a)(2), which precludes diversion of plan assets). For purposes of 
applying the requirements of section 401(a) in determining whether a 
plan subject to this section is, with respect to each employer 
establishing and maintaining the plan, for the exclusive benefit of its 
employees (and their beneficiaries), all of the employees participating 
in the plan shall be treated as employees of each such employer. Thus, 
for example, contributions by employer A to a plan subject to this 
section could be allocated to employees of other employers maintaining 
the plan without violating the requirements of section 401(a)(2), 
because all the employees participating in the plan are deemed to be 
employees of A.
    (e) Vesting. Section 411 (other than section 411(d)(3) relating to 
termination or partial termination; discontinuance of contributions) and 
the regulations thereunder shall be applied as if all employers who have 
been parties to the collective-bargaining agreement constituted a single 
employer. The application of any rules with respect to breaks in service 
under section 411 shall be made under regulations prescribed by the 
Secretary of Labor. Thus, for example, all the hours which an employee 
worked for each employer in a collectively-bargained plan would

[[Page 578]]

be aggregated in computing the employee's hours of service under the 
plan. See also 29 CFR Part 2530 (Department of Labor regulations 
relating to minimum standards for employee pension benefit plans.)
    (f)--(h) [Reserved]
    (i) Employees of labor unions--(1) General rule. For purposes of 
section 413(b) and this section, employees of employee representatives 
shall be treated as employees of an employer establishing and 
maintaining a plan to which section 413(b) and this section apply if, 
with respect to the employees of such representatives, the plan 
satisfies the nondiscrimination requirements of section 401(a)(4) 
(determined without regard to section 413(b)(2)) and the minimum 
participation and coverage requirements of section 410 (determined 
without regard to section 413(b)(1)). For purposes of the preceding 
sentence, the plan and any affiliated employee health or welfare plan 
shall be deemed to be an employee representative. If employees of 
employee representatives, the plan, or an affiliated employee health or 
welfare plan are covered by the plan and are not treated as employees of 
an employer establishing and maintaining the plan under the provisions 
of this paragraph, the plan fails to satisfy the qualification 
requirements of section 401(a). In addition, in order for such a plan to 
be qualified, the plan must satisfy the requirements of section 413(b) 
(1) and (2), relating to participation and discrimination, respectively; 
see paragraphs (b) and (c) of this section. For purposes of this 
paragraph, an affiliated health or welfare plan is a health or welfare 
plan that is maintained under the same collective bargaining agreement 
or agreements, and that covers the same membership.
    (2) Effective dates and transitional rules. (i) Section 413(b)(8) 
and this paragraph apply to a plan for plan years beginning after 
December 31, 1953.
    (ii) In applying the rules of this paragraph to a plan for plan 
years to which section 410 does not apply, section 401(a)(3) (as in 
effect on September 1, 1974) shall be substituted for section 410. See 
Sec. 1.401-3 for rules prescribed under section 401(a)(3) as in effect 
on September 1, 1974. See Sec. 1.410(a)-2 for the effective dates of 
section 410.
    (3) Examples. The provisions of this paragraph are illustrated by 
the following examples:

    Example (1). Plan A is a defined benefit plan, maintained pursuant 
to a collective bargaining agreement between employers, X, Y, and Z and 
labor union, L, which covers members of L employed by X, Y, and Z. In 
1978, plan A is amended to cover, under the same benefit formula, all 
five employees of L who have satisfied the minimum age and service 
requirements of the plans (age 25 and 1 year of service). Assume that 
plan A is subject to section 413(b) and satisfies the requirements of 
section 413(b) (1) and (2). Assume further that with respect to 
employees of L, plan A (i) satisfies the nondiscrimination requirements 
of section 401(a)(4), (ii) meets the minimum participation requirements 
of section 410(a), and (iii) meets the minimum coverage requirements of 
section 410(b)(1)(A). Under the rules of subparagraph (1) of this 
paragraph, because such requirements are all satisfied, the employees of 
L are treated as employees of an employer establishing and maintaining 
plan A.
    Example (2). Assume the same facts as example (1), except that plan 
A is amended to cover only one of the five employees of L, none of whom 
is covered by any other plan. Assume further that, under plan A, L does 
not satisfy the minimum percentage coverage requirement of section 
410(b)(1)(A) with respect to employees of L. Assume further that the 
compensation of the one L employee who is covered by the plan is such 
that he is highly compensated relative to the four employees of L not 
covered by the plan. Consequently, L does not satisfy the minimum 
coverage requirements of section 410(b)(1)(B), with respect to employees 
of L. Under the rules of subparagraph (1) of this paragraph, the 
employees of L cannot be treated as employees of an employer 
establishing and maintaining the A plan because such coverage 
requirements are not satisfied by L. Consequently, the A plan fails to 
satisfy the qualification requirements of section 401(a).

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42340, Aug. 23, 1977, as amended by 42 FR 47198, Sept. 
20, 1977; T.D. 7654, 44 FR 65063, Nov. 9, 1979]



Sec. 1.413-2  Special rules for plans maintained by more than one employer.

    (a) Application of section 413(c)--(1) In general. Section 413(c) 
describes certain plans (and each trust which is a part of any such 
plan) hereinafter referred to as ``section 413(c) plans.'' A plan (and 
each trust which is a part of such plan) is deemed to be a section 
413(c) plan if it is described in subparagraph (2) of

[[Page 579]]

this paragraph. Notwithstanding any other provision of the code (not 
specifically in conflict with the special rules hereinafter mentioned), 
a section 413(c) plan is subject to the special rules of section 413(c) 
(1) through (6) and paragraphs (b) through (g) of this section.
    (2) Section 413(c) plan. A plan (and each trust which is a part of 
such plan) is a section 413(c) plan if--
    (i) The plan is a single plan, within the meaning of section 413(a) 
and Sec. 1.413-1(a)(2), and
    (ii) The plan is maintained by more than one employer.

For purposes of subdivision (ii) of this subparagraph, the number of 
employers maintaining the plan is determined by treating any employers 
described in section 414(b) (relating to a controlled group of 
corporations) or any employers described in section 414(c) (relating to 
trades or businesses under common control), whichever is applicable, as 
if such employers are a single employer. See Sec. 1.411(a)-5(b)(3) for 
rules relating to the time when an employer maintains a plan. A master 
or prototype plan is not a section 413(c) plan unless such a plan is 
described in this subparagraph. Similarly, the mere fact that a plan, or 
plans, utilizes a common trust fund or otherwise pools plan assets for 
investment purposes does not, by itself, result in a particular plan 
being treated as a section 413(c) plan.
    (3) Additional rules. (i) If a plan is a collectively bargained plan 
described in Sec. 1.413-1(a), the rules of section 413(c) and this 
section do not apply, and the rules of section 413(b) and Sec. 1.413-1 
do apply to the plan.
    (ii) The special rules of section 413(b)(1) and Sec. 1.413-1(b) 
relating to the application of section 410, other than the rules of 
section 410(a), do not apply to a section 413(c) plan. Thus, for 
example, the minimum coverage requirements of section 410(b) are 
generally applied to a section 413(c) plan on an employer-by-employer 
basis, taking into account the generally applicable rules such as 
section 401(a)(5) and section 414 (b) and (c).
    (iii) The special rules of section 413(b)(2) and Sec. 1.413-1(c) 
(relating to (A) section 401(a)(4) and prohibited discrimination, and 
(B) 411(d)(3) and vesting required on termination, partial termination, 
or discontinuance of contributions) do not apply to a section 413(c) 
plan. Thus, for example, the determination of whether or not there is a 
termination, within the meaning of section 411(d)(3), of a section 
413(c) plan is made solely by reference to the rules of sections 
411(d)(3) and 413(c)(3).
    (iv) The qualification of a section 413(c) plan, at any relevant 
time, under section 401(a), 403(a) or 405(a), as modified by section 
413(c) and this section, is determined with respect to all employers 
maintaining the section 413(c) plan. Consequently, the failure by one 
employer maintaining the plan (or by the plan itself) to satisfy an 
applicable qualification requirement will result in the disqualification 
of the section 413(c) plan for all employers maintaining the plan.
    (4) Effective dates. Except as otherwise provided, section 413(c) 
and this section apply to a plan for plan years beginning after December 
31, 1953.
    (b) Participation. Section 410(a) and the regulations thereunder 
shall be applied as if all employees of each of the employers who 
maintain the plan were employed by a single employer.
    (c) Exclusive benefit. In the case of a plan subject to this 
section, the exclusive benefit requirements of section 401(a) shall be 
applied to the plan in the same manner as under section 413(b)(3) and 
Sec. 1.413-1(d).
    (d) Vesting. Section 411 and the regulations thereunder shall be 
applied as if all employers who maintain the plan constituted a single 
employer. The application of any rules with respect to breaks in service 
under section 411 shall be made under regulations prescribed by the 
Secretary of Labor. Thus, for example, all the hours which an employee 
worked for each employer maintaining the plan would be aggregated in 
computing the employee's hours of service under the plan. See also 29 
CFR Part 2530 (Department of Labor regulations relating to minimum 
standards for employee pension benefit plans).

(Sec. 411 (88 Stat. 901; 26 U.S.C. 411))

[T.D. 7501, 42 FR 42340, Aug. 23, 1977, as amended by 42 FR 47198, Sept. 
20, 1977; T.D. 7654, 44 FR 65065, Nov. 9, 1979]

[[Page 580]]



Sec. 1.414(b)-1  Controlled group of corporations.

    (a) Defintion of controlled group of corporations. For purposes of 
this section, the term ``controlled group of corporations'' has the same 
meaning as is assigned to the term in section 1563(a) and the 
regulations thereunder, except that (1) the term ``controlled group of 
corporations'' shall not include an ``insurance group'' described in 
section 1563(a)(4), and (2) section 1563(e)(3)(C) (relating to stock 
owned by certain employees' trusts) shall not apply. For purposes of 
this section, the term ``members of a controlled group'' means two or 
more corporations connected through stock ownership described in section 
1563(a) (1), (2), or (3), whether or not such corporations are 
``component members of a controlled group'' within the meaning of 
section 1563(b). Two or more corporations are members of a controlled 
group at any time such corporations meet the requirements of section 
1563(a) (as modified by this paragraph). For purposes of this section, 
if a corporation is a member of more than one controlled group of 
corporations, such corporation shall be treated as a member of each 
controlled group.
    (b) Single plan adopted by two or more members. If two or more 
members of a controlled group of corporations adopt a single plan for a 
plan year, then the minimum funding standard provided in section 412, 
the tax imposed by section 4971, and the applicable limitations provided 
by section 404(a) shall be determined as if such members were a single 
employer. In such a case, the amount of such items and the allocable 
portion attributable to each member shall be determined in the manner 
provided in regulations under sections 412, 4971, and 404(a).
    (c) Cross reference. For rules relating to the application of 
sections 401, 408(k), 410, 411, 415, and 416 with respect to two or more 
trades or businesses which are under common control, see section 414(c) 
and the regulations thereunder.

[T.D. 8179, 53 FR 6605, Mar. 2, 1988]



Sec. 1.414(c)-1  Commonly controlled trades or businesses.

    For purposes of applying the provisions of sections 401 (relating to 
qualified pension, profit-sharing, and stock bonus plans), 408(k) 
(relating to simplified employee pensions), 410 (relating to minimum 
participation standards), 411 (relating to minimum vesting standards), 
415 (relating to limitations on benefits and contributions under 
qualified plans), and 416 (relating to top-heavy plans), all employees 
of two or more trades or businesses under common control within the 
meaning of Sec. 1.414(c)-2 for any period shall be treated as employed 
by a single employer. See sections 401, 408(k), 410, 411, 415, and 416 
and the regulations thereunder for rules relating to employees of trades 
or businesses which are under common control. See Sec. 1.414(c)-5 for 
effective date.

[T.D. 8179, 53 FR 6606, Mar. 2, 1988]



Sec. 1.414(c)-2  Two or more trades or businesses under common control.

    (a) In general. For purposes of this section, the term ``two or more 
trades or businesses under common control'' means any group of trades or 
businesses which is either a ``parent-subsidiary group of trades or 
businesses under common control'' as defined in paragraph (b) of this 
section, a ``brother-sister group of trades or businesses under common 
control'' as defined in paragraph (c) of this section, or a ``combined 
group of trades or businesses under common control'' as defined in 
paragraph (d) of this section. For purposes of this section and 
Secs. 1.414(c)-3 and 1.414(c)-4, the term ``organization'' means a sole 
proprietorship, a partnership (as defined in section 7701(a)(2)), a 
trust, an estate, or a corporation.
    (b) Parent-subsidiary group of trades or businesses under common 
control--(1) In general. The term ``parent-subsidiary group of trades or 
businesses under common control'' means one or more chains of 
organizations conducting trades or businesses connected through 
ownership of a controlling interest with a common parent organization 
if--

[[Page 581]]

    (i) A controlling interest in each of the organizations, except the 
common parent organization, is owned (directly and with the application 
of Sec. 1.414(c)-4(b)(1), relating to options) by one or more of the 
other organizations; and
    (ii) The common parent organization owns (directly and with the 
application of Sec. 1.414(c)-4(b)(1), relating to options) a controlling 
interest in at least one of the other organizations, excluding, in 
computing such controlling interest, any direct ownership interest by 
such other organizations.
    (2) Controlling interest defined--(i) Controlling interest. For 
purposes of paragraphs (b) and (c) of this section, the phrase 
``controlling interest'' means:
    (A) In the case of an organization which is a corporation, ownership 
of stock possessing at least 80 percent of total combined voting power 
of all classes of stock entitled to vote of such corporation or at least 
80 percent of the total value of shares of all classes of stock of such 
corporation;
    (B) In the case of an organization which is a trust or estate, 
ownership of an actuarial interest of at least 80 percent of such trust 
or estate;
    (C) In the case of an organization which is a partnership, ownership 
of at least 80 percent of the profits interest or capital interest of 
such partnership; and
    (D) In the case of an organization which is a sole proprietorship, 
ownership of such sole proprietorship.
    (ii) Actuarial interest. For purposes of this section, the actuarial 
interest of each beneficiary of trust or estate shall be determined by 
assuming the maximum exercise of discretion by the fiduciary in favor of 
such beneficiary. The factors and methods prescribed in Sec. 20.2031-7 
or, for certain prior periods, Sec. 20.2031-7A (Estate Tax Regulations) 
for use in ascertaining the value of an interest in property for estate 
tax purposes shall be used for purposes of this subdivision in 
determining a beneficiary's actuarial interest.
    (c) Brother-sister group of trades or businesses under common 
control--(1) In general. The term ``brother-sister group of trades or 
businesses under common control'' means two or more organizations 
conducting trades or businesses if (i) the same five or fewer persons 
who are individuals, estates, or trusts own (directly and with the 
application of Sec. 1.414(c)-4) a controlling interest in each 
organization, and (ii) taking into account the ownership of each such 
person only to the extent such ownership is identical with respect to 
each such organization, such persons are in effective control of each 
organization. The five or fewer persons whose ownership is considered 
for purposes of the controlling interest requirement for each 
organization must be the same persons whose ownership is considered for 
purposes of the effective control requirement.
    (2) Effective control defined. For purposes of this paragraph, 
persons are in ``effective control'' of an organization if--
    (i) In the case of an organization which is a corporation, such 
persons own stock possessing more than 50 percent of the total combined 
voting power of all classes of stock entitled to vote or more than 50 
percent of the total value of shares of all classes of stock of such 
corporation;
    (ii) In the case of an organization which is a trust or estate, such 
persons own an aggregate actuarial interest of more than 50 percent of 
such trust or estate;
    (iii) In the case of an organization which is a partnership, such 
persons own an aggregate of more than 50 percent of the profits interest 
or capital interest of such partnership; and
    (iv) In the case of an organization which is a sole proprietorship, 
one of such persons owns such sole proprietorship.
    (d) Combined group of trades or businesses under common control. The 
term ``combined group of trades or businesses under common control'' 
means any group of three or more organizations, if (1) each such 
organization is a member of either a parent-subsidiary group of trades 
or businesses under common control or a brother-sister group of trades 
or businesses under common control, and (2) at least one such 
organization is the common parent organization of a parent-subsidiary 
group of trades or businesses under common control and is also a member

[[Page 582]]

of a brother-sister group of trades or businesses under common control.
    (e) Examples. The definitions of parent-subsidiary group of trades 
or businesses under common control, brother-sister group of trades or 
businesses under common control, and combined group of trades or 
businesses under common control may be illustrated by the following 
examples.

    Example (1). (a) The ABC partnership owns stock possessing 80 
percent of the total combined voting power of all classes of stock 
entitled to voting of S corporation. ABC partnership is the common 
parent of a parent-subsidiary group of trades or businesses under common 
control consisting of the ABC partnership and S Corporation.
    (b) Assume the same facts as in (a) and assume further that S owns 
80 percent of the profits interest in the DEF Partnership. The ABC 
Partnership is the common parent of a parent-subsidiary group of trades 
or businesses under common control consisting of the ABC Partnership, S 
Corporation, and the DEF Partnership. The result would be the same if 
the ABC Partnership, rather than S, owned 80 percent of the profits 
interest in the DEF Partnership.
    Example (2). L Corporation owns 80 percent of the only class of 
stock of T Corporation, and T, in turn, owns 40 percent of the capital 
interest in the GHI Partnership. L also owns 80 percent of the only 
class of stock of N Corporation and N, in turn, owns 40 percent of the 
capital interest in the GHI Partnership. L is the common parent of a 
parent-subsidiary group of trades or businesses under common control 
consisting of L Corporation, T Corporation, N Corporation, and the GHI 
Partnership.
    Example (3). ABC Partnership owns 75 percent of the only class of 
stock of X and Y Corporations; X owns all the remaining stock of Y, and 
Y owns all the remaining stock of X. Since interorganization ownership 
is excluded (that is, treated as not outstanding) for purposes of 
determining whether ABC owns a controlling interest of at least one of 
the other organizations, ABC is treated as the owner of stock possessing 
100 percent of the voting power and value of all classes of stock of X 
and of Y for purposes of paragraph (b)(1)(ii) of this section. 
Therefore, ABC is the common parent of a parent-subsidiary group of 
trades or businesses under common control consisting of the ABC 
Partnership, X Corporation, and Y Corporation.
    Example (4). Unrelated individuals A, B, C, D, E, and F own an 
interest in sole proprietorship A, a capital interest in the GHI 
Partnership, and stock of corporations M, W, X, Y, and Z (each of which 
has only one class of stock outstanding) in the following proportions:

                                                                      Organizations                                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Individuals                             A            GHI            M             W             X             Y             Z     
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.....................................................     100%           50%          100%           60%           40%           20%           60%     
B.....................................................       --           40%            --           15%           40%           50%           30%     
C.....................................................       --            --            --            --           10%           10%           10%     
D.....................................................       --            --            --           25%            --           20%            --     
E.....................................................       --           10%            --            --           10%            --            --     
                                                       -------------------------------------------------------------------------------------------------
                                                           100%          100%          100%          100%          100%          100%          100%     
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Under these facts the following four brother-sister groups of trades 
or businesses under common control exist: GHI, X and Z; X, Y and Z; W 
and Y; A and M. In the case of GHI, X, and Z, for example, A and B 
together have effective control of each organization because their 
combined identical ownership of GHI, X and Z is greater than 50%. (A's 
identical ownership of GHI, X and Z is 40% because A owns at least a 40% 
interest in each organization. B's identical ownership of GHI, X and Z 
is 30% because B owns at least a 30% interest in each organization.) A 
and B (the persons whose ownership is considered for purposes of the 
effective control requirement) together own a controlling interest in 
each organization because they own at least 80% of the capital interest 
of partnership GHI and at least 80% of the total combined voting power 
of corporations X and Z. Therefore, GHI, X and Z comprise a brother-
sister group of trades or businesses under common control. Y is not a 
member of this group because neither the effective control requirement 
nor the 80% controlling interest requirement are met. (The effective 
control requirement is not met because A's and B's combined identical 
ownership in GHI, X, Y and Z (20% for A and 30% for B) does not exceed 
50%. The 80% controlling interest test is not met because A and B 
together only own 70% of the total combined voting power of the stock of 
Y.) A and M are not members of this group because B owns no interest in 
either organization and A's ownership of GHI, X and Z, considered alone, 
is less than 80%.
    Example (5). The outstanding stock of corporations U and V, which 
have only one class

[[Page 583]]

of stock outstanding, is owned by the following unrelated individuals:

                              Corporations                              
------------------------------------------------------------------------
                                                  U              V      
                Individuals                -----------------------------
                                              (percent)      (percent)  
------------------------------------------------------------------------
A.........................................       12             12      
B.........................................       12             12      
C.........................................       12             12      
D.........................................       12             12      
E.........................................       13             13      
F.........................................       13             13      
G.........................................       13             13      
H.........................................       13             13      
                                           -----------------------------
                                                100            100      
------------------------------------------------------------------------

Any group of five of the shareholders will own more than 50 percent of 
the stock in each corporation, in identical holdings. However, U and V 
are not members of a brother-sister group of trades or businesses under 
common control because at least 80 percent of the stock of each 
corporation is not owned by the same five or fewer persons.
    Example (6). A, an individual, owns a controlling interest in ABC 
Partnership and DEF Partnership. ABC, in turn, owns a controlling 
interest in X Corporation. Since ABC, DEF, and X are each members of 
either a parent-subsidiary group or a brother-sister group of trades or 
businesses under common control, and ABC is the common parent of a 
parent-subsidiary group of trades or businesses under common control 
consisting of ABC and X, and also a member of a brother-sister group of 
trades or businesses under common control consisting of ABC and DEF, ABC 
Partnership, DEF Partnership, and X Corporation are members of the same 
combined group of trades or businesses under common control.

[T.D. 8179, 53 FR 6606, Mar. 2, 1988, as amended by T.D. 8540, 59 FR 
30102, June 10, 1994]



Sec. 1.414(c)-3  Exclusion of certain interests or stock in determining control.

    (a) In general. For purposes of Sec. 1.414(c)-2 (b)(2)(i) and 
(c)(2), the term ``interest'' and the term ``stock'' do not include an 
interest which is treated as not outstanding under paragraph (b) of this 
section in the case of a parent-subsidiary group of trades or businesses 
under common control or under paragraph (c) of this section in the case 
of a brother-sister group of trades or businesses under common control. 
In addition, the term ``stock'' does not include treasury stock or 
nonvoting stock which is limited and preferred as to dividends. For 
definitions of certain terms used in this section, see paragraph (d) of 
this section.
    (b) Parent-subsidiary group of trades or businesses under common 
control--(1) In general. If an organization (hereinafter in this section 
referred to as ``parent organization'') owns (within the meaning of 
paragraph (b)(2) of this section)--
    (i) In the case of a corporation, 50 percent or more of the total 
combined voting power of all classes of stock entitled to vote or 50 
percent or more of the total value of shares of all classes of stock of 
such corporation.
    (ii) In the case of a trust or an estate, an actuarial interest 
(within the meaning of Sec. 1.414(c)-2(b)(2)(ii)) of 50 percent or more 
of such trust or estate, and
    (iii) In the case of a partnership, 50 percent or more of the 
profits or capital interest of such partnership, then for purposes of 
determining whether the parent organization or such other organization 
(hereinafter in this section referred to as ``subsidiary organization'') 
is a member of a parent-subsidiary group of trades or businesses under 
common control, an interest in such subsidiary organization excluded 
under paragraph (b) (3), (4), (5), or (6) of this section shall be 
treated as not outstanding.
    (2) Ownership. For purposes of paragraph (b)(1) of this section, a 
parent organization shall be considered to own an interest in or stock 
of another organization which it owns directly or indirectly with the 
application of Sec. 1.414(c)-4(b)(1) and--
    (i) In the case of a parent organization which is a partnership, a 
trust, or an estate, with the application of paragraphs (b) (2), (3), 
and (4) of Sec. 1.414(c)-4, and
    (ii) In the case of a parent organization which is a corporation, 
with the application of Sec. 1.414(c)-4(b)(4).
    (3) Plan of deferred compensation. An interest which is an interest 
in or stock of the subsidiary organization held by a trust which is part 
of a plan of deferred compensation (within the meaning of section 
406(a)(3) and the regulations thereunder) for the benefit of the 
employees of the parent organization or the subsidiary organization 
shall be excluded.
    (4) Principal owners, officers, etc. An interest which is an 
interest in or

[[Page 584]]

stock of the subsidiary organization owned (directly and with the 
application of Sec. 1.414(c)-4) by an individual who is a principal 
owner, officer, partner, or fiduciary of the parent organization shall 
be excluded.
    (5) Employees. An interest which is an interest in or stock of the 
subsidiary organization owned (directly and with the application of 
Sec. 1.414(c)-4) by an employee of the subsidiary organization shall be 
excluded if such interest or such stock is subject to conditions which 
substantially restrict or limit the employee's right (or if the employee 
constructively owns such interest or such stock, the direct or record 
owner's right) to dispose of such interest or such stock and which run 
in favor of the parent or subsidiary organization.
    (6) Controlled exempt organization. An interest which is an interest 
in or stock of the subsidiary organization shall be excluded if owned 
(directly and with the application of Sec. 1.414(c)-4) by an 
organization (other than the parent organization):
    (i) To which section 501 (relating to certain educational and 
charitable organizations which are exempt from tax) applies, and
    (ii) Which is controlled directly or indirectly (within the meaning 
of paragraph (d)(7) of this section) by the parent organization or 
subsidiary organization, by an individual, estate, or trust that is a 
principal owner of the parent organization, by an officer, partner, or 
fiduciary of the parent organization, or by any combination thereof.
    (c) Brother-sister group of trades or businesses under common 
control--(1) In general. If five or fewer persons (hereinafter in this 
section referred to as ``common owners'') who are individuals, estates, 
or trusts own (directly and with the application of Sec. 1.414(c)-4)--
    (i) In the case of a corporation, 50 percent or more of the total 
combined voting power of all classes of stock entitled to vote or 50 
percent or more of the total value of shares of all classes of stock or 
such corporation,
    (ii) In the case of a trust or an estate, an actuarial interest 
(within the meaning of Sec. 1.414(c)-2(b)(2)(ii)) of 50 percent or more 
of such trust or estate, and
    (iii) In the case of a partnership, 50 percent or more of the 
profits or capital interest of such partnership, then for purposes of 
determining whether such organization is a member of a brother-sister 
group of trades or businesses under common control, an interest in such 
organization excluded under paragraph (c) (2), (3), or (4) of this 
section shall be treated as not outstanding.
    (2) Exempt employees' trust. An interest which is an interest in or 
stock of such organization held by an employees' trust described in 
section 401(a) which is exempt from tax under section 501(a) shall be 
excluded if such trust is for the benefit of the employees of such 
organization.
    (3) Employees. An interest which is an interest in or stock of such 
organization owned (directly and with the application of Sec. 1.414(c)-
4) by an employee of such organization shall be excluded if such 
interest or stock is subject to conditions which run in favor of a 
common owner of such organization or in favor of such organization and 
which substantially restrict or limit the employee's right (or if the 
employee constructively owns such interest or stock, the direct or 
record owner's right) to dispose of such interest or stock.
    (4) Controlled exempt organization. An interest which is an interest 
in or stock of such organization shall be excluded if owned (directly 
and with the application of Sec. 1.414(c)-4) by an organization:
    (i) To which section 501(c)(3) (relating to certain educational and 
charitable organizations which are exempt from tax) applies, and
    (ii) Which is controlled directly or indirectly (within the meaning 
of paragraph (d)(7) of this section) by such organization, by an 
individual, estate, or trust that is a principal owner of such 
organization, by an officer, partner, or fiduciary of such organization, 
or by any combination thereof.
    (d) Definitions--(1) Employee. For purposes of this section, the 
term ``employee'' has the same meaning such term is given in section 
3306(i) of the

[[Page 585]]

Code (relating to definitions for purposes of the Federal Unemployment 
Tax Act).
    (2) Principal owner. For purposes of this section, the term 
``principal owner'' means a person who owns (directly and with the 
application of Sec. 1.414(c)-4)--
    (i) In the case of a corporation, 5 percent or more of the total 
combined voting power of all classes of stock entitled to vote in such 
corporation or 5 percent of more of the total value of shares of all 
classes of stock of such corporation;
    (ii) In the case of a trust or estate, an actuarial interest of 5 
percent or more of such trust or estate; or
    (iii) In the case of a partnership, 5 percent or more of the profits 
or capital interest of such partnership.
    (3) Officer. For purposes of this section, the term ``officer'' 
includes the president, vice-presidents, general manager, treasurer, 
secretary, and comptroller of a corporation, and any other person who 
performs duties corresponding to those normally performed by persons 
occupying such positions.
    (4) Partner. For purposes of this section, the term ``partner'' 
means any person defined in section 7701(a)(2) (relating to definitions 
of partner).
    (5) Fiduciary. For purposes of this section and Sec. 1.414(c)-4, the 
term ``fiduciary'' has the same meaning as such term is given in section 
7701(a)(6) and the regulations thereunder.
    (6) Substantial conditions. (i) In general. For purposes of this 
section, an interest in or stock of an organization is subject to 
conditions which substantially restrict or limit the right to dispose of 
such interest or stock and which run in favor of another person if the 
condition extends directly or indirectly to such person preferential 
rights with respect to the acquisition of the direct owner's (or the 
record owner's) interest or stock. For a condition to be in favor of 
another person it is not necessary that such person be extended a 
discriminatory concession with respect to price. A right of first 
refusal with respect to an interest or stock in favor of another person 
is a condition which substantially restricts or limits the direct or 
record owner's right of disposition which runs in favor of such person. 
Further, any legally enforceable condition which prohibits the direct or 
record owner from disposing of his or her interest or stock without the 
consent of another person will be considered to be a substantial 
limitation running in favor of such person.
    (ii) Special rule. For purposes of paragraph (c)(3) of this section 
only, if a condition which restricts or limits an employee's right (or 
direct or record owner's right) to dispose of his or her interest or 
stock also applies to the interest or stock in such organization held by 
a common owner pursuant to a bonafide reciprocal purchase arrangement, 
such condition shall not be treated as a substantial limitation or 
restriction. An example of a reciprocal purchase arrangement is an 
agreement whereby a common owner and the employee are given a right of 
first refusal with respect to stock of the employer corporation owned by 
the other party. If, however, the agreement also provides that the 
common owner has the right to purchase the stock of the employer 
corporation owned by the employee in the event the corporation should 
discharge the employee for reasonable cause, the purchase arrangement 
would not be reciprocal within the meaning of this subdivision.
    (7) Control. For purposes of paragraphs (b)(6) and (c)(4) of this 
section, the term ``control'' means control in fact. The determination 
of whether there exists control in fact will depend upon all of the 
facts and circumstances of each case, without regard to whether such 
control is legally enforceable and irrespective of the method by which 
such control is exercised or exercisable.
    (e) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example (1). ABC Partnership owns 70 percent of the capital interest 
and of the profits interest in the DEF Partnership. The remaining 
capital interest and profits interest in DEF is owned as follows: 4 
percent by A (a general partner in ABC), and 26 percent by D (a limited 
partner in ABC). ABC satisfies the 50-percent capital interest or 
profits interest ownership requirement of paragraph (b)(1)(iii) of this 
section with respect to DEF. Since A and D are partners of ABC, under 
paragraph (b)(4) of this section the capital

[[Page 586]]

and profits interests in DEF owned by A and D are treated as not 
outstanding for purposes of determining whether ABC and DEF are members 
of a parent-subsidiary group of trades or businesses under common 
control under Sec. 1.414 (c)-2(b). Thus, ABC is considered to own 100 
percent (7070) of the capital interest and profits interest in 
DEF. Accordingly, ABC and DEF are members of a parent-subsidiary group 
of trades or businesses under common control.
    Example (2). Assume the same facts as in example (1) and assume 
further that A owns 15 shares of the 100 shares of the only class of 
stock of S Corporation and DEF Partner-ship owns 75 shares of such 
stock. ABC satisfies the 50 percent stock requirement of paragraph 
(b)(1)(i) of this section with respect to S since ABC is considered as 
owning 52.5 percent (70 percent x 75 percent) of the S stock with the 
application of Sec. 1.414 (c)-4(b)(2). Since A is a partner of ABC, the 
S stock owned by A is treated as not outstanding for purposes of 
determining whether S is a member of a parent-subsidiary group of trades 
or businesses under common control. Thus, DEF Partnership is considered 
to own stock possessing 88.2 percent (7585) of the voting power 
and value of the S stock. Accordingly, ABC Partnership, DEF Partnership, 
and S Corporation are members of a parent-subsidiary group of trades or 
businesses under common control.
    Example (3). ABC Partnership owns 60 percent of the only class of 
stock of Corporation Y. D, the president of Y, owns the remaining 40 
percent of the stock of Y. D has agreed that if she offers her stock in 
Y for sale she will first offer the stock to ABC at a price equal to the 
fair market value of the stock on the first date the stock is offered 
for sale. Since D is an employee of Y within the meaning of section 
3306(i) of the Code and her stock in Y is subject to a condition which 
substantially restricts or limits her right to dispose of such stock and 
runs in favor of ABC Partnership, under paragraph (b)(5) of this section 
such stock is treated as not outstanding for purposes of determining 
whether ABC and Y are members of a parent-subsidiary group of trades or 
businesses under common control. Thus, ABC Partnership is considered to 
own stock possessing 100 percent of the voting power and value of the 
stock of Y. Accordingly, ABC Partnership and Y Corporation are members 
of a parent-subsidiary group of trades or businesses under common 
control. The result would be the same if D's husband, instead of D, 
owned directly the 40 percent stock interest in Y and such stock was 
subject to a right of first refusal running in favor of ABC Partnership.

    (f) Exception--(1) In general. If an interest in an organization 
(including stock of a corporation) is owned by a person directly or with 
the application of the rules of paragraph (b) of Sec. 1.414 (c)-4 and 
such ownership results in the membership of that organization in a group 
of two or more trades or businesses under common control for any period, 
then the interest will not be treated as an excluded interest under 
paragraph (b) or (c) of this section if the result of applying such 
provisions is that the organization is not a member of a group of two or 
more trades or businesses under common control for the period.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Corporation P owns directly 50 of the 100 shares of the 
only class of stock of corporation S. A, an officer of P, owns directly 
30 shares of S stock which P has an option to acquire. If, under 
paragraph (b)(4) of this section, the 30 shares owned directly by A are 
treated as not outstanding, P would be treated as owning stock 
possessing only 71 percent (50/70) of the total voting power and value 
of S stock, and S should not be a member of a parent-subsidiary group of 
trades or businesses under common control. However, because the 30 
shares owned by A that P has an option to purchase are considered as 
owned by P under paragraph (b)(2) of this section, and that ownership 
plus P's direct ownership of 50 shares result in S's membership in a 
parent-subsidiary group of trades or businesses under common control for 
1985, the provisions of this paragraph apply. Therefore, A's stock is 
not treated as an excluded interest and S is a member of a parent-
subsidiary group consisting of P and S.

[T.D. 8179, 53 FR 6607, Mar. 2, 1988; 53 FR 8302, Mar. 14, 1988]



Sec. 1.414(c)-4  Rules for determining ownership.

    (a) In general. In determining the ownership of an interest in an 
organization for purposes of Sec. 1.414(c)-2 and Sec. 1.414(c)-3, the 
constructive ownership rules of paragraph (b) of this section shall 
apply, subject to the operating rules contained in paragraph (c). For 
purposes of this section the term ``interest'' means: in the case of a 
corporation, stock; in the case of a trust or estate, an actuarial 
interest; in the case of a partnership, an interest in the profits or 
capital; and in the case of a sole proprietorship, the proprietorship.

[[Page 587]]

    (b) Constructive ownership--(1) Options. If a person has an option 
to acquire any outstanding interest in an organization, such interest 
shall be considered as owned by such person. For this purpose, an option 
to acquire an option, and each one of a series of such options shall be 
considered as an option to acquire such interest.
    (2) Attribution from partnerships--(i) General. An interest owned, 
directly or indirectly, by or for a partnership shall be considered as 
owned by any partner having an interest of 5 percent or more in either 
the profits or capital of the partnership in proportion to such 
partner's interest in the profits or capital, whichever such proportion 
is greater.
    (ii) Example. The provisions of paragraph (b)(2)(i) of this section 
may be illustrated by the following example:

    Example. A, B, and C, unrelated individuals, are partners in the ABC 
Partnership. The partners' interest in the capital and profits of ABC 
are as follows:

                              (In percent)                              
------------------------------------------------------------------------
                  Partner                      Capital        Profits   
------------------------------------------------------------------------
A.........................................       36             25      
B.........................................       60             71      
C.........................................        4              4      
------------------------------------------------------------------------

    The ABC Partnership owns the entire outstanding stock (100 shares) 
of X Corporation. Under paragraph (b)(2)(i) of this section, A is 
considered to own the stock of X owned by the partnership in proportion 
to his interest in capital (36 percent) or profits (25 percent), 
whichever such proportion is greater. Therefore, A is considered to own 
36 shares of X stock. Since B has a greater interest in the profits of 
the partnership than in the capital, B is considered to own X stock in 
proportion to his interest in such profits. Therefore, B is considered 
to own 71 shares of X stock. Since C does not have an interest of 5 
percent or more in either the capital or profits of ABC, he is not 
considered to own any shares of X stock.
    (3) Attribution from estates and trusts--(i) In general. An interest 
in an organization (hereinafter called an ``organization interest'') 
owned, directly or indirectly, by or for an estate or trust shall be 
considered as owned by any beneficiary of such estate or trust who has 
an actuarial interest of 5 percent or more in such organization 
interest, to the extent of such actuarial interest. For purposes of this 
subparagraph, the actuarial interest of each beneficiary shall be 
determined by assuming the maximum exercise of discretion by the 
fiduciary in favor of such beneficiary and the maximum use of the 
organization interest to satisfy the beneficiary's rights. A beneficiary 
of an estate or trust who cannot under any circumstances receive any 
part of an organization interest held by the estate or trust, including 
the proceeds from the disposition thereof, or the income therefrom, does 
not have an actuarial interest in such organization interest. Thus, 
where stock owned by a decedent's estate has been specifically 
bequeathed to certain beneficiaries and the remainder of the estate has 
been specifically bequeathed to other beneficiaries, the stock is 
attributable only to the beneficiaries to whom it is specifically 
bequeathed. Similarly a remainderman of a trust who cannot under any 
circumstances receive any interest in the stock of a corporation which 
is a part of the corpus of the trust (including any accumulated income 
therefrom or the proceeds from a disposition thereof) does not have an 
actuarial interest in such stock. However, an income beneficiary of a 
trust does have an actuarial interest in stock if he has any right to 
the income from such stock even though under the terms of the trust 
instrument such stock can never be distributed to him. The factors and 
methods prescribed in Sec. 20.2031-7 or, for certain prior periods, 
Sec. 20.2031-7A (Estate Tax Regulations) for use in ascertaining the 
value of an interest in property for estate tax purposes shall be used 
for purposes of this subdivision in determining a beneficiary's 
actuarial interest in an organization interest owned directly or 
indirectly by or for an estate or trust.
    (ii) Special rules for estates. (A) For purposes of this paragraph 
(b)(3) with respect to an estate, property of a decedent shall be 
considered as owned by his or her estate if such property is subject to 
administration by the executor or administrator for the purposes of 
paying claims against the estate and expenses of administration 
notwithstanding that, under local law, legal title to such property 
vests in the decedent's heirs, legatees or devisees immediately upon 
death.

[[Page 588]]

    (B) For purposes of this paragraph (b)(3) with respect to an estate, 
the term ``beneficiary'' includes any person entitled to receive 
property of a decedent pursuant to a will or pursuant to laws of descent 
and distribution.
    (C) For purposes of this paragraph (b)(3) with respect to an estate, 
a person shall no longer be considered a beneficiary of an estate when 
all the property to which he or she is entitled has been received by him 
or her, when he or she no longer has a claim against the estate arising 
out of having been a beneficiary, and when there is only a remote 
possibility that it will be necessary for the estate to seek the return 
of property from him or her or to seek payment from him or her by 
contribution or otherwise to satisfy claims against the estate or 
expenses of administration.
    (iii) Grantor trusts, etc. An interest owned, directly or 
indirectly, by or for any portion of a trust of which a person is 
considered the owner under subpart E, part I, subchapter J of the Code 
(relating to grantors and others treated as substantial owners) is 
considered as owned by such person.
    (4) Attribution from corporations--(i) General. An interest owned, 
directly or indirectly, by or for a corporation shall be considered as 
owned by any person who owns (directly and, in the case of a parent-
subsidiary group of trades or businesses under common control, with the 
application of paragraph (b)(1) of this section, or in the case of a 
brother-sister group of trades or business under common control, with 
the application of this section), 5 percent or more in value of the 
stock in that proportion which the value of the stock which such person 
so owns bears to the total value of all the stock in such corporation.
    (ii) Example. The provisions of paragraph (b)(4)(i) of this section 
may be illustrated by the following example:

    Example. B, an individual, owns 60 of the 100 shares of the only 
class of outstanding stock of corporation P. C, an individual, owns 4 
shares of the P stock, and corporation X owns 36 shares of the P stock. 
Corporation P owns, directly and indirectly, 50 shares of the stock of 
corporation S. Under this subparagraph, B is considered to own 30 shares 
of the S stock (60/100 x 50), and X is considered to own 18 shares of S 
stock (36/100 x 50). Since C does not own 5 percent or more in the value 
of P stock, he is not considered as owning any of the S stock owned by 
P. If in this example, C's wife had owned directly 1 share of the P 
stock, C and his wife would each be considered as owning 5 shares of the 
P stock, and therefore C and his wife would be considered as owning 2.5 
shares of the S stock (5/100 x 50).

    (5) Spouse--(i) General rule. Except as provided in paragraph 
(b)(5)(ii) of this section, an individual shall be considered to own an 
interest owned, directly or indirectly, by or for his or her spouse, 
other than a spouse who is legally separated from the individual under a 
decree of divorce, whether interlocutory or final, or a decree of 
separate maintenance.
    (ii) Exception. An individual shall not be considered to own an 
interest in an organization owned, directly or indirectly, by or for his 
or her spouse on any day of a taxable year of such organization, 
provided that each of the following conditions are satisfied with 
respect to such taxable year:
    (A) Such individual does not, at any time during such taxable year, 
own directly any interest in such organization;
    (B) Such individual is not a member of the board of directors, a 
fiduciary, or an employee of such organization and does not participate 
in the management of such organization at any time during such taxable 
year;
    (C) Not more than 50 percent of such organization's gross income for 
such taxable year was derived from royalties, rents, dividends, 
interest, and annuities; and
    (D) Such interest in such organization is not, at any time during 
such taxable year, subject to conditions which substantially restrict or 
limit the spouse's right to dispose of such interest and which run in 
favor of the individual or the individual's children who have not 
attained the age of 21 years. The principles of Sec. 1.414(c)-3(d)(6)(i) 
shall apply in determining whether a condition is a condition described 
in the preceding sentence.
    (iii) Definitions. For purposes of paragraph (b)(5)(ii)(C) of this 
section, the gross income of an organization shall be determined under 
section 61 and the

[[Page 589]]

regulations thereunder. The terms ``interest'', ``royalties'', 
``rents'', ``dividends'', and ``annuities'' shall have the same meaning 
such terms are given for purposes of section 1244(c) and Sec. 1.1244(c)-
1(e)(1).
    (6) Children, grandchildren, parents, and grandparents--(i) Children 
and parents. An individual shall be considered to own an interest owned, 
directly or indirectly, by or for the individual's children who have not 
attained the age of 21 years, and if the individual has not attained the 
age of 21 years, an interest owned, directly or indirectly, by or for 
the individual's parents.
    (ii) Children, grandchildren, parents, and grandparents. If an 
individual is in effective control (within the meaning of Sec. 1.414(c)-
2(c)(2)), directly and with the application of the rules of this 
paragraph without regard to this subdivision, of an organization, then 
such individual shall be considered to own an interest in such 
organization owned, directly or indirectly, by or for the individual's 
parents, grandparents, grandchildren, and children who have attained the 
age of 21 years.
    (iii) Adopted children. For purposes of this section, a legally 
adopted child of an individual shall be treated as a child of such 
individual.
    (iv) Example. The provisions of this subparagraph (6) may be 
illustrated by the following example:

    Example--(A) Facts. Individual F owns directly 40 percent of the 
profits interest of the DEF Partnership. His son, M, 20 years of age, 
owns directly 30 percent of the profits interest of DEF, and his son, A, 
30 years of age, owns directly 20 percent of the profits interest of 
DEF. The 10 percent remaining of the profits interest and 100 percent of 
the capital interest of DEF is owned by an unrelated person.
    (B) F's ownership. F owns 40 percent of the profits interest in DEF 
directly and is considered to own the 30 percent profits interest owned 
directly by M. Since, for purposes of the effective control test 
contained in paragraph (b)(6)(ii) of this section, F is treated as 
owning 70 percent of the profits interest of DEF, F is also considered 
as owning the 20 percent profits interest of DEF owned by his adult son, 
A. Accordingly, F is considered as owning a total of 90 percent of the 
profits interest in DEF.
    (C) M's ownership. Minor son, M. owns 30 percent of the profits 
interest in DEF directly, and is considered to own the 40 percent 
profits interest owned directly by his father, F. However, M is not 
considered to own the 20 percent profits interest of DEF owned directly 
by his brother, A, and constructively by F, because an interest 
constructively owned by F by reason of family attribution is not 
considered as owned by him for purposes of making another member of his 
family the constructive owner of such interest. (See paragraph (c)(2) of 
this section.) Accordingly, M is considered as owning a total of 70 
percent of the profits interest of the DEF Partnership.
    (D) A's ownership. Adult son, A, owns 20 percent of the profits 
interest in DEF directly. Since, for purposes of determining whether A 
effectively controls DEF under paragraph (b)(6)(ii) of this section, A 
is treated as owning only the percentage of profits interest he owns 
directly, he does not satisfy the condition precedent for the 
attribution of the DEF profits interest from his father. Accordingly, A 
is considered as owning only the 20 percent profits interest in DEF 
which he owns directly.

    (c) Operating rules--(1) In general. Except as provided in paragraph 
(c)(2) of this section, an interest constructively owned by a person by 
reason of the application of paragraph (b) (1), (2), (3), (4), (5), or 
(6) of this section shall, for the purposes of applying such paragraph, 
be treated as actually owned by such person.
    (2) Members of family. An interest constructively owned by an 
individual by reason of the application of paragraph (b) (5) or (6) of 
this section shall not be treated as owned by such individual for 
purposes of again applying such subparagraphs in order to make another 
the constructive owner of such interest.
    (3) Precedence of option attribution. For purposes of this section, 
if an interest may be considered as owned under paragraph (b)(1) of this 
section (relating to option attribution) and under any other 
subparagraph of paragraph (b) of this section, such interest shall be 
considered as owned by such person under paragraph (b)(1) of this 
section.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example (1). A, 30 years of age, has a 90 percent interest in the 
capital and profits of DEF Partnership. DEF owns all the outstanding 
stock of corporation X and X owns 60 shares of the 100 outstanding 
shares of corporation Y. Under paragraph (c)(1) of this section, the 60 
shares of Y constructively

[[Page 590]]

owned by DEF by reason of paragraph (b)(4) of this section are treated 
as actually owned by DEF for purposes of applying paragraph (b)(2) of 
this section. Therefore, A is considered as owning 54 shares of the Y 
stock (90 percent of 60 shares).
    Example (2). Assume the same facts as in example (1). Assume further 
that B, who is 20 years of age and the brother of A, directly owns 40 
shares of Y stock. Although the stock of Y owned by B is considered as 
owned by C (the father of A and B) under paragraph (b)(6)(i) of this 
section, under paragraph (c)(2) of this section such stock may not be 
treated as owned by C for purposes of applying paragraph (b)(6)(ii) of 
this section in order to make A the constructive owner of such stock.
    Example (3). Assume the same facts as in example (2), and further 
assume that C has an option to acquire the 40 shares of Y stock owned by 
his son, B. The rule contained in paragraph (c)(2) of this section does 
not prevent the reattribution of such 40 shares to A because, under 
paragraph (c)(3) of this section, C is considered as owning the 40 
shares by reason of option attribution and not by reason of family 
attribution. Therefore, since A is in effective control of Y under 
paragraph (b)(6)(ii) of this section, the 40 shares of Y stock 
constructively owned by C are reattributed to A. A is considered as 
owning a total of 94 shares of Y stock.

[T.D. 8179, 53 FR 6609, Mar. 2, 1988; 53 FR 8302, Mar. 14, 1988, as 
amended by T.D. 8540, 59 FR 30102, June 10, 1994]



Sec. 1.414(c)-5  Effective date.

    (a) General rule. Except as provided in paragraph (b), (c), (e), or 
(f) of this section, the provisions of Sec. 1.414(b)-1 and 
Secs. 1.414(c)-1 through 1.414 (c)-4 shall apply for plan years 
beginning after September 2, 1974.
    (b) Existing plans. In the case of a plan in existence on January 1, 
1974, unless paragraph (c) of this section applies, the provisions of 
``Sec. 1.414 (b)-1 and Secs. 1.414(c)-1 through 1.414(c)-4 shall apply 
for plan years beginning after December 31, 1975. For definition of the 
term ``existing plan'', see Sec. 1.410(a)-2(c).
    (c) Existing plans electing new provisions. In the case of a plan in 
existence on January 1, 1974, for which the plan administrator makes an 
election under Sec. 1.410 (a)-2(d), the provisions of Sec. 1.414(b)-1 
and Secs. 1.414 (c)-1 through 1.414(c)-4 shall apply to the plan years 
elected under Sec. 1.410 (a)-2 (d).
    (d) Application. For purposes of the Employee Retirement Income 
Security Act of 1974, the provisions of Sec. 1.414(b)-1 and 
Secs. 1.414(c)-1 through 1.414(c)-4 do not apply for any period of time 
before the plan years described in paragraph (a), (b), or (c) of this 
section, whichever is applicable.
    (e) Special rule. Notwithstanding paragraph (a), (b), or (c) of this 
section, Sec. 1.414(c)-3 (f) is effective April 1, 1988.
    (f) Transitional rule--(1) In general. The amendments made by T.D. 
8179 apply to the plan years or period described in paragraphs (a), (b), 
or (c) of this section, whichever is applicable.
    (2) Exception. In the case of a plan year or period beginning before 
March 2, 1988, if an organization--
    (i) Is a member of a brother-sister group of trades or businesses 
under common control under Sec. 11.414(c)-2(c), as in effect before 
removal by T.D. 8179 (``old group''), for such plan year or period, and
    (ii) Is not such a member for such plan year or period because of 
the amendments made by such Treasury decision,

such member (whether or not a corporation) nevertheless will be treated 
as a member of such old group for purposes of section 414(c) for that 
plan year or period to the extent provided in Sec. 1.1563-1 (d)(2). 
Also, such member will be treated as a member of an old group for all 
purposes of the Code for such plan year or period if all the 
organizations (whether or not corporations) that are members of the old 
group meet all the requirements of Sec. 1.1563-1 (d)(3) with respect to 
such plan year or period.

[T.D. 8179, 53 FR 6611, Mar. 2, 1988]



Sec. 1.414(e)-1  Definition of church plan.

    (a) General rule. For the purposes of part I of subchapter D of 
chapter 1 of the Code and the regulations thereunder, the term ``church 
plan'' means a plan established and at all times maintained for its 
employees by a church or by a convention or association of churches 
(hereinafter included within the term ``church'') which is exempt from 
tax under section 501(a), provided that such plan meets the requirements 
of paragraphs (b) and (if applicable) (c) of this section. If at any 
time during its existence a plan is not a church plan because of a 
failure to meet the requirements set forth in this section,

[[Page 591]]

it cannot thereafter become a church plan.
    (b) Unrelated businesses--(1) In general. A plan is not a church 
plan unless it is established and maintained primarily for the benefit 
of employees (or their beneficiaries) who are not employed in connection 
with one or more unrelated trades or businesses (within the meaning of 
section 513).
    (2) Establishment or maintenance of a plan primarily for persons not 
employed in connection with one or more unrelated trades or businesses. 
(i) (A) A plan, other than a plan in existence on September 2, 1974, is 
established primarily for the benefit of employees (or their 
beneficiaries) who are not employed in connection with one or more 
unrelated trades or businesses if on the date the plan is established 
the number of employees employed in connection with the unrelated trades 
or businesses eligible to participate in the plan is less than 50 
percent of the total number of employees of the church eligible to 
participate in the plan.
    (B) A plan in existence on September 2, 1974, is to be considered 
established as a plan primarily for the benefit of employees (or their 
beneficiaries) who are not employed in connection with one or more 
unrelated trades or businesses if it meets the requirements of both 
paragraphs (b)(2)(ii) (A) and (B) (if applicable) in either of its first 
2 plan years ending after September 2, 1974.
    (ii) For plan years ending after September 2, 1974, a plan will be 
considered maintained primarily for the benefit of employees of a church 
who are not employed in connection with one or more unrelated trades or 
businesses if in 4 out of 5 of its most recently completed plan years--
    (A) Less than 50 percent of the persons participating in the plan 
(at any time during the plan year) consist of and in the same year
    (B) Less than 50 percent of the total compensation paid by the 
employer during the plan year (if benefits or contributions are a 
function of compensation) to employees participating in the plan is paid 
to,

employees employed in connection with an unrelated trade or business. 
The determination that the plan is not a church plan will apply to the 
second year (within a 5 year period) for which the plan fails to meet 
paragraph (b)(2)(ii) (A) or (B) (if applicable) and to all plan years 
thereafter unless, taking into consideration all of the facts and 
circumstances as described in paragraph (b)(2)(iii) of this section, the 
plan is still considered to be a church plan. A plan that has not 
completed 5 plan years ending after September 2, 1974, shall be 
considered maintained primarily for the benefit of employees not 
employed in connection with an unrelated trade or business unless it 
fails to meet paragraphs (b)(2)(ii) (A) and (B) in at least 2 such plan 
years.
    (iii) Even though a plan does not meet the provisions of paragraph 
(b)(2)(ii) of this section, it nonetheless will be considered maintained 
primarily for the benefit of employees who are not employed in 
connection with one or more unrelated trades or businesses if the church 
maintaining the plan can demonstrate that based on all of the facts and 
circumstances such is the case. Among the facts and circumstances to be 
considered in evaluating each case are:
    (A) The margin by which the plan fails to meet the provisions of 
paragraph (b)(2)(ii) of this section, and
    (B) Whether the failure to meet such provisions was due to a 
reasonable mistake as to what constituted an unrelated trade or business 
or whether a particular person or group of persons were employed in 
connection with one or more unrelated trades or businesses.
    (iv) For purposes of this section, an employee will be considered 
eligible to participate in a plan if such employee is a participant in 
the plan or could be a participant in the plan upon making mandatory 
employee contributions to the plan.
    (3) Employment in connection with one or more unrelated trades or 
businesses. An employee is employed in connection with one or more 
unrelated trades or businesses of a church if a majority of such 
employee's duties and responsibilities in the employ of the church are 
directly or indirectly related to the carrying on of such trades or 
businesses. Although an employee's duties and responsibilities may be 
insignificant with respect to any one unrelated trade or business, such 
employee will

[[Page 592]]

nonetheless be considered as employed in connection with one or more 
unrelated trades or businesses if such employee's duties and 
responsibilities with respect to all of the unrelated trades or 
businesses of the church represent a majority of the total of such 
person's duties and responsibilities in the employ of the church.
    (c) Plans of two or more employers. The term ``church plan'' does 
not include a plan which, during the plan year, is maintained by two or 
more employers unless--
    (1) Each of the employers is a church that is exempt from tax under 
section 501(a), and
    (2) With respect to the employees of each employer, the plan meets 
the provisions of paragraph (b)(2)(ii) of this section or would be 
determined to be a church plan based on all the facts and circumstances 
described in paragraph (b)(2)(iii) of this section.

Thus, if with respect to a single employer the plan fails to meet any 
provision of this paragraph, the entire plan ceases to be a church plan 
unless that employer ceases maintaining the plan for all plan years 
beginning after the plan year in which it receives a final notification 
from the Internal Revenue Service that it does not meet the provisions 
of this paragraph. If the employer does cease maintaining the plan in 
accordance with this paragraph, the fact that the employer formerly did 
maintain the plan will not prevent the plan from being a church plan for 
prior years.
    (d) Special rule. (1) Notwithstanding paragraph (c)(1) of this 
section, a plan maintained by a church and one or more agencies of such 
church for the employees of such church and of such agency or agencies, 
that is in existence on January 1, 1974, shall be treated as a church 
plan for plan years ending after September 2, 1974, and beginning before 
January 1, 1983, provided that the plan is described in paragraph (c) of 
this section without regard to paragraph (c)(1) of this section, and the 
plan is not maintained by an agency which did not maintain the plan on 
January 1, 1974.
    (2) For the purposes of section 414(e) and this section, an agency 
of a church means an organization which is exempt from tax under section 
501 and which is either controlled by, or associated with, a church. For 
example, an organization, a majority of whose officers or directors are 
appointed by a church's governing board or by officials of a church, is 
controlled by a church within the meaning of this paragraph. An 
organization is associated with a church if it shares common religious 
bonds and convictions with that church.
    (e) Religious orders and religious organizations. For the purpose of 
this section the term ``church'' includes a religious order or a 
religious organization if such order or organization (1) is an integral 
part of a church, and (2) is engaged in carrying out the functions of a 
church, whether as a civil law corporation or otherwise.
    (f) Separately incorporated fiduciaries. A plan which otherwise 
meets the provisions of this section shall not lose its status as a 
church plan because of the fact that it is administered by a separately 
incorporated fiduciary such as a pension board or a bank.
    (g) Cross reference. (1) For rules relating to treatment of church 
plans, see section 410(c), 411(e), 412(h), 4975(g), and the regulations 
thereunder.
    (2) For rules relating to church plan elections, see section 410(d) 
and the regulations thereunder.

[T.D. 7688, 45 FR 20797, Mar. 31, 1980]



Sec. 1.414(f)-1  Definition of multiemployer plan.

    (a) General rule. For purposes of part I of subchapter D of chapter 
1 of the Code and the regulations thereunder, a plan is a multiemployer 
plan for a plan year if all of the following requirements are satisfied:
    (1) Number of contributing employers. More than one employer is 
required by the plan instrument or other agreement to contribute (or to 
have contributions made on its behalf) to the plan for the plan year.
    (2) Collective bargaining agreement. The plan is maintained for the 
plan year pursuant to one or more collective bargaining agreements 
between employee representatives and more than one employer.

[[Page 593]]

    (3) Amount of contributions. Except as provided by paragraph (c) of 
this section (relating to the special rule for contributions exceeding 
50 percent), the amount of contributions made under the plan for the 
plan year by or on behalf of each employer is less than 50 percent of 
the total amount of contributions made under the plan for such plan year 
by or on behalf of all employers.
    (4) Benefits. The plan provides that the amount of benefits payable 
with respect to each employee participating in the plan is determined 
without regard to whether or not his employer continues as a member of 
the plan. If benefits accrued as a result of the participant's service 
with his employer during a period before such employer was a member of 
the plan, this requirement does not apply to the amount of those 
benefits, except that this requirement does apply to the amount of those 
benefits (i) which are accrued benefits derived from employee 
contributions, or (ii) which are accrued under a plan maintained by an 
employer prior to the time such employer became a member of the plan to 
which the requirements of this paragraph (a) are applied.
    (5) Other requirements. The plan satisfies such other requirements 
as the Secretary of Labor by regulations prescribes under the authority 
of section 414(f)(1)(E) of the Code and section 3(37) of the Employee 
Retirement Income Security Act of 1974 (Pub. L. 93-406, 88 Stat. 839). 
See 29 CFR 2510.3-37.
    (b) Special rules--(1) Amount of contributions. For purposes of 
paragraphs (a)(3) and (c) of this section, the amount of contributions 
made under the plan for the plan year by or on behalf of each employer 
shall be the sum of such contributions made on or before the last day of 
the plan year. For purposes of determining whether contributions are 
made on or before the last day of the plan year, the rule of section 
412(c)(10) and the regulations thereunder (relating to the treatment of 
certain contributions made after the last day of the plan year as made 
on such last day) shall apply.
    (2) Benefits. (i) For purposes of paragraph (a)(4) of this section, 
certain benefit amounts are treated as accrued as a result of the 
participant's service with an employer during a period before such 
employer was a member of the plan. The amount of such a benefit so 
treated is the difference (if any) between two calculated amounts. The 
first calculated amount is the participant's total accrued benefit 
calculated under the plan as of the date the employer ceased to be a 
member of the plan. The second calculated amount is the participant's 
accrued benefit calculated without regard to his service with such 
employer during the period before such employer was a member of the 
plan. However, under a special limitation, this difference may not 
exceed the benefit a participant accrued from service before his 
employer became a member of the plan. For purposes of this limitation, 
this benefit is the benefit accrued as of the date the employer ceases 
to be a member of the plan. An employer shall be deemed to be a member 
of the plan in a plan year if the employer is required by the plan 
instrument or other agreement to contribute (or to have contributions 
made on its behalf) to the plan for such plan year or if an employee of 
the employer accrues a benefit, on account of service with the employer 
during such plan year, under the plan for that plan year.
    (ii) The provisions of paragraphs (a)(4) and (b)(2)(i) of this 
section are illustrated by the following example:

    Example. On January 1, 1976, employer W became a member of the 
noncontributory XYZ pension plan which uses the calendar year as the 
plan year. W did not maintain any plan prior to that date. The plan 
provided for benefits of $4 per month per year of service (including 
service with W before January 1, 1976). On January 1, 1980, following 
adoption of a new collective bargaining agreement, the benefits were 
increased to $12 per month per year of service for all years of service 
(including service with W before January 1, 1976). On January 1, 1991, W 
ceased to be a member of the plan.
    A, an employee of W, had 15 years of service before January 1, 1976, 
4 years of service between January 1, 1976, and December 31, 1979, and 
11 years of service between January 1, 1980, and December 31, 1990. On 
December 31, 1990, A's accrued benefit was $360 per month ($12 per month 
x 30). On January 1, 1991, the portion of A's accrued benefit retained 
and the portion forfeited under the terms of the XYZ pension plan were 
determined as follows:

[[Page 594]]



----------------------------------------------------------------------------------------------------------------
                                                               Monthly accrued benefit   Monthly accrued benefit
                            Years                                     retained                  forfeited       
----------------------------------------------------------------------------------------------------------------
Before Jan. 1, 1976.........................................  ........................       $12 x 15 years=$180
Jan. 1, 1976 to Dec. 31, 1979...............................          $4 x 4 years=$16          $8 x 4 years=$32
Jan. 1, 1980 to Dec. 31, 1990...............................       $12 x 11 years=$132  ........................
                                                             ---------------------------------------------------
  Total.....................................................                      $148                      $212
----------------------------------------------------------------------------------------------------------------

    The XYZ plan does not satisfy the requirements of paragraphs (a)(4) 
and (b)(2)(i) of this section because no benefit can be forfeited with 
respect to service after W began participating in the plan. Thus, the 
maximum accrued benefit that may be forfeited is $180 per month (the 
accrued benefit with respect to A's service prior to January 1, 1976). 
Therefore, in order for the plan to meet the requirements of paragraphs 
(a)(4) and (b)(2)(i) of this section, the plan must provide for A's 
accrued benefit after W ceased to be a member of the plan to be at least 
$180 per month ($360 per month total accrued benefit less $180 per month 
benefit accrued for service prior to W's membership in the plan).

    (iii) For purposes of paragraphs (a)(4) and (b)(2) of this section, 
if an employer for a period employs two or more individuals who, solely 
by reason of their employment, are participants in the plan and who do 
not belong to the same collective bargaining unit, the dates on which 
the employer became and ceased to be a member of the plan shall be 
determined separately on a class basis for individuals who belong to 
separate collective bargaining units, as separate classes, and for 
individuals who do not belong to a collective bargaining unit, as a 
further single separate class. Thus, such dates shall be determined with 
respect to individuals as a class who belong to the same collective 
bargaining unit (or who do not belong to a collective bargaining unit) 
without consideration of the employment by the employer of, or the 
participation in the plan by, other individuals (who do not belong to 
such collective bargaining unit and who may belong to another collective 
bargaining unit) or whether the employer is a member of the plan with 
respect to such other individuals. In no event, however, may service not 
attributable to service with a particular collective bargaining unit be 
disregarded under paragaphs (a)(4) and (b)(2) of this section merely 
because the employer ceases to maintain the plan with respect to such 
unit. Thus, for example, paragraphs (a)(4) and (b)(2) of this section do 
not permit the disregard of a period of service of an individual 
belonging to a collective bargaining unit prior to the time the employer 
became a member of the plan with respect to such unit to the extent 
that, during such period of service, the individual belonged to another 
collective bargaining unit with respect to which the employer was a 
member of the plan.
    (3) Controlled groups. For purposes of section 414(f) and this 
section, all corporations which are members of a controlled group of 
corporations (within the meaning of section 1563(a) and the regulations 
thereunder, but determined without regard to section 1563(e)(3)(C) and 
the regulations thereunder) are deemed to be one employer.
    (c) Contributions exceeding 50 percent. If a plan was a 
multiemployer plan as defined in this section for any plan year 
(including plan years ending prior to September 3, 1974), ``75 percent'' 
shall be substituted for ``50 percent'' in applying paragraph (a)(3) of 
this section for subsequent plan years until the first plan year 
following a plan year in which the amount contributed by or on behalf of 
one employer is 75 percent or more of the total amount of contributions 
made under the plan for that plan year by or on behalf of all of the 
employers making contributions. In such case ``75 percent'' shall not 
again be substituted for ``50 percent'' until the plan has met the 
requirements of paragraph (a) of this section (determined without regard 
to this paragraph) for one plan year.
    (d) Examples. The application of this section is illustrated by the 
following examples. For purposes of these examples, assume that the plan 
meets the requirements of paragraphs (a) (1), (2), (4), and (5) of this 
section for each plan year.


[[Page 595]]


    Example (1). On January 1, 1970, U, V, and W, three employers none 
of which is a member of a controlled group of corporations with any of 
the other two employers, establish a plan with a plan year corresponding 
to the calendar year. U, V, and W each contribute less than one-half of 
the total contributions made under the plan for each of the years 1970, 
1971, and 1972. For the years 1973, 1974, and 1975, U contributes 70 
percent and V and W each contribute 15 percent of the total 
contributions made under the plan for each year. The plan is a 
multiemployer plan under section 414(f) and this section for 1975 
because no employer has contributed 75 percent or more of the total 
amount contributed for each of the plan years subsequent to 1972.
    Example (2). (i) First plan year. On January 1, 1975, X, Y, and Z, 
three employers none of which is a member of a controlled group of 
corporations with any of the other two employers, establish a plan with 
a plan year corresponding to the calendar year. X, Y, and Z each 
contribute less than one-half of the total contributions made under the 
plan for 1975. The plan is a multiemployer plan for 1975 because it 
meets the 50 percent contribution requirement of paragraph (a)(3) of 
this section.
    (ii) Second plan year. For the second plan year, 1976, X contributes 
70 percent and Y and Z each contribute 15 percent of the total 
contributions made under the plan. The plan is a multiemployer plan for 
1976 because it was a multiemployer plan for the preceding plan year and 
satisfies the 75 percent contribution requirement of paragraph (c) of 
this section.
    (iii) Third plan year. For the third plan year, 1977, X contributes 
80 percent and Y and Z each contribute 10 percent of the total 
contributions made under the plan. The plan is not a multiemployer plan 
for 1977 because it fails to satisfy the 75 percent contribution 
requirement of paragraph (c) of this section.
    (iv) Fourth plan year. For the fourth plan year, 1978, Y contributes 
60 percent and X and Z each contribute 20 percent of the total 
contributions made under the plan. The 75 percent contribution 
requirement of paragraph (c) of this section does not apply. The plan is 
not a multiemployer plan for 1978 because it fails to satisfy the 50 
percent contribution requirement of paragraph (a)(3) of this section.
    (v) Fifth plan year. For the fifth plan year, 1979, X, Y, and Z each 
contribute less than one-half of the total contributions made under the 
plan. The 75 percent contribution requirement of paragraph (c) of this 
section does not apply. The plan is a multiemployer plan for 1979 
because it again meets the 50 percent contribution requirement of 
paragraph (a)(3) of this section.
    (vi) Sixth plan year. For the sixth plan year, 1980, the plan will 
continue to be a multiemployer plan, provided that no employer 
contributes 75 percent or more of the total amount of contributions made 
under the plan for the plan year.

    (e) Retention of records. (1) For plan years ending prior to 
September 3, 1974, a plan may be required to furnish proof that it met 
the requirements of section 414(f) and this section for each plan year 
ending prior to that date to the extent necessary to show the 
applicability of the 75 percent test provided in paragraph (c) of this 
section.
    (2) For plan years ending after September 2, 1974, a plan may be 
required to furnish proof that it met the requirements of section 414(f) 
and this section for 6 immediately preceding plan years.

(Secs. 414(f) and 7805 of the Internal Revenue Code of 1954 (88 Stat. 
927, 26 U.S.C. 414(f); 68A Stat. 917; 26 U.S.C. 7805))

[T.D. 7552, 43 FR 29940, July 12, 1978]



Sec. 1.414(g)-1  Definition of plan administrator.

    (a) In general. For purposes of part I of subchapter D of chapter 1 
of the Code and the regulations thereunder, if the instrument under 
which the plan is operated for a plan year specifically designates a 
person or a group of persons as plan administrator, the person or group 
of persons collectively is the plan administrator for the plan year. The 
instrument may specifically designate a plan administrator--
    (1) By name,
    (2) By reference to the person or group of persons holding a named 
position or positions,
    (3) By reference to a procedure established under the terms of the 
instrument pursuant to which a plan administrator is designated, or
    (4) By reference to the person or group of persons charged with 
specific responsibilities of plan administrator. Consistent with the 
provisions of section 405 (c) (1) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1105 (c) (1)), a plan may provide for 
the allocation of specific responsibilities of plan administrator among 
named persons and for named persons to designate others to carry out 
such responsibilities. A person or group of persons may be designated as 
plan administrator in accordance with the

[[Page 596]]

rules of this paragraph even though the person or group of persons does 
not carry the specific title ``plan administrator''. In the absence of a 
person or group of persons designated as the plan administrator 
(individually, collectively, or by designation of different specific 
administrative responsibilities), the plan administrator for the plan 
year is the person or group of persons specified in paragraph (b) of 
this section.
    (b) Plan administrator not specifically designated. If no person or 
group of persons is specifically designated as the plan administrator 
for a plan year by the instrument under which the plan is operated, the 
plan administrator for such year is the person or group of persons 
determined under the following rules:
    (1) Single employer. In the case of a plan maintained by a single 
employer, the employer is the plan administrator. If the employer is a 
corporation, the corporation is the plan administrator. However, the 
corporation's board of directors may authorize a person or group of 
persons to fulfill responsibilities of the corporation as plan 
administrator. In the absence of such authorization, any corporate 
officer authorized under law, corporate by-laws, or resolution of the 
board of directors to act on behalf of the corporation with respect to 
contracts of a value equivalent to the fair market value of the assets 
of the plan shall be presumed to have authority to fulfill 
responsibilities of the corporation as plan administrator. For purposes 
of this paragraph (b) (1), ``employer'' means the ``employer'' as 
defined in section 3 (5) of the Employee Retirement Income Security Act 
of 1974 (29 U.S.C. 1003 (5)).
    (2) Employee organization. In the case of a plan maintained by an 
employee organization, the employee organization is the plan 
administrator.
    (3) Group representing the parties. In the case of a plan maintained 
by two or more employers, or jointly by one or more employers and one or 
more employee organizations, the association, committee, joint board of 
trustees, or other similar group of representatives of the parties who 
maintain the plan, as the case may be, is the plan administrator. For 
purposes of this subparagraph (3), a plan shall be considered maintained 
by two or more employers or jointly by one or more employers and one or 
more employee organizations only if none of the parties has the express 
power, under the terms of the instrument under which the plan is 
operated, to terminate the plan unilaterally.
    (4) Person in control of assets. In any case where a plan 
administrator may not be determined by application of paragraphs (a) and 
(b), (1), (2), and (3) of this section, the plan administrator is the 
person or persons actually responsible, whether or not under the terms 
of the plan, for the control, disposition, or management of the cash or 
property received by or contributed to the plan, irrespective of whether 
such control, disposition, or management is exercised directly by such 
person or persons or indirectly through an agent or trustee designated 
by such person or persons.

(Secs. 414(g) and 7805 of the Internal Revenue Code of 1954 (88 Stat. 
927, 68A Stat 917; 26 U.S.C. 414(g), 7805))

[T.D. 7618, 44 FR 27657, May 11, 1979]



Sec. 1.414(l)-1  Mergers and consolidations of plans or transfers of plan assets.

    (a) In general--(1) Scope of the regulations. Sections 401(a)(12) 
and 414(l) apply only to plans to which section 411 applies without 
regard to section 411(e)(2). Thus, for example, these sections do not 
apply to a governmental plan within the meaning of section 414(d); a 
church plan, within the meaning of section 414(e), for which there has 
not been made the election under section 410(d) to have the 
participation, vesting, funding, etc. requirements apply; or a plan 
which at no time after September 2, 1974, provided for employer 
contributions.
    (2) General rule. Under section 414(l),
    (i) A trust which forms a part of a plan will not constitute a 
qualified trust under section 401, and
    (ii) A plan will not be treated as being qualified under section 403 
(a) and 405 (a), unless, in the case of a merger or consolidation (as 
defined in paragraph (b)(2) of this section), or a

[[Page 597]]

transfer of assets or liabilities (as defined in paragraph (b)(3) of 
this section), the following condition is satisfied. This condition 
requires that each participant receive benefits on a termination basis 
(as defined in paragraph (b)(5) of this section) from the plan 
immediately after the merger, consolidation or transfer which are equal 
to or greater than the benefits the participant would receive on a 
termination basis immediately before the merger, consolidation, or 
transfer.
    (b) Definitions. For purposes of this section:
    (1) Single plan. A plan is a ``single plan'' if and only if, on an 
ongoing basis, all of the plan assets are available to pay benefits to 
employees who are covered by the plan and their beneficiaries. For 
purposes of the preceding sentence, all the assets of a plan will not 
fail to be available to provide all the benefits of a plan merely 
because the plan is funded in part or in whole with allocated insurance 
instruments. A plan will not fail to be a single plan merely because of 
the following:
    (i) The plan has several distinct benefit structures which apply 
either to the same or different participants,
    (ii) The plan has several plan documents,
    (iii) Several employers, whether or not affiliated, contribute to 
the plan,
    (iv) The assets of the plan are invested in several trusts or 
annuity contracts, or
    (v) Separate accounting is maintained for purposes of cost 
allocation but not for purposes of providing benefits under the plan.

However, more than one plan will exist if a portion of the plan assets 
is not available to pay some of the benefits. This will be so even if 
each plan has the same benefit structure or plan document, or if all or 
part of the assets are invested in one trust with separate accounting 
with respect to each plan.
    (2) Merger or consolidation. The terms ``merger'' or 
``consolidation'' means the combining of two or more plans into a single 
plan. A merger or consolidation will not occur merely because one or 
more corporations undergo a reorganization (whether or not taxable). 
Furthermore, a merger or consolidation will not occur if two plans are 
not combined into a single plan, such as by using one trust which limits 
the availability of assets of one plan to provide benefits to 
participants and beneficiaries of only that plan.
    (3) Transfer of assets or liabilities. A ``transfer of assets or 
liabilities'' occurs when there is a diminution of assets or liabilities 
with respect to one plan and the acquisition of these assets or the 
assumption of these liabilities by another plan. For example, the 
shifting of assets or liabilities pursuant to a reciprocity agreement 
between two plans in which one plan assumes liabilities of another plan 
is a transfer of assets or liabilities. However, the shifting of assets 
between several funding media used for a single plan (such as between 
trusts, between annuity contracts, or between trusts and annuity 
contracts) is not a transfer of assets or liabilities.
    (4) Spinoff. The term ``spinoff'' means the splitting of a single 
plan into two or more plans.
    (5) Benefits on a termination basis. (i) The term ``benefits on a 
termination basis'' means the benefits that would be provided 
exclusively by the plan assets pursuant to section 4044 of the Employee 
Retirement Income Security Act of 1974 (``ERISA'') and the regulations 
thereunder if the plan terminated. Thus, the term does not include 
benefits that are guaranteed by the Pension Benefit Guaranty 
Corporation, but not provided by the plan assets.
    (ii) For purposes of determining the benefits on a termination 
basis, the allocation of assets to various priority categories under 
section 4044 of ERISA must be made on the basis of reasonable actuarial 
assumptions. The assumptions used by the Pension Benefit Guaranty 
Corporation as of the date of the merger or spinoff are deemed 
reasonable for this purpose.
    (iii) If a change in the benefit structure of a plan in conjunction 
with a merger, consolidation, or transfer of assets or liabilities 
alters the benefits on a termination basis, the change should be 
designated, at the time the merger, consolidation, or transfer occurs, 
to be effective either immediately before or immediately after that 
occurrence. In the event that no designation

[[Page 598]]

is made, the change in the benefit structure will be deemed to occur 
immediately after the merger, consolidation, or transfer of assets or 
liabilities.
    (6) Lower funded plan. (i) The term ``lower funded plan'' generally 
means the plan which, immediately prior to the merger, would have its 
assets exhausted in a higher priority category than the other plan.
    (ii) Where two plans, immediately prior to the merger, would have 
their assets exhausted in the same priority category of section 4044 of 
ERISA in the event of termination, the lower funded plan is the one in 
which the assets would satisfy a lesser proportion of the liability 
allocated to that priority category.
    (7) Priority category. The term ``priority category'' means the 
category of benefits described in each paragraph of section 4044(a) of 
ERISA. References to higher or highest priority categories refer to 
those priority categories which receive the first allocation of asserts, 
i.e. the lowest paragraph numbers in section 4044(a).
    (8) Separate accounting of assets. The term ``separate accounting of 
assets'' means the maintenance of an asset account with respect to a 
given group of participants which is:
    (i) Credited with contributions made to the plan on behalf of the 
participants and with its allocable share of investment income, if any, 
and
    (ii) Charged with benefits paid to the participants, and with its 
allocable share of investment losses or expenses.
    (9) Present value of accrued benefit. For purposes of this section, 
the present value of an accrued benefit must be determined on the basis 
of reasonable actuarial assumptions. For this purpose, the assumptions 
used by the Pension Benefit Guaranty Corporation as of the date of the 
merger or spinoff are deemed reasonable.
    (10) Valuation of plan assets. In determining the value of a plan's 
assets, the standards set forth in regulations prescribed by the Pension 
Benefit Guaranty Corporation (29 CFR Part 2611) shall be applied.
    (11) Date of merger or spinoff. The actual date of a merger or 
spinoff shall be determined on the basis of the facts and circumstances 
of the particular situation. For purposes of this determination, the 
following factors, none of which is necessarily controlling, are 
relevant:
    (i) The date on which the affected employees stop accruing benefits 
under one plan and begin coverage and benefit accruals under another 
plan.
    (ii) The date as of which the amount of assets to be eventually 
transferred is calculated.
    (iii) If the merger or spinoff agreement provides that interest is 
to accrue from a certain date to the date of actual transfer, the date 
from which such interest will accrue.
    (c) Application of section 414(l)--(1) Two or more plans. (i) 
Section 414(l) does not apply unless more than a single plan is 
involved. It also does not apply unless at least a single plan assumes 
liabilities from another plan or obtains assets from another plan (as in 
a merger or spinoff). For purposes of section 414(l), a transfer of 
assets or liabilities will not be deemed to occur merely because a 
defined contribution plan is amended to become a defined benefit plan. 
This rule will apply even if, under the facts and circumstances of a 
particular case, a termination of the defined contribution plan will be 
considered to have occurred for purposes of other provisions of the 
Code.
    (ii) The requirements of this subparagraph may be illustrated as 
follows:

    Example. After acquiring Corporation B, Corporation A amends 
Corporation B's defined benefit plan (Plan B) to provide the same 
benefits as Corporation A's defined benefit plan (Plan A). The assets of 
Plan B are transferred to the trust containing the assets of Plan A in 
such a manner that the assets of each plan: (1) are separately accounted 
for, and (2) are not available to pay benefits of the other plan. 
Because of condition (2) there are still two plans and, therefore, a 
merger did not occur. As a result, section 414(l) does not apply. If at 
some later date Corporation A were to sell Corporation B and transfer 
the assets of Plan B that were separately accounted for to another trust 
or to an annuity contract solely for the purpose of providing Plan B's 
benefits, this transfer would also not involve section 414(l). This is 
so because Plan B was a separate plan before the entire transaction and 
because no plan assumed liabilities or obtained assets from another 
plan. If, on the other hand, Corporation A merged Plan A and Plan B at 
the time of the acquisition of Corporation B by deleting condition (2) 
above, then section 414(l)

[[Page 599]]

would apply both to the merger of Plan A and Plan B and to the spinoff 
of Plan B from the merged plan. The spinoff would have to satisfy the 
requirements of paragraph (n) of this section, even if the assets 
attributable to Plan A and Plan B were separately accounted for in order 
to allocate funding costs.

    (2) Multiemployer plans. Except to the extent provided by 
regulations of the Pension Benefit Guaranty Corporation, section 114(l) 
does not apply to any transaction to the extent that participants either 
before or after that transaction are covered under a multiemployer plan 
within the meaning of section 414(f). Until these regulations are 
issued, section 414(l) does not apply to any of the following 
situations:
    (i) A multiemployer plan is split into two or more plans, one or 
more of which are not multiemployer plans, or (ii) A single employer 
plan is merged into a multiemployer plan.

Therefore, if some (but not all) of the participants in a single 
employer plan become participants in a multiemployer plan under an 
agreement in which the multiemployer plan assumes all the liabilities of 
the single employer plan with respect to these participants and in which 
some or all of the assets of the single employer plan are transferred to 
the multiemployer plan, section 414(l) applies, but only with respect to 
the participants in the single employer plan who did not transfer to the 
multiemployer plan.
    (d) Merger of defined contribution plans. In the case of a merger of 
two or more defined contribution plans, the requirements of section 
414(l) will be satisfied if all of the following conditions are met:
    (1) The sum of the account balances in each plan equals the fair 
market value (determined as of the date of the merger) of the entire 
plan assets.
    (2) The assets of each plan are combined to form the assets of the 
plan as merged.
    (3) Immediately after the merger, each participant in the plan as 
merged has an account balance equal to the sum of the account balances 
the participant had in the plans immediately prior to merger.
    (e) Merger of defined benefit plans--(1) General rule. Section 
414(l) compares the benefits on a termination basis before and after the 
merger. If the sum of the assets of all plans is not less than the sum 
of the present values of the accrued benefit (whether or not vested) of 
all plans, the requirements of section 414(l) will be satisfied merely 
by combining the assets and preserving each participant's accrued 
benefits. This is so because all the accrued benefits of the plan as 
merged are provided on a termination basis by the plan as merged. 
However, if the sum of the assets of all plans is less than the sum of 
the present values of the accrued benefits (whether or not vested) in 
all plans, the accrued benefits in the plan as merged are not provided 
on a termination basis.
    (2) Special schedule of benefits. Generally, for some participants, 
the benefits provided on a termination basis for the plan as merged 
would be different from the benefits provided on a termination basis in 
the plans prior to merger if the assets were merely combined and if each 
participant retained his accrued benefit. Some participants would, 
therefore, receive greater benefits on a termination basis as a result 
of the merger and some other participants would receive smaller 
benefits. Accordingly, the requirements of section 414(l) would not be 
satisfied unless the distribution on termination were modified in some 
manner to prevent any participant from receiving smaller benefits on a 
termination basis as a result of the merger. This is accomplished 
through modifying the application of section 4044 of ERISA by inserting 
a special schedule of benefits.
    (f) Operational rules for the special schedule. The application of 
section 4044 of ERISA as modified by the schedule of benefits is 
accomplished by the following steps:
    (1) Section 4044 is applied in the plan as merged through the 
priority categories fully satisfied by the assets of the lower funded 
plan immediately prior to the merger.
    (2) The assets in the plan as merged are then allocated to the next 
priority category as a percentage of the value of the benefits that 
would otherwise be allocated to that priority category. That percentage 
is the ratio of (i) the assets allocated to the first priority

[[Page 600]]

category not fully satisfied by the lower funded plan immediately prior 
to the merger to (ii) the assets that would have been allocated had that 
priority category been fully satisfied.
    (3) A schedule of benefits is formed listing participants and 
scheduled accrued benefits. The scheduled accrued benefit is the excess 
of the benefits provided on a termination basis with respect to any 
participant from the plans immediately prior to the merger, over the 
benefits provided on a termination basis in subparagraphs (1) and (2) of 
this paragraph immediately after the merger. After allocating the assets 
in accordance with subparagraph (2) of this paragraph, the assets are 
allocated to the schedule of benefits as follows:
    (i) First the assets are allocated to the scheduled benefits to the 
extent that the participant would have benefits provided in subparagraph 
(4) of this paragraph if there were no scheduled benefits.
    (ii) Then the assets are allocated to the scheduled benefits to the 
extent that the participant would have benefits provided pursuant to 
subparagraph (5) of this paragraph if there were no scheduled benefits.

These assets should be allocated first to those scheduled benefits that 
are in the highest priority category under section 4044.
    (4) The assets are then allocated to those benefits in the priority 
category described in subparagraph (2) of this paragraph with respect to 
which assets were not allocated. This allocation is made to the extent 
that these benefits are not associated with benefits in the schedule.
    (5) Finally, the assets are allocated in accordance with section 
4044 with respect to priority categories lower than the priority 
category described in subparagraph (4) of this paragraph. This 
allocation is made to the extent that these benefits are not associated 
with benefits in the schedule.
    (g) Successive mergers--(1) In general. In the case of a current 
merger of a defined benefit plan with another defined benefit plan which 
as a result of a previous merger has a special schedule, the rules of 
paragraphs (e) and (f) of this section apply as if the schedule were 
considered a category described in section 4044 of ERISA. Thus, a second 
schedule may be formed as a result of the current merger. The second 
schedule will be inserted in the priority category of section 4044 
described in paragraph (f)(2) of this section as of the date of the 
current merger. This priority category may be higher, lower, or within 
the schedule of benefits existing on account of a previous merger. If 
this priority schedule is inserted within a schedule of benefits, a new 
single schedule of benefits replacing the old schedule of benefits would 
in effect be created.
    (2) Allocation of assets. Assets in the new schedule of benefits are 
allocated as follows:
    (i) First to the benefits remaining in the old schedule to the 
extent that there are assets immediately prior to the second merger to 
satisfy the original benefits,
    (ii) Then to the benefits provided on a termination basis from the 
plans immediately prior to the second merger to the extent that they are 
not provided before the schedule after the second merger or in 
subdivision (i) of this subparagraph,
    (iii) Then to benefits remaining in the original schedule not 
included in subdivision (i) of this subparagraph.
    (h) De minimis rule for merger of defined benefit plan--(1) In 
general. In the case of a merger of a defined benefit plan (``smaller 
plan'') whose liabilities (i.e., the present value of accrued benefits, 
whether or not vested) are less than 3 percent of the assets of another 
defined benefit plan (``larger plan'') as of at least one day in the 
larger plan's plan year in which the merger of the two plans occurs, 
section 414(l) will be deemed to be satisfied if the following condition 
is met. The condition requires that a special schedule of benefits 
(consisting of all the benefits that would be provided by the smaller 
plan on a termination basis just prior to the merger) be payable in a 
priority category higher than the highest priority category in section 
4044 of ERISA. Assets will be allocated to that schedule in accordance 
with the allocation of assets to scheduled benefits in paragraph (f)(3) 
of this section.
    (2) Application to a series of mergers. In the case of a series of 
such mergers in

[[Page 601]]

a given plan year of the larger plan, the rule described in subparagraph 
(1) of this paragraph will apply only if the sum of the liabilities 
(whether or not vested) assumed by the larger plan are less than 3 
percent of the assets of the larger plan as of at least one day in the 
plan year of the larger plan in which the mergers occurred.
    (3) Application to a merger occurring over more than one plan year. 
In the case of a merger of a smaller plan or a portion thereof with a 
larger plan designed to occur in steps over more than one plan year of 
the larger plan, the entire transaction will be deemed to occur in the 
plan year of the larger plan which contains the first of these steps.
    (4) Liabilities of the smaller plan. For purposes of subparagraphs 
(2) and (3) of this paragraph, mergers satisfying paragraphs (e), (f) or 
(g) of this section will be ignored in determining the sum of the 
liabilities assumed by the larger plan.
    (i) Data maintenance--(1) Alternative to the special schedule. In 
the case of a merger which would require the creation of a special 
schedule in order to satisfy section 414(l), the schedule need not be 
created at the time of the merger if data sufficient to create the 
schedule is maintained. The schedule would only have to be created in 
the event of a subsequent plan termination or a subsequent spinoff. In 
that case the schedule must be determined as of the date of the merger.
    (2) Required data. The data that must be maintained depends on the 
plan, and care should be taken to ensure that all necessary data is 
maintained. Furthermore, in order to take advantage of the data 
maintenance alternative provided in this paragraph, an enrolled actuary 
must certify to the plan administrator that each element of data 
necessary to determine the schedule as of the date of the merger is 
maintained. This certification must be based either upon the enrolled 
actuary's independent examination of the data, or upon his reliance, 
which under the circumstances of the particular situation must be 
reasonable, upon a written statement of the plan administrator 
concerning what data is actually being maintained.
    (j) Five year rule--(1) Limitation on the required use of the 
special schedule. A plan will not fail to satisfy the requirements of 
section 414(l) merely because the effects of the special schedule 
created pursuant to paragraphs (e)(2) or (h) of this section are ignored 
5 years after the date of a merger. Furthermore, the date maintained 
pursuant to paragraph (i) of this section need not be maintained for 
more than 5 years after the merger, if the plan does not have a spinoff 
or a termination within 5 years.
    (2) Illustration. If Plans A and B merge to form Plan AB and if Plan 
AB merges with Plan C 3 years later to form Plan ABC and if Plan ABC 
terminates 4 years later, the data relating to the merger of Plans A and 
B need not be maintained for more than 5 years after the merger of Plans 
A and B. In addition, after 5 years have elapsed after the merger of 
Plans A and B, the effect of any special schedule created by the merger 
of Plans A and B on the schedule created by the merger of Plans AB and C 
may be ignored in determining the later schedule.
    (k) Examples. The provisions of paragraphs (e) through (j) of this 
section may be illustrated by the following examples:

    Example (1). Plan A, whose assets are $220,000, is to be merged with 
Plan B, whose assets are $200,000. Plan A has three employees. Plan B 
has two employees. If Plans A and B were to terminate just prior to the 
merger, the benefits provided on a termination basis would be as 
follows:

[[Page 602]]



                                                                                             Plan A                                                                                             
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     (1)--Annual accrued benefits       (2)--Present value of accrued         (3)--Fair     (4)--Benefits on a termination basis
                                                                  ---------------------------------                benefits                 market value  --------------------------------------
                                                                                                   ---------------------------------------    of assets                                         
            Priority category of section 4044 of ERISA                                                                                      allocated to                                        
                                                                      EE1        EE2        EE3         EE1          EE2          EE3         priority         EE1          EE2          EE3    
                                                                                                                                              category                                          
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
3................................................................    $10,000  .........  .........     $120,000  ...........  ...........        $120,000      $10,000  ...........  ...........
4................................................................      2,000     $4,000  .........       24,000      $44,000  ...........          68,000        2,000       $4,000  ...........
5................................................................  .........      3,000     $4,000  ...........       33,000      $40,000          32,000  ...........     \1\1,315    \2\$1,753
6................................................................  .........  .........      1,000  ...........  ...........       10,000  ..............  ...........  ...........  ...........
                                                                  ------------------------------------------------------------------------------------------------------------------------------
    Total........................................................  .........  .........  .........  ...........  ...........  ...........         220,000       12,000        5,315       1,753 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ $3,000  x  $32,000  $73,000 i.e. accrued benefit  x  assets available for priority category 5--Total present value of accrued benefits in category 5.                               
\2\ $4,000  x  $32,000  $73,000.                                                                                                                                                        


                                                                                             Plan B                                                                                             
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  (1)--Annual accrued benefits        (2)--Present value of accrued benefits     (3)--Fair      (4)--Benefits on a termination  
                                                            -----------------------------------------------------------------------------------    market                   basis               
                                                                                                                                                  value of  ------------------------------------
         Priority category of section 4044 of ERISA                                                                                                assets                                       
                                                             EE1  EE2  EE3      EE4         EE5     EE1  EE2  EE3      EE4            EE5        allocated                                      
                                                                                                                                                to priority  EE1  EE2  EE3      EE4        EE5  
                                                                                                                                                  category                                      
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
3..........................................................  ...  ...  ...      $15,000  .........  ...  ...  ...     $195,000  ..............     $195,000  ...  ...  ...      $15,000  .......
4..........................................................  ...  ...  ...  ...........     $5,000  ...  ...  ...  ...........         $50,000        5,000  ...  ...  ...  ...........  \1\ $50
                                                                                                                                                                                               0
5..........................................................  ...  ...  ...  ...........      8,000  ...  ...  ...  ...........          80,000  ...........  ...  ...  ...  ...........  .......
                                                            ------------------------------------------------------------------------------------------------------------------------------------
Total......................................................  ...  ...  ...  ...........  .........  ...  ...  ...  ...........  ..............      200,000  ...  ...  ...       15,000     500 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ $5,000  $5,000  x  $50,000.                                                                                                                                                         


[[Page 603]]

    Because Plan B's assets are exhausted in a higher priority category 
than Plan A's assets, Plan B is the lower funded plan. A schedule will, 
therefore, be inserted in Priority Category 4 of the plan as merged 
after providing 10% of the benefits provided in category 4, i.e. the 
ratio of $5,000 assets in Plan B allocated to category 4 to the $50,000 
liability in category 4. The schedule would be constructed as follows:

----------------------------------------------------------------------------------------------------------------
                                                   (2)--Benefits                                                
                                   (1)--Benefits   provided from    (3)--10% of    (4)--Benefits                
                                       on a          priority        benefits        provided      (5)--Schedule
               EE                   termination     categories      provided in       before        of benefits 
                                   basis before     higher than      priority     schedule (2) +     (1) - (4)  
                                      merger        Category 4      Category 4          (3)                     
----------------------------------------------------------------------------------------------------------------
1...............................         $12,000         $10,000            $200         $10,200          $1,800
2...............................           5,315  ..............             400             400           4,915
3...............................           1,753  ..............  ..............  ..............           1,753
4...............................          15,000          15,000  ..............          15,000  ..............
5...............................             500  ..............             500             500  ..............
----------------------------------------------------------------------------------------------------------------

    Example (2). The facts are the same as in Example (1). The plan, 
however, terminates one year later. Furthermore, no employee has accrued 
additional benefits during the year except that the $2,000 benefit for 
EE1, that was originally in category 4 is now in category 3. 
The assets would be allocated to the priority categories to the extent 
that there are assets to cover the following benefits.

----------------------------------------------------------------------------------------------------------------
                 Priority termination category                     EE1       EE2       EE3       EE4       EE5  
----------------------------------------------------------------------------------------------------------------
3.............................................................   $12,000  ........  ........   $15,000  ........
10% of 4......................................................  ........      $400  ........  ........      $500
Schedule of benefits included in balance of Category 4........  ........     3,600  ........  ........  ........
Schedule of benefits included in Category 5...................  ........     1,315    $1,753  ........  ........
Schedule of benefits included in Category 6...................  ........  ........  ........  ........  ........
Balance of Category 4 not included in schedule................  ........  ........  ........  ........     4,500
Balance of Category 5 not included in schedule................  ........     1,685     2,247  ........     8,000
Balance of Category 6 not included in schedule................  ........  ........     1,000  ........  ........
----------------------------------------------------------------------------------------------------------------

    (l) Merger of defined benefit and defined contribution plan. In the 
case of a merger of a defined benefit plan with a defined contribution 
plan, one of the plans before the merger should be converted into the 
other type of plan (i.e., the defined benefit converted into a defined 
contribution or the defined contribution converted into a defined 
benefit) and either paragraph (d) or paragraphs (e) through (j) of this 
section, whichever is appropriate, should be applied.
    (m) Spinoff of a defined contribution plan. In the case of a spinoff 
of a defined contribution plan, the requirements of section 414(l) will 
be satisfied if after the spinoff--
    (1) The sum of the account balances for each of the participants in 
the resulting plans equals the account balance of the participant in the 
plan before the spinoff, and
    (2) The assets in each of the plans immediately after the spinoff 
equals the sum of the account balances for all participants in that 
plan.
    (n) Spinoff of a defined benefit plan--(1) General rule. In the case 
of a spinoff of a defined benefit plan, the requirements of section 
414(l) will be satisfied if--
    (i) All of the accrued benefits of each participant are allocated to 
only one of the spun off plans, and
    (ii) The value of the assets allocated to each of the spun off plans 
is not less than the sum of the present value of the benefits on a 
termination basis in the plan before the spin off for all participants 
in that spun off plan.
    (2) De minimis rule. In the case of a spin off the requirements of 
section 414(l) will be deemed to be satisfied if the value of the assets 
spun off--
    (i) Equals the present value of the accrued benefits spun off 
(whether or not vested), and
    (ii) In conjunction with other assets spun off during the plan year 
in which the spinoff occurs in accordance with this subparagraph, is 
less than 3 percent of the assets as of at least one day in that year.


[[Page 604]]


Spinoffs occurring in previous or subsequent plan years are ignored if 
they are not part of a single spinoff designed to occur in steps over 
more than one plan year.
    (3) Special temporary rule. In the case of a defined benefit plan 
maintained for different groups of employees, which is a single plan (as 
defined in paragraph (b)(l) of this section) and under which there has 
been separate accounting of assets for each group, a spinoff of the plan 
on or before July 1, 1978, into a separate plan for each group will be 
deemed to satisfy section 414 (l) if--
    (i) All the liabilities with respect to each group of employees are 
allocated to a separate plan for that group of employees, and
    (ii) The assets that are separately accounted for with respect to 
each group of employees are allocated to the separate plan for that 
group of employees.

For purposes of this subparagraph, a separate accounting of assets will 
not be considered to have occurred to the extent that the assets 
allocated to each single plan are determined by an historical re-
creation of benefits, contributions, investment gains, etc.
    (o) Transfers of assets or liabilities. Any transfer of assets or 
liabilities will for purposes of section 414 (l) be considered as a 
combination of separate mergers and spinoffs using the rules of 
paragraphs (d), (e) through (j), (l), (m), or (n) of this section, 
whichever is appropriate. Thus, for example, if in accordance with the 
transfer of one or more employees, a block of assets and liabilities are 
transferred from Plan A to Plan B, each of which is a defined benefit 
plan, the transaction will be considered as a spinoff from Plan A and a 
merger of one of the spinoff plans with Plan B. The spinoff and merger 
described in the previous sentence would be subject to the requirements 
of paragraphs (n) and (e) through (j) of this section respectively.

[T.D. 7638, 44 FR 48195, Aug. 17, 1979]



Sec. 1.414(q)-1   Highly compensated employee.

    Q&A-1--Q&A-8: [Reserved] See Sec. 1.414(q)-1T, Q&A-1 through Q&A-8 
for further guidance.
    Q-9: How is the top-paid group determined?
    A-9: (a) [Reserved] See Sec. 1.414(q)-1T, Q&A-9(a) for further 
guidance.
    (b) Number of employees in the top-paid group--(1) Exclusions. The 
number of employees who are in the top-paid group for a year is equal to 
20 percent of the total number of active employees of the employer for 
such year. However, solely for purposes of determining the total number 
of active employees in the top-paid group for a year, the employees 
described in Sec. 1.414(q)-1T, A-9(b)(1) (i), (ii) and (iii)(B) are 
disregarded. Paragraph (g) of this A-9 provides rules for determining 
those employees who are excluded for purposes of applying section 
414(r)(2)(A), relating to the 50-employee requirement applicable to a 
qualified separate line of business.
    (i) through (iii) [Reserved] See Sec. 1.414(q)-1T, Q&A-9(b)(1) (i) 
through (iii) for further guidance.
    (2) Alternative exclusion provisions--(i) and (ii) [Reserved] See 
Sec. 1.414(q)-1T, Q&A-9(b)(2) (i) and (ii) for further guidance.
    (iii) Method of election. The elections in this paragraph (b)(2) 
must be provided for in all plans of the employer and must be uniform 
and consistent with respect to all situations in which the section 
414(q) definition is applicable to the employer. Thus, with respect to 
all plan years beginning in the same calendar year, the employer must 
apply the test uniformly for purposes of determining its top-paid group 
with respect to all its qualified plans and employee benefit plans. If 
either election is changed during the determination year, no 
recalculation of the look-back year based on the new election is 
required, provided the change in election does not result in 
discrimination in operation.
    (c) through (f) [Reserved] See Sec. 1.414(q)-1T, Q&A-9 (c) through 
(f) for further guidance.
    (g) Excluded employees under section 414(r)(2)(A)--(1) In general. 
This paragraph (g) provides the rules for determining which employees 
are excluded employees for purposes of applying section 414(r)(2)(A), 
relating to the 50-employee requirement applicable to a qualified 
separate line of business.

[[Page 605]]

    (2) Excluded employees--(i) Age and service exclusion. All employees 
are excluded who are described in Sec. 1.414(q)-1T, A-9(b)(1)(i) 
(relating to exclusions based on age or service). For this purpose, the 
rules in Sec. 1.414(q)-1T, A-9 (e) and (f) (relating respectively to the 
17\1/2\-hour rule and the 6-month rule) apply. However, the election in 
Sec. 1.414(q)-1T, A-9(b)(2)(i) (permitting the employer to elect reduced 
minimum age or service requirements) does not apply.
    (ii) Nonresident alien exclusion. All employees are excluded who are 
described in Sec. 1.414(q)-1T, A-9(b)(1)(ii) (relating to the exclusion 
of nonresident aliens with no U.S.- source income from the employer).
    (iii) Inclusion of employees covered under a collective bargaining 
agreement. All employees are included who are described in 
Sec. 1.414(q)-1T, A-9(b)(1)(iii)(A) (relating to employees covered under 
a collective bargaining agreement) and who are not otherwise described 
in paragraph (g)(2) (i) or (ii) of this A-9. For this purpose, the 
exclusion in Sec. 1.414(q)-1T, A- 9(b)(1)(iii)(B) and the related 
election in Sec. 1.414(q)-1T, A- 9(b)(2)(ii) do not apply.
    (3) Applicable period. The determination of which employees are 
excluded employees is made on the basis of the testing year specified in 
the regulations under section 414(r) and not on the basis of the 
determination year or the look-back year under section 414(q).
    (h) Effective date. The provisions of this A-9 apply to plan years 
and testing years beginning on or after January 1, 1994.
    Q&A-10 through Q&A-15: [Reserved] See Sec. 1.414(q)-1T, Q&A-10 
through Q&A-15 for further guidance.

[T.D. 8548, 59 FR 32915, June 27, 1994]



Sec. 1.414(q)-1T  Highly compensated employee (temporary).

    The following questions and answers relate to the definition of 
``highly compensated employee'' provided in section 414(q). The 
definitions and rules provided in these questions and answers are 
provided solely for purposes of determining the group of highly 
compensated employees.

                           Table of contents.

Q&A-1  General applicability of section 414(q).
Q&A-2  Definition of highly compensated employees.
Q&A-3  Definition of highly compensated active employees.
Q&A-4  Definition of highly compensated former employees.
Q&A-5  Definition of separation year.
Q&A-6  Definition of employer.
Q&A-7  Definition of employee.
Q&A-8  Definition of 5-percent owner.
Q&A-9  Definition of top-paid group.
Q&A-10  Definition of officer and rules on inclusion of officers in 
          highly compensated group.
Q&A-11  Rules with respect to family aggregation.
Q&A-12  Definition of family member.
Q&A-13  Definition of compensation.
Q&A-14  Rules with respect to the relevant determination periods.
Q&A-15  Transition rule applicable to plan years beginning in 1987 and 
          1988 for certain employers that have plans that must comply 
          with the provisions of section 401(k)(3) or 401(m)(2).

    Q-1: To what employee benefit plans and statutory provisions is the 
definition of highly compensated employee contained in section 414(q) 
applicable?
    A-1: (a) In general. This definition is applicable to statutory 
provisions that incorporate the definition by reference.
    (b) Qualified retirement plans--(1) In general. Generally, this 
definition is incorporated in many of the nondiscrimination requirements 
applicable to pension, profit-sharing, and stock bonus plans qualified 
under section 401(a). See, e.g., the nondiscrimination provisions of 
sections 401(a) (4) and (5), 401(k)(3), 401(l), 401(m), 406(b), 407(b), 
408(k), 410(b) and 411(d)(1). The definition is also incorporated by 
certain other provisions with respect to such plans, including the 
aggregation rules of section 414(m) and section 4975 (tax on prohibited 
transactions).
    (2) Not applicable where not incorporated by reference. This 
definition is not applicable to qualified plan provisions that do not 
incorporate it. See, e.g., section 415 (limitations on contributions and 
benefits), with the exception of section 415(c)(3)(C) and 415(c)(6) 
(special rules for permanent and total disability and employee stock 
ownership plans respectively).

[[Page 606]]

    (c) Other employee benefit plans or arrangements. This definition is 
incorporated by various sections relating to employee benefit 
provisions. See, e.g., section 89 (certain other employee benefit 
plans), section 106 (accident and health plans), 117(d) (qualified 
tuition reduction), section 125 (cafeteria plans), section 129 
(dependent care assistance programs), section 132 (certain fringe 
benefits), section 274 (certain entertainment, etc. expenses), section 
423(b) (employee stock purchase plan provisions), section 501(c) (17) 
and (18) (certain exempt trusts providing benefits to employees), and 
section 505 (certain exempt organizations or trusts providing benefits 
to individuals). See the respective sections for the applicable 
effective dates.
    (d) ERISA. This definition is not determinative with respect to any 
provisions of Title I of the Employee Retirement Income Security Act of 
1974 (ERISA), unless it is explicitly incorporated by reference (e.g., 
section 408(b)(1)(B)).
    Q-2: Who is a highly compensated employee?
    A-2: The group of employees (including former employees) who are 
highly compensated employees consists of both highly compensated active 
employees (see A-3 of this Sec. 1.414(q)-1T) and highly compensated 
former employees (see A-4 of this Sec. 1.414(q)-1T). In many 
circumstances, highly compensated active employees and highly 
compensated former employees are considered separately in applying the 
provisions for which the definition of highly compensated employees in 
section 414(q) is applicable. Specific rules with respect to the 
treatment of highly compensated active employees and highly compensated 
former employees will be provided in the regulations with respect to the 
sections to which the definition of highly compensated employees is 
applicable.
    Q-3: Who is a highly compensated active employee?
    A-3: (a) General rule. For purposes of the year for which the 
determination is being made (the determination year), a highly 
compensated active employee is any employee who, with respect to the 
employer, performs services during the determination year and is 
described in any one or more of the following groups applicable with 
respect to the look-back year calculation and/or determination year 
calculation for such determination year. See A-14 for rules relating to 
the periods for which the look-back year calculation and determination 
year calculation are to be made.
    (1) Look-back year calculation.
    (i) 5-percent owner. The employee is a 5-percent owner at any time 
during the look-back year (i.e., generally, the 12-month period 
immediately preceding the determination year; see A-14. (See A-8 of this 
Sec. 1.414(q)-1T.)
    (ii) Compensation above $75,000. The employee receives compensation 
in excess of $75,000 during the look-back year.
    (iii) Compensation above $50,000 and top-paid group. The employee 
receives compensation in excess of $50,000 during the look-back year and 
is a member of the top-paid group for the look-back year. (See A-9 of 
this Sec. 1.414(q)-1T.)
    (iv) Officer. The employee is an ``includible officer'' during the 
look-back year. (See A-10 of this Sec. 1.414(q)-1T.)
    (2) Determination year calculation.
    (i) 5-percent owner. The employee is a 5-percent owner at any time 
during the determination year. (See A-8 of this Sec. 1.414(q)-1T.)
    (ii) Top-100 employees. The employee is both (A) described in 
paragraph (a)(1)(i), (ii) and/or (iv) of this A-3, when such paragraphs 
are modified to substitute the determination year for the look-back 
year, and (B) one of the 100 employees who receive the most compensation 
from the employer during the determination year.
    (b) Rounding and tie-breaking rules. In making the look-back year 
and determination year calculations for a determination year, it may be 
necessary for an employer to adopt a rule for rounding calculations 
(e.g., in determining the number of employees in the top-paid group). In 
addition, it may be necessary to adopt a rule breaking ties among two or 
more employees (e.g., in identifying those particular employees who are 
in the top-paid group or who are among the 100 most highly compensated 
employees). In such cases, the employer may adopt any rounding or tie-
breaking rules it desires, so long as

[[Page 607]]

such rules are reasonable, nondiscriminatory, and uniformly and 
consistently applied.
    (c) Adjustments to dollar thresholds--(1) Indexing of dollar 
thresholds. The dollar amounts in paragraph (a)(1) (i) and (ii) of this 
A-3 are indexed at the same time and in the same manner as the section 
415(b)(1)(A) dollar limitation for defined benefit plans.
    (2) Applicable dollar threshold. The applicable dollar amount for a 
particular determination year or look-back year is the dollar amount for 
the calendar year in which such determination year or look-back year 
begins. Thus, the dollar amount for purposes of determining the highly 
compensated active employees for a particular look-back year is based on 
the calendar year in which such look-back year begins, not the calendar 
year in which such look-back year ends or in which the determination 
year with respect to such look-back year begins.
    (d) Employees described in more than one group. An individual who is 
a highly compensated active employee for a determination year, by reason 
of being described in one group in paragraph (a) of this A-3, under 
either the look-back year calculation or the determination year 
calculation, is not disregarded in determining whether another 
individual is a highly compensated active employee by reason of being 
described in another group under paragraph (a). For example, an 
individual who is a highly compensated active employee for a 
determination year, by reason of being a 5-percent owner during such 
year, who receives compensation in excess of $50,000 during both the 
look-back year and the determination year, is taken into account in 
determining the group of employees who are highly compensated active 
employees for such determination year by reason of receiving more than 
$50,000, and being in the top-paid group under either or both the look-
back year calculation or determination year calculation for such 
determination year.
    (e) Examples. The following examples, in which the determination 
year and look-back year are the calendar year, are illustrative of the 
rules in paragraph (a) of this A-3. For purposes of these examples, the 
threshold dollar amounts in paragraph (a)(1) (ii) and (iii) of this A-3 
are not increased pursuant to paragraph (c) of this A-3.
    Example (1). Employee A, who is not at any time a 5-percent owner, 
an officer, or a member of the top-100 within the meaning of paragraph 
(a)(1) (i), or (iv), or (a)(2) (i) or (ii), but who was a member of the 
top-paid group for each year, is included in or excluded from the highly 
compensated groups as specified below for the following years:

------------------------------------------------------------------------
     Year         Compensation       Status              Comments       
------------------------------------------------------------------------
1986..........   $45,000         N/A...........  Although prior to      
                                                  414(q) effective date,
                                                  1986 constitutes the  
                                                  look-back year for    
                                                  purposes of           
                                                  determining the highly
                                                  compensated group for 
                                                  the 1987 determination
                                                  year.                 
1987..........    80,000         Excl..........  Excluded because A was 
                                                  not an employee       
                                                  described in paragraph
                                                  (a)(1) (ii) or (iii)  
                                                  of this A-3 for the   
                                                  look-back year (1986).
1988..........    80,000         Incl..........  Included because A was 
                                                  an employee described 
                                                  in paragraph (a)(1)   
                                                  (ii) or (iii) of this 
                                                  A-3 for the look-back 
                                                  year (1987).          
1989..........    45,000         Incl..........  Included because A was 
                                                  an employee described 
                                                  in paragraph (a)(1)   
                                                  (ii) or (iii) of this 
                                                  A-3 for the look-back 
                                                  year (1988).          
1990..........    45,000         Excl..........  Excluded because A was 
                                                  not an employee       
                                                  described in paragraph
                                                  (a)(1) (ii) or (iii)  
                                                  of this A-3 for the   
                                                  look-back year (1989).
------------------------------------------------------------------------

    Example (2). Assuming the same facts as those given in Example (1), 
except that A is a member of the top-100 employees within the meaning of 
paragraph (a)(2)(ii) of this A-3 for the 1987 year and 1990 year, the 
results are as follows:

------------------------------------------------------------------------
     Year         Compensation       Status              Comments       
------------------------------------------------------------------------
1986..........   $45,000         N/A...........  Although prior to      
                                                  414(q) effective date,
                                                  1986 constitutes the  
                                                  look-back year for    
                                                  purposes of           
                                                  determining the highly
                                                  compensated group for 
                                                  the 1987 determination
                                                  year.                 
1987..........    80,000         Incl..........  Included because A was 
                                                  an employee described 
                                                  in paragraph          
                                                  (a)(1)(ii) or (iii) of
                                                  this A-3 for the      
                                                  determination year    
                                                  (1987) and was        
                                                  described in paragraph
                                                  (a)(2)(ii) of this A-3
                                                  in that year.         
1988..........    80,000         Incl..........  Included because A was 
                                                  an employee described 
                                                  in paragraph          
                                                  (a)(1)(ii) or (iii) of
                                                  this A-3 for the look-
                                                  back year (1987).     

[[Page 608]]

                                                                        
1989..........    45,000         Incl..........  Included because A was 
                                                  an employee described 
                                                  in paragraph          
                                                  (a)(1)(ii) or (iii) of
                                                  this A-3 for the look-
                                                  back year (1988).     
1990..........    45,000         Excl..........  Excluded even though in
                                                  top-100 employees     
                                                  during 1990           
                                                  determination year    
                                                  because A was not an  
                                                  employee described in 
                                                  paragraph (a)(1)(ii)  
                                                  or (iii) of this A-3  
                                                  for the look-back year
                                                  (1989) or for the     
                                                  determination year    
                                                  (1990).               
------------------------------------------------------------------------

    A-4: Who is a highly compensated former employee?
    Q-4: (a) General rule. Except to the extent provided in paragraph 
(d) of this A-4, a highly compensated former employee for a 
determination year is any former employee who, with respect to the 
employer, had a separation year (as defined in A-5 of this 
Sec. 1.414(q)-1T) prior to the determination year and was a highly 
compensated active employee as defined in A-3 of this Sec. 1.414(q)-1T 
for either such employee's separation year or any determination year 
ending on or after the employee's 55th birthday. Thus, for example, an 
employee who is a highly compensated active employee for such employee's 
separation year, by reason of receiving over $75,000 during the look-
back year, is a highly compensated former employee for determination 
years after such employee's separation year.
    (b) Special rule for employees who perform no services for the 
employer in the determination year. For purposes of this rule, employees 
who perform no services for an employer during a determination year are 
treated as former employees. Thus, for example, an employee who 
performed no services for the employer during a determination year, by 
reason of a leave of absence during such year, is treated as a former 
employee for such year.
    (c) Dollar amounts for pre-1987 determination years. For 
determination years beginning before January 1, 1987, the dollar amounts 
in paragraph (a)(1)(B) and (C) of A-2 of this Sec. 1.414(q)-1T are 
$75,000 and $50,000 respectively.
    (d) Special rule for employees who separated from service before 
January 1, 1987--(1) Election of special rule. Employers may elect to 
apply paragraph (d)(2) of this A-4 in lieu of paragraph (a) of this A-4 
in determining whether former employees who separated from service prior 
to January 1, 1987, are highly compensated former employees. If this 
election is made with respect to any qualified plan, it must be provided 
for in the plan. If the employer makes this election with respect to any 
employee benefit plan, such election must be used uniformly for all 
purposes for which the section 414(q) definition is applicable. The 
election, once made, cannot be changed without the consent of the 
Commissioner.
    (2) Special definition of highly compensated former employee. A 
highly compensated former employee includes any former employee who 
separated from service with the employer prior to January 1, 1987, and 
was described in any one or more of the following groups during either 
the employee's separation year (or the year preceding such separation 
year) or any year ending on or after such individual's 55th birthday (or 
the last year ending before such employee's 55th birthday):
    (i) 5-percent owner. The employee was a 5-percent owner of the 
employer at any time during the year.
    (ii) Compensation amount. The employee received compensation is 
excess of $50,000 during the year.
    The determinations provided for in this paragraph (b)(2) may be made 
on the basis of the calendar year, the plan year, or any other twelve 
month period selected by the employer and applied on a reasonable and 
consistent basis.
    (e) Rules with respect to former employees--(1) In general. For 
specific provisions with respect to the treatment of former employees 
and of highly compensated former employees, refer to the rules with 
respect to which the section 414(q) definition of highly compensated 
employee is applicable.
    (2) Former employees excluded in determining top-paid group, top-100 
employees and includible officers. Former employees are not included in 
the top-paid group, the group of the top-100 employees, or the group of 
includible officers for purposes of applying section 414(q) to active 
employees. In addition, former employees are not counted as

[[Page 609]]

employees for purposes of determining the number of employees in the 
top-paid group.
    Q-5: What is a separation year for purposes of section 414(q)?
    A-5: (a) Separation year--(1) In general. The separation year 
generally is the determination year during which the employee separates 
from service with the employer. For purposes of this rule, an employee 
who performs no services for the employer during a determination year 
will be treated as having separated from service with the employer in 
the year in which such employee last performed services for the 
employer. Thus, for example, an employee who performs no services for 
the employer by reason of being on a leave of absence throughout the 
determination year is considered to have separated from service with the 
employer in the year in which such employee last performed services 
prior to beginning the leave of absence.
    (2) Deemed separation. An employee who performs services for the 
employer during a determination year may be deemed to have separated 
from service with the employer during such year pursuant to the rules in 
paragraph (a)(3) of this A-5. Such deemed separation year is relevant 
for purposes of determining whether such employee is a highly 
compensated former employee after such employee actually separates from 
service, not for purposes of identifying such employee as either an 
active or former employee. Because employees to whom the provisions of 
paragraph (a)(2) of this A-5 apply are still performing services for the 
employer during the determination year, they are treated as active 
employees. Thus, for example, an employee who has a deemed separation 
year in 1989, a year during which he was a highly compensated employee, 
who continues to work for the employer until he retires from employment 
in 1995, is an active employee of the employer until 1995 and is either 
highly compensated or not highly compensated for any determination year 
during such period based on the rules with respect to highly compensated 
active employees. For determination years after the year of such 
employee's retirement, such employee is a highly compensated former 
employee because such employee was a highly compensated active employee 
for the deemed separation year.
    (3) Deemed separation year. An employee will be deemed to have a 
separation year if, in a determination year prior to attainment of age 
55, the employee receives compensation in an amount less than 50% of the 
employee's average annual compensation for the three consecutive 
calendar years preceding such determination year during which the 
employee received the greatest amount of compensation from the employer 
(or the total period of the employee's service with the employer, if 
less).
    (4) Leave of absence. The deemed separation rules contained in 
paragraph (a)(2) and (3) of this A-5 apply without regard to whether the 
reduction in compensation occurs on account of a leave of absence.
    (b) Deemed resumption of employment. An employee who is treated as 
having a deemed separation year by reason of the provisions of paragraph 
(a) of this A-5 will not be treated as a highly compensated former 
employee (by reason of such deemed separation year) after such employee 
actually separates from service with the employer if, after such deemed 
separation year, and before the year of actual separation, such 
employee's services for and compensation from the employer for a 
determination year increase significantly so that such employee is 
treated as having a deemed resumption of employment. The determination 
of whether an employee who has incurred a deemed separation year has an 
increase in services and compensation sufficient to result in a deemed 
resumption of employment will be made on the basis of all the 
surrounding facts and circumstances pertaining to each individual case. 
At a minimum, there must be an increase in compensation from the 
employer to the extent that such compensation would not result in a 
deemed separation year under the tests in paragraph (a)(2) of this A-5 
using the same three-year period taken into account in such paragraph.
    (c) Examples. Paragraphs (a) and (b) of this A-5 are illustrated by 
the following examples based on calendar years. For purposes of these 
examples

[[Page 610]]

the threshold dollar amounts in A-5(a) of this Sec. 1.414(q)-1T have not 
been increased pursuant to A-5(b) of this Sec. 1.414(q)-1T.

    Example (1). Assume that in 1990 A is a highly compensated employee 
of X by reason of having earned more than $75,000 during the 1989 look-
back year. In 1987, 1988 and 1989, A's years of greatest compensation 
received from X, A received $76,000, $80,000 and $79,000 respectively. 
In February of 1990, A received $30,000 in compensation. Because A's 
compensation during the 1990 determination year is less than 50% of A's 
average annual compensation from X during A's high three prior 
determination years, A is deemed to have a separation year during the 
1990 determination year pursuant to the provisions of paragraph (a) of 
this A-5. Since A is a highly compensated employee for X in 1990, A's 
deemed separation year, A will be treated as a highly compensated former 
employee after A actually separates from service with the employer 
unless A experiences a deemed resumption of employment within the 
meaning of paragraph (b) of this A-5.
    Example (2).  Assume that in 1990 A is a highly compensated employee 
by reason of having been an officer (with annual compensation in excess 
of the section 415(c)(1)(A) dollar limitation) during the 1989 look-back 
year. A's compensation from X during 1990 is $37,000. A's average 
compensation from X for the three-year period ending with or within 
January, 1990, was $60,000. A's compensation during the 1990 
determination year is not less than 50% of the compensation earned 
during the test period. Therefore, A is not deemed to have a separation 
year under paragraph (a)(2)(i) of this A-5.
    Example (3). Assume that in 1990 C is 35 and a highly compensated 
employee of Z for the reasons given in Example (1) with the same 
compensation set forth in that example. During 1990, C leaves C's 40 
hour a week position as director of the actuarial division of Z and 
starts working as an actuary for the same division, producing actuarial 
reports approximately 15 to 20 hours a week, approximately half of these 
hours at home. C contemplates returning to full-time employment with Z 
when C's child enters school. During the 1990 determination year, C's 
compensation is less than 50% of C's compensation during her high three 
preceding determination years. Therefore, C has a deemed separation year 
during the 1990 determination year. In 1991 C commences working 32 hours 
a week for X at X's place of business and receives compensation in an 
amount equal to 80 percent of her average annual compensation during her 
high three prior determination years. The C's increased compensation, 
considered in conjunction with the reasons for the reduction in service, 
the nature and extent of the services performed before and after the 
reduction in services, and the lack of proximity of C's age to age 55 at 
the time of the reduction are sufficient to establish that C has a 
deemed resumption of employment within the meaning of paragraph (b) of 
this A-5. Therefore, when C separates from service with the employer, C 
will not be treated as a highly compensated former employee by reason of 
C's deemed separation year in 1990.

    Q-6: Who is the employer?
    A-6: (a) Aggregation of certain entities. The employer is the entity 
employing the employees and includes all other entities aggregated with 
such employing entity under the aggregation requirements of section 
414(b), (c), (m) and (o). Thus, the following entities must be taken 
into account as a single employer for purposes of determining the 
employees who are ``highly compensated employees'' within the meaning of 
section 414(q):
    (1) All corporations that are members of a controlled group of 
corporations (as defined in section 414(b)) that includes the employing 
entity.
    (2) All trades or businesses (whether or not incorporated) that are 
under common control (as defined in section 414(c)) which group includes 
the employing entity.
    (3) All organizations (whether or not incorporated) that are members 
of an affiliated service group (as defined in section 414(m)) that 
includes the employing entity.
    (4) Any other entities required to be aggregated with the employing 
entity pursuant to section 414(o) and the regulations thereunder.
    (b) Priority of aggregation provisions. The aggregation requirements 
of paragraph (a) of this A-6 and of A-7(b) of this section with respect 
to leased employees are applied before the application of any of the 
other provisions of section 414(q) and this section.
    (c) Line of business rules. The section 414(r) rules with respect to 
separate lines of business are not applicable in determining the group 
of highly compensated employees.
    Q-7: Who is an employee for purposes of section 414(q)?
    A-7: (a) General rule. Except as provided in paragraph (b) of this 
A-7, the term ``employee'' for purposes of section 414(q) refers to 
individuals who perform services for the employer and are either common-
law employees of

[[Page 611]]

the employer or self-employed individuals who are treated as employees 
pursuant to section 401(c)(1). This rule with respect to the inclusion 
of certain self-employed individuals in the group of highly compensated 
employees is applicable whether or not such individuals are eligible to 
participate in the plan or benefit arrangement being tested.
    (b) Leased employees--(1) In general. The term ``employee'' includes 
a leased employee who is treated as an employee of the recipient 
pursuant to the provisions of section 414(n)(2) or 414(o)(2). Employees 
that an employer treats as leased employees under section 414(n), 
pursuant to the requirements of section 414(o), are considered to be 
leased employees for purposes of this rule.
    (2) Safe-harbor exception. For purposes of qualified retirement 
plans, if an employee who would be a leased employee within the meaning 
of section 414(n)(2) is covered in a safe-harbor plan described in 
section 414(n)(5) (a qualified money purchase pension plan maintained by 
the leasing organization), and not otherwise covered under a qualified 
retirement plan of the employer, then such employee is excluded from the 
term ``employee'' unless the employer elects to include such employee 
pursuant to the provisions of paragraph (4) of this paragraph (b).
    (3) Other employee benefit plans. The exception in paragraph (b)(2) 
of this A-7 is not applicable to the determination of the highly 
compensated employee group for purposes of the sections enumerated in 
section 414(n)(3)(C). Thus, for example, a leased employee covered by a 
safe-harbor plan is considered to be an employee in applying the 
nondiscrimination provisions of section 89 to statutory benefit plans. 
Consequently, an employer with leased employees covered in a safe-harbor 
plan may have 2 groups of highly compensated employees, one with respect 
to its retirement plans and another with respect to its statutory 
benefit plans.
    (4) Election with respect to leased employee exclusion. An employer 
may elect to include the employees excepted under the provisions of 
paragraph (b)(2) of this A-7 in determining the highly compensated group 
with respect to an employer's retirement plans. Thus, for example, by 
electing to forego the exception in paragraph (b)(2) of this A-7, an 
employer may achieve more uniform highly compensated employee groups for 
purposes of its retirement plans and welfare benefit plans. The election 
to include such employees must be made on a reasonable and consistent 
basis and must be provided for in the plan.
    Q-8: Who is a 5-percent owner of the employer?
    A-8: An employee is a 5-percent owner of the employer for a 
particular year if, at any time during such year, such employee is a 5-
percent owner as defined in section 416(i)(B)(i) and Sec. 1.416-1 A T-
17&18. Thus, if the employer is a corporation, a 5-percent owner is any 
employee who owns (or is considered as owning within the meaning of 
section 318) more than 5 percent of the value of the outstanding stock 
of the corporation or stock possessing more than 5 percent of the total 
combined voting power of all stock of the corporation. If the employer 
is not a corporation, a 5-percent owner is any employee who owns more 
than 5 percent of the capital or profits interest in the employer. The 
rules of subsections (b), (c), and (m) of section 414 do not apply for 
purposes of determining who is a 5-percent owner. Thus, for example, an 
individual who is a 5-percent owner of a subsidiary corporation that is 
part of a controlled group of corporations within the meaning of section 
414(b) is treated as a 5-percent owner for purposes of these rules.
    Q-9: How is the ``top-paid group'' determined?
    A-9: (a) General rule. An employee is in the top-paid group of 
employees for a particular year if such employee is in the group 
consisting of the top 20 percent of the employer's employees when ranked 
on the basis of compensation received from the employer during such 
year. The identification of the particular employees who are in the top-
paid group for a year involves a two-step procedure:
    (1) The determination of the number of employees that corresponds to 
20 percent of the employer's employees, and

[[Page 612]]

    (2) The identification of the particular employees who are among the 
number of employees who receive the most compensation during this year.

Employees who perform no services for the employer during a year are not 
included in making either of these determinations for such year.
    (b) Number of employees in the top-paid group--(1) Exclusions. 
[Reserved] See Sec. 1.414(q)-1, Q&A-9(b)(1) for further information.
    (i) Age and service exclusion. The following employees are excluded 
on the basis of age or service absent an election by the employer 
pursuant to the rules in paragraph (b)(2) of this A-9:
    (A) Employees who have not completed 6 months of service by the end 
of such year. For purposes of this paragraph (A), an employee's service 
in the immediately preceding year is added to service in the current 
year in determining whether the exclusion is applicable with respect to 
a particular employee in the current year. For example, given a plan 
with a calendar determination year, if employee A commences work August 
1, 1989, and terminates employment May 31, 1990, A may be excluded under 
this paragraph (b)(1)(i)(A) in 1989 because A completed only 5 months of 
service by December 31, 1989. However, A cannot be excluded pursuant to 
this rule in 1990 because A has completed 10 months of service, for 
purposes of this rule, by the end of 1990.
    (B) Employees who normally work less than 17\1/2\ hours per week as 
defined in paragraph (d) of this A-9 for such year.
    (C) Employees who normally work during less than 6 months during any 
year as defined in paragraph (e) of this A-9 for such year.
    (D) Employees who have not had their 21st birthdays by the end of 
such year.
    (ii) Nonresident alien exclusion. Employees who are nonresident 
aliens and who receive no earned income (within the meaning of section 
911(d)(2)) from the employer that constitutes income from sources within 
the United States (within the meaning of section 861(a)(3)) are 
excluded.
    (iii) Collective bargaining exclusion--(A) In general. Except as 
provided in paragraph (B) of this paragraph (b)(1)(iii), employees who 
are included in a unit of employees covered by an agreement that the 
Secretary of Labor finds to be a collective bargaining agreement between 
employee representatives and the employer, which agreement satisfies 
section 7701(a)(46) and Sec. 301.7701-17T (Temporary), are included in 
determining the number of employees in the top-paid group.
    (B) Percentage exclusion provision. If 90 percent or more of the 
employees of the employer are covered under collective bargaining 
agreements that the Secretary of Labor finds to be collective bargaining 
agreements between employee representatives and the employer, which 
agreements satisfy section 7701(a)(46) and Sec. 301.7701-17T 
(Temporary), and the plan being tested covers only employees who are not 
covered under such agreements, then the employees who are covered under 
such collective bargaining agreements are not counted in determining the 
number of noncollective bargaining employees who will be included in the 
top-paid group for purposes of testing such plan. In addition, such 
employees are not included in the top-paid group for such purposes. 
Thus, if the conditions of this paragraph (b)(1)(iii)(B) are satisfied, 
a separate calculation is required to determine the number and identity 
of noncollective bargaining employees who will be highly compensated 
employees by reason of receiving over $50,000 and being in the top-paid 
group of employees for purposes of testing those plans that cover only 
noncollective bargaining employees.
    (2) Alternative exclusion provisions--(i) Age and service exclusion 
election. An employer may elect, on a consistent and uniform basis, to 
modify the permissible exclusions set forth in paragraph (b)(1)(i) (A), 
(B), (C), and (D) of this A-9 by substituting any shorter period of 
service or lower age than that specified in such paragraph. These 
exclusions may be modified to substitute a zero service or age 
requirement.
    (ii) Election not to apply percentage exclusion provision. An 
employer may elect not to exclude employees under the rules in paragraph 
(b)(1)(iii)(B) of this A-9.

[[Page 613]]

    (iii) Method of election. [Reserved] See Sec. 1.414(q)-1, Q&A-
9(b)(2)(iii) for further information.
    (c) Identification of top-paid group members. With the exception of 
the paragraph (b)(1)(iii) of this A-9 exclusion for certain employees 
covered by collective bargaining agreements, the exclusions in paragraph 
(b)(1) of this A-9 are not applicable for purposes of identifying the 
particular employees in the top-paid group. Thus, for example, even if 
an employee who normally works for less than 17\1/2\ hours is excluded 
in determining the number of employees in the top-paid group such 
employee may be a member of the top-paid group. Similarly, if during a 
determination year, employee A receives over $75,000 and is one of the 
top-100 employees ranked by compensation, then employee A is a highly 
compensated active employee for such determination year. This is true 
even though employee A has worked less than six months and thus may be 
excluded in determining the number of persons in the top-paid group for 
the determination year.
    (d) Example. Paragraphs (b) and (c) of this A-9 are illustrated by 
the following example:

    Example. Employer X has 200 active employees during the 1989 
determination year, 100 of whom normally work less than 17\1/2\ hours 
per week during such year and 80 of whom normally work less than 15 
hours per week during such year. X elects to exclude all employees who 
normally work less than 15 hours per week in determining the number of 
employees in the top-paid group. Thus, X excludes 80 employees in 
determining the number of employees in the top-paid group. X's top-paid 
group for the 1989 determination year consists of 20% of 120 or 24 
employees. All 200 of X's employees must then be ranked in order by 
compensation received during the year, and the 24 employees X paid the 
greatest amount of compensation during the year are top-paid employees 
with respect to X for the 1989 determination year.

    (e) 17\1/2\ hour rule--(1) In general. The determination of whether 
an employee normally works less than 17\1/2\ hours per week is made 
independently for each year based on the rules in paragraph (e)(2) and 
(3) of this A-9. In making this determination, weeks during which the 
employee did not work for the employer are not considered. Thus, for 
example, if an employee normally works twenty hours a week for twenty-
five weeks during the fall and winter school quarters, 10 hours a week 
for the 12 week spring quarter, and does not work for the employer 
during the three-month summer quarter, such employee is treated as 
normally working more than 17\1/2\ hours per week under the rule of this 
paragraph (e).
    (2) Deemed above 17\1/2\. An employee who works 17\1/2\ hours a week 
or more, for more than fifty percent of the total weeks worked by such 
employee during the year, is deemed to normally work more than 17\1/2\ 
hours a week for purposes of this rule.
    (3) Deemed below 17\1/2\. An employee who works less than 17\1/2\ 
hours a week for fifty percent or more of the total weeks worked by such 
employee during the year is deemed to normally work less than 17\1/2\ 
hours a week for purposes of this rule.
    (4) Application. The determination provided for in paragraph (e)(1), 
(2), and (3) of this A-9 may be made separately with respect to each 
employee, or on the basis of groups of employees who fall within 
particular job categories as established by the employer on a reasonable 
basis. For example, under the rule of this paragraph (e)(4) an employer 
may exclude all office cleaning personnel if, for the year in question, 
the employees performing this function normally work less than 17\1/2\ 
hours a week. This is true even though one or more employees within this 
group normally work in excess of 17\1/2\ hours. The election to make 
this determination on the basis of individuals or groups is operational 
and does not require a plan provision.
    (5) Application based on groups. (i) Groups of employees who perform 
the same job are not required to be considered as one category for 
purposes of the rule in paragraph (e)(4) of this A-9. Thus, for example, 
an employer supermarket may determine its highly compensated employees 
by excluding part-time grocery checkers if such personnel normally work 
less than 17\1/2\ hours a week while continuing to include full-time 
personnel performing this function. In general, 80 percent of the 
positions within a particular job category must be filled by employees 
who

[[Page 614]]

normally work less than 17\1/2\ hours a week before any employees may be 
excluded under this rule on the basis of their membership in that job 
category.
    (ii) Alternatively, an employer may exclude employees who are 
members of a particular job category if the median number of hours of 
service credited to employees in that category during a determination or 
look-back year is 500 or less.
    (f) 6-month rule--(1) In general. The determination of whether 
employees normally work during not more than 6 months in any year is 
made on the basis of the facts and circumstances of the particular 
employer as evidenced by the employer's customary experience in the 
years preceding the determination year. An employee who works on one day 
during a month is deemed to have worked during that month.
    (2) Application of prior year experience. In making the 
determination under this paragraph (f), the experience for years 
immediately preceding the determination year will generally be weighed 
more heavily than that of earlier years. However, this emphasis on more 
recent years is not appropriate if the data for a particular year 
reflects unusual circumstances. For example, if fishermen working for 
employer X worked 9 months in 1987 and 1988, 8 months in 1989, and then, 
because of abnormal ice conditions, worked only 5 months in 1990, such 
fishermen could not be excluded under this rule in 1990. Furthermore, 
the data with respect to 1990 would not be weighed more heavily in 
making a determination with respect to subsequent years.
    (3) Individual or group basis. This determination may be made 
separately with respect to each employee or on the basis of groups of 
employees who fall within particular job categories in the manner set 
forth in paragraph (e)(4) of this A-8.
    Q-10. For purposes of determining the group of highly compensated 
employees, which employees are officers and which officers must be 
included in the highly compensated group?
    A-10: (a) In general. Subject to the limitations set forth in 
paragraph (b) of this A-10 and the top-100 employee rule set forth in A-
2, an employee is an includible officer for purposes of this section and 
is a member of the group of highly compensated employees if such 
employee is an officer of the employer (within the meaning of section 
416(i) and Sec. 1.416-1 A-T 13 & A-T 15) at any time during the 
determination year or look-back year and receives compensation during 
such year that is greater than 150 percent of the dollar limitation in 
effect under section 415(c)(1)(A) for the calendar year in which the 
determination or look-back year begins. In addition, an officer who does 
not meet the 415(c)(1)(A) dollar limitation requirement may be an 
includible officer based on the minimum inclusion rules set forth in 
paragraph (c) of this A-10.
    (b) Maximum limitation--(1) In general. Nor more than 50 employees 
(or, if lesser, the greater of 3 employees or 10 percent of the 
employees without regard to any exclusions) shall be treated as officers 
for purposes of this provision in determining the group of highly 
compensated employees for any determination year or look-back year.
    (2) Total number of employees. The total number of employees for 
purposes of the limitation in this paragraph (b) is the number of 
employees the employer has during the particular determination year or 
look-back year. For purposes of this A-10, employees include only those 
individuals who perform services for the employer during the 
determination or look-back year. The exclusions applicable for purposes 
of determining the number of employees in the top-paid group are not 
applicable for purposes of the limitations in this paragraph (b).
    (3) Inclusion ranking. If the number of the employer's officers who 
satisfy paragraph (a) of this A-10 during either the determination year 
or the look-back year exceeds the limitation under this paragraph (b), 
then the officers who will be considered as includible officers for 
purposes of this rule are those who receive the greatest compensation 
from the employer during such determination or look-back year. The 
definition of compensation in A-13 is to be used for this purpose.
    (c) Minimum inclusion rule. This paragraph (c) is applicable when no 
officer of the employer satisfies the compensation requirements of 
paragraph (a) of

[[Page 615]]

this A-10 during either a determination year or look-back year. In such 
case, the highest paid officer of the employer for such year is treated 
as a highly compensated employee by reason of being an officer, without 
regard to the amount of compensation paid to such officer in relation to 
the section 415(c)(1)(A) dollar amount for the year. This is true 
whether or not such employee is also a highly compensated employee on 
any other basis. Thus, for example, if no officer of employer X meets 
the compensation requirements of paragraph (a) of this A-10 during the 
1989 look-back year, and employee A is both the highest paid officer 
during such year and a 5-percent owner, employee A is treated as an 
includible officer satisfying the minimum inclusion rules of this 
paragraph.
    (d) Separate application. The maximum and minimum officer inclusion 
rules of paragraphs (b) and (c) of this A-10 apply separately with 
respect to the determination year calculation and the look-back year 
calculation. Thus, for example, if no officer of employer X receives 
compensation above the threshold amount in paragraph (a) of this A-10 
during either the determination year or look-back year, application of 
the minimum inclusion rule would result in the officer of employer X who 
received the greatest compensation during the look-back year being 
treated as a highly compensated employee and, in addition, the officer 
of employer X who receives the most compensation during the 
determination year would be included in the highly compensated group if 
such officer is also in the top-100 employees of employer X for such 
year. Thus, two officers may be treated as highly compensated active 
employees for a determination year by reason of the provisions of the 
minimum inclusion rule.
    Q-11: To what extent must family members who are employed by the 
same employer be aggregated for purposes of section 414(q)?
    A-11: (a) Family aggregation--(1) In general. Aggregation is 
required with respect to an employee who is, during a particular 
determination year or look-back year, a family member (as defined in A-
12) of either (i) a 5-percent owner who is an active or former employee 
or (ii) a highly compensated employee who is one of the ten most highly 
compensated employees ranked on the basis of compensation paid by the 
employer during such year.
    (2) Aggregation of contributions or benefits. As prescribed in 
regulations under the provisions to which section 414(q) is applicable, 
a family member and a 5-percent owner or top-10 highly compensated 
employee aggregated under this rule are generally treated as a single 
employee receiving an amount of compensation and a plan contribution or 
benefit that is based on the compensation, contributions, and benefits 
of such family member and 5-percent owner or top-10 highly compensated 
employee.
    (b) Exclusion status irrelevant. Family members are subject to this 
aggregation rule whether or not they fall within the categories of 
employees that may be excluded for purposes of determining the number of 
employees in the top-paid group and whether or not they are highly 
compensated employees when considered separately.
    (c) Order of determination--(1) Determination of highly compensated 
employees. The determination of which employees are highly compensated 
employees and which highly compensated employees are among the ten most 
highly compensated employees in making the look-back year calculation or 
the determination year calculation for a determination year will be made 
prior to the application of the rules in paragraph (a) of this A-11.
    (2) Determination of top-paid group and top-100 employees. The 
determination of the number and identity of employees in the top-paid 
group under the look-back year calculation or the determination year 
calculation for a determination year and the identity of individuals in 
the top-100 employees under the determination year calculation for a 
determination year is made prior to application of the rules in 
paragraph (a) of this A-11.
    (d) Determination period. The rules under paragraph (a) of this A-11 
apply separately to the determination year and the look-back year. Thus, 
assuming there are no 5-percent owners, if employees A, B, C, D, E, F, 
G, H, I and J are the top 10 highly compensated

[[Page 616]]

employees in the 1988 look-back year, and employees F, G, H, I, J, K, L, 
M, N and O are the top 10 highly compensated employees in the 1989 
determination year, then family aggregation would be required with 
respect to all fifteen of such employees (i.e. employees A, B, C, D, E, 
F, G, H, I, J, K, L, M, N, and O).
    Q-12: Which individuals are family members for purposes of the 
aggregation rules in section 414(a)(6)(A) and A-11?
    A-12: (a) Definition of family member. Individuals who are family 
members for purposes of these provisions include, with respect to any 
employee or former employee, such employee's or former employee's spouse 
and lineal ascendants or descendants and the spouses of such lineal 
ascendants and descendants. In determining whether an individual is a 
family member with respect to an employee or former employee, legal 
adoptions shall be taken into account.
    (b) Test period. If an individual is a family member with respect to 
an employee or former employee on any day during the year, such 
individual is treated as a family member for the entire year. Thus, for 
example, if an individual is a family member with respect to an employee 
on the first day of a year, such individual continues to be a family 
member with respect to such employee throughout the year even though 
their relationship changes as a result of death or divorce.
    Q-13: How is ``compensation'' determined for purposes of determining 
the group of ``highly compensated employees.''
    A-13: (a) In general. For purposes of section 414(q), the term 
``compensation'' means compensation within the meaning of section 
415(c)(3) without regard to sections 125, 402(a)(8), and 402(h)(1)(B) 
and, in the case of employer contributions made pursuant to a salary 
reduction agreement, without regard to section 403(b). Thus, 
compensation includes elective or salary reduction contributions to a 
cafeteria plan, cash or deferred arrangement or tax-sheltered annuity.
    (b) Determination period. For purposes of determining the group of 
highly compensated employees, compensation must be calculated on the 
basis of the applicable period for the determination year and look-back 
year respectively.
    (c) Compensation taken into account. Only compensation received by 
an employee during the determination year or during the look-back year 
is considered in determining whether such employee is a highly 
compensated active employee under either the look-back year calculation 
or determination year calculation for such determination year. Thus, 
compensation is not annualized for purposes of determining an employee' 
compensation in the determination year or the look-back year in applying 
the rules of paragraph (a) of this A-13.
    Q-14: What periods must be used for determining who is a highly 
compensated employee for a determination year?
    A-14: (a) Determination year and look-back year--(1) In general. For 
purposes of determining the group of highly compensated employees for a 
determination year, the determination year calculation is made on the 
basis of the applicable year of the plan or other entity for which a 
determination is being made and the look-back year calculation is made 
on the basis of the twelve month period immediately preceding such year. 
Thus, in testing plans X and Y of an employer, if plan X has a calendar 
year plan year and plan Y has a July 1 to June 30 plan year, the 
determination year calculation and look-back year calculation for plan X 
must be made on the basis of the calendar year. Similarly, the 
determination year calculation and look-back year calculation for plan Y 
must be made on the basis of the July 1 to June 30 year.
    (2) Applicable year. For purposes of this A-14, the applicable year 
is the plan year of the qualified plan or other employee benefit 
arrangement to which the definition of highly compensated employees is 
applicable as defined in the written plan document or otherwise 
identified in regulations pursuant to sections to which the definition 
of highly compensated employees is applicable. To the extent that the 
definition of highly compensated employees is applicable to entities of 
other arrangements that do not have an otherwise identified plan year, 
then

[[Page 617]]

either the calendar year of the employer's fiscal year may be treated as 
the plan year.
    (3) Look-back year. The look-back year is never less than a twelve 
month period.
    (b) Calendar year calculation election--(1) In general. An employer 
may elect to make the look-back year calculation for a determination 
year on the basis of the calendar year ending with or within the 
applicable determination year (or, in the case of a determination year 
that is shorter than twelve months, the calendar year ending with or 
within the twelve-month period ending with the end of the applicable 
determination year). In such case, the employer must make the 
determination year calculation for the determination year on the basis 
of the period (if any) by which the applicable determination year 
extends beyond such calendar year (i.e., the lag period). If the 
applicable year for which the determination is being made is the 
calendar year, the employer still may elect to make the calendar year 
calculation election under this A-14(b). In such case, the look-back 
year calculation is made on the basis of the calendar year determination 
year and, because there is no lag period, a separate determination year 
calculation under A-3(a)(2) of this Sec. 1.414(q)-1 is not required.
    (2) Lag period calculation. In making the determination year 
calculation under A-3(a)(2) of this Sec. 1.414(q)-1 on the basis of the 
lag period, the dollar amounts applicable under A-3(a)(1) (B) and (C) of 
this Sec. 1.414(q)-1 are to be adjusted by multiplying such dollar 
amounts by a fraction, the numerator of which is the number of calendar 
months that are included in the lag period and the denominator of which 
is twelve.
    (3) Determination of active employees. An employee will be 
considered an active employee for purposes of a determination year for 
which the calendar year calculation election is in effect so long as 
such employee performs services for the employer during the applicable 
year for which the determination is being made. This is the case even if 
such employee does not perform services for the employer during the lag-
period for such determination year.
    (4) Election requirement. If the employer elects to make the 
calendar year calculation election with respect to one plan, entity, or 
arrangement, such election must apply with respect to all plans, 
entities, and arrangements of the employer. In addition, such election 
must be provided for in the plan.
    (c) Change in applicable years. Where there is a change in the 
applicable year for which a determination is being made with respect to 
a plan entity, or other arrangement that is not subject to the calendar 
year calculation election, the look-back year calculation for the short 
applicable year is to be made on the basis of the twelve month period 
preceding the short applicable year (i.e., generally, the old applicable 
year) and the determination year calculation for the short applicable 
year is to be made on the basis of the short applicable year. In 
addition, the dollar amounts under A-3(a)(1) (B) and (C) are to be 
adjusted for such determination year calculation as if the short 
applicable year were a lag period under paragraph (b)(2) of this A-14.
    (d) Example. The following examples illustrates the rules of this A-
14:

    Example 1. Employer X has a single plan (Plan A) with an April 1 to 
March 31 plan year. Employer X makes no election to use the calendar 
year for the determination period. Therefore, in determining the group 
of highly compensated employees for the April 1, 1989 to March 31, 1990 
plan year, the determination year is the plan year ending March 31, 1990 
and the look-back year is the plan year ending March 31, 1989.
    Example 2. Assume the same facts given above. With respect to the 
plan year beginning in 1990, employer X elects to use the calendar year 
for the determination period. Therefore, in determining the group of 
highly compensated employees for the April 1, 1990 to March 31, 1991 
plan year, the lag-period determination year is the period from January 
1, 1991, through March 31, 1991, and the applicable look-back year is 
the 1990 calendar year.
    Example 3. Employer Y has a single plan (Plan B) with a calendar 
plan year. With respect to the plan year beginning in 1990, employer Y 
elects to make the look-back year calculation for the 1990 determination 
year on the basis of the calendar year ending with or within the 1990 
determination year. Because employer Y's determination year is the 1990 
calendar year there is no lag period

[[Page 618]]

and employer Y determines the group of highly compensated employees for 
purposes of the 1990 calendar plan year on the basis of such plan year 
alone.

    Q-15: Is there any transition rule in determining the group of 
highly compensated employees for 1987 and 1988?
    A-15: (a) In general. Solely for purposes of section 401(k)(3) and 
(m)(2) and solely for twelve-month plan years beginning in 1987 and 
1988, an eligible employer may elect to define the group of highly 
compensated employees as the group consisting of 5-percent owners of the 
employer at any time during the plan year and employees who receive 
compensation in excess of $50,000 during the plan year. This rule would 
apply in lieu of the look-back year calculation and determination year 
calculation otherwise applicable under A-3(a) of this Sec. 1.44(q)-1. In 
addition, an eligible employer may elect to make the determinations 
permitted under this transition rule on the basis of the calendar year 
ending in the plan year and the period by which such plan year extends 
beyond such calendar year, in accordance with the rules of A-14(b), in 
lieu of making the determinations under this transition rule on the 
basis of the plan year for which the determinations are being made.
    (b) Eligible employers. An employer is an eligible employer under 
this A-15 if such employer satisfies both of the following requirements:
    (1) The employer does not maintain any top-heavy plan within the 
meaning of section 416 at any time during 1987 and 1988; and
    (2) Under each plan of the employer to which section 401(k)(3) or 
401(m)(2) is applicable, the group of eligible employees that comprises 
the highest 25% of eligible employees ranked on the basis of 
compensation includes at least one employee whose compensation is 
$50,000 or below. This requirement must be met separately with respect 
to each such plan of the employer.
    (c) Uniformity requirement. An eligible employer may not make the 
election under paragraph (a) of this A-15 unless the election applies to 
all of the plans maintained by the employer to which section 401(k)(3) 
or 401(m)(2) applies.
    (d) Election requirements. This election is operational and does not 
require a plan provision.

[T.D. 8173, 53 FR 4967, Feb. 19, 1988, as amended at T.D. 8334, 56 FR 
3977, Feb. 1, 1991; T.D. 8548, 59 FR 32916, June 27, 1994]



Sec. 1.414(r)-0  Table of contents.

    (a) In general. Sections 1.414(r)-1 through 1.414(r)-11 provide 
rules for determining whether an employer is treated as operating 
qualified separate lines of business under section 414(r) of the 
Internal Revenue Code of 1986 as added to the Code by section 1115(a) of 
the Tax Reform Act of 1986 (Pub. L. No. 99-514), as well as rules for 
applying the requirements of sections 410(b), 401(a)(26), and 129(d)(8) 
separately with respect to the employees of each qualified separate line 
of business of an employer. Paragraph (b) of this section contains a 
listing of the headings of Secs. 1.414(r)-1 through 1.414(r)-11. 
Paragraph (c) of this section provides a flowchart showing how the major 
provisions of Secs. 1.414(r)-1 through 1.414(r)-6 are applied.
    (b) Table of contents. The following is a listing of the headings of 
Secs. 1.414(r)-1 through 1.414(r)-11.

Sec. 1.414(r)-1  Requirements applicable to qualified separate lines of 
                                business.

(a) In general.
(b) Conditions under which an employer is treated as operating qualified 
          separate lines of business.
    (1) In general.
    (2) Qualified separate line of business.
    (i) In general.
    (ii) Line of business.
    (iii) Separate line of business.
    (iv) Qualified separate line of business.
    (A) In general.
    (B) Fifty-employee requirement.
    (C) Notice requirement.
    (D) Requirement of administrative scrutiny.
    (3) Determining the employees of a qualified separate line of 
business.
(c) Separate application of certain Code requirements to employees of a 
          qualified separate line of business.
    (1) In general.
    (2) Separate application of section 410(b).
    (i) General rule.
    (ii) Special rule for employer-wide plans.
    (3) Separate application of section 401(a)(26).
    (i) General rule.
    (ii) Special rule for employer-wide plans.

[[Page 619]]

    (4) Separate application of section 129(d)(8) [Reserved]
    (5) Separate application of other Code requirements.
(d) Application of requirements.
    (1) In general.
    (2) Interpretation.
    (3) Separate operating units.
    (4) Certain mergers and acquisitions.
    (5) Governmental and tax-exempt employers.
    (i) General rule.
    (ii) Additional rules [Reserved].
    (6) Testing year basis of application.
    (i) Section 414(r).
    (ii) Sections 410(b), 401(a)(26), and 129(d)(8).
    (7) Averaging rules.
    (8) Definitions.
    (9) Effective dates.
    (i) General rule.
    (ii) Reasonable compliance.
    (A) In general.
    (B) Determination of reasonable compliance.
    (C) Effect on other plans.
(e) Additional rules.

                   Sec. 1.414(r)-2  Line of business.

(a) General rule.
(b) Employer determination of its lines of business.
    (1) In general.
    (2) Property and services provided to customers.
    (i) In general.
    (ii) Timing of provision of property or services.
    (3) Employer designation.
    (i) In general.
    (ii) Ability to combine unrelated types of property or services in a 
single line of business.
    (iii) Ability to separate related types of property or services into 
two or more lines of business.
    (iv) Affiliated service groups.
(c) Examples.
    (1) In general.
    (2) Examples illustrating employer designation.
    (3) Examples illustrating property and services provided to 
customers.

               Sec. 1.414(r)-3  Separate line of business.

(a) General rule.
(b) Separate organization and operation.
    (1) In general.
    (2) Separate organizational unit.
    (3) Separate financial accountability.
    (4) Separate employee workforce.
    (5) Separate management.
(c) Supplementary rules.
    (1) In general.
    (2) Determination of separate employee workforce.
    (3) Determination of separate management.
    (4) Employees taken into account.
    (5) Services taken into account.
    (i) Provision of services to a separate line of business.
    (ii) Period for which services are provided.
    (iii) Optional rule for employees who change status.
    (A) In general.
    (B) Change in employee's status.
    (6) Examples of the separate employee workforce requirement.
    (7) Examples of the separate management requirement.
(d) Optional rule for vertically integrated lines of business.
    (1) In general.
    (2) Requirements.
    (3) Optional rule.
    (i) Treatment of employees.
    (ii) Purposes for which optional rule applies.
    (4) Examples.

Sec. 1.414(r)-4  Qualified separate line of business--fifty-employee and 
                          notice requirements.

(a) In general.
(b) Fifty-employee requirement.
(c) Notice requirement.
    (1) General rule.
    (2) Effect of notice.

  Sec. 1.414(r)-5  Qualified separate line of business--administrative 
                   scrutiny requirement--safe harbors.

(a) In general.
(b) Statutory safe harbor.
    (1) General rule.
    (2) Highly compensated employee percentage ratio.
    (3) Employees taken into account.
    (4) Ten-percent exception.
    (5) Determination based on preceding testing year.
    (6) Examples.
(c) Safe harbor for separate lines of business in different industries.
    (1) In general.
    (2) Optional rule for foreign operations.
    (3) Establishment of industry categories.
    (4) Examples.
(d) Safe harbor for separate lines of business that are acquired through 
          certain mergers and acquisitions.
    (1) General rule.
    (2) Employees taken into account.
    (3) Transition period.
    (4) Examples.
(e) Safe harbor for separate lines of business reported as industry 
          segments.
    (1) In general.
    (2) Reported as an industry segment in conformity with Form 10-K or 
Form 20-F.
    (3) Timely filing of Form 10-K or 20-F.
    (4) Examples.

[[Page 620]]

(f) Safe harbor for separate lines of business that provide same average 
          benefits as other separate lines of business.
    (1) General rule.
    (2) Separate lines of business benefiting disproportionate number of 
nonhighly compensated employees.
    (i) Applicability of safe harbor.
    (ii) Requirement.
    (3) Separate lines of business benefiting disproportionate number of 
highly compensated employees.
    (i) Applicability of safe harbor.
    (ii) Requirement.
    (4) Employees taken into account.
    (5) Example.
(g) Safe harbor for separate lines of business that provide minimum or 
          maximum benefits.
    (1) In general.
    (2) Minimum benefit required.
    (i) Applicability.
    (ii) Requirement.
    (iii) Defined benefit minimum.
    (A) In general.
    (B) Normal form and equivalent benefits.
    (C) Compensation definition.
    (D) Average compensation requirement.
    (E) Special rules.
    (iv) Defined contribution minimum.
    (A) In general.
    (B) Modified allocation definition for averaging.
    (3) Maximum benefit permitted.
    (i) Applicability.
    (ii) Requirement.
    (iii) Defined benefit maximum.
    (A) In general.
    (B) Determination of defined benefit maximum.
    (C) Adjustment for different compensation definitions.
    (D) Adjustment for certain subsidies.
    (iv) Defined contribution maximum.
    (4) Duplication of benefits or contributions.
    (i) Plans of the same type.
    (ii) Plans of different types.
    (iii) Special rule for floor-offset arrangements.
    (5) Certain contingency provisions ignored.
    (6) Employees taken into account.

  Sec. 1.414(r)-6  Qualified separate line of business--administrative 
            scrutiny requirement--individual determinations.

(a) In general.
(b) Authority to establish procedures.

    Sec. 1.414(r)-7  Determination of the employees of an employer's 
                  qualified separate lines of business.

(a) Introduction.
    (1) In general.
    (2) Purposes for which this section applies.
(b) Assignment procedure.
    (1) In general.
    (2) Assignment for the first testing day.
    (3) Assignment of new employees for subsequent testing days.
    (4) Special rule for employers using annual option under section 
410(b).
(c) Assignment and allocation of residual shared employees.
    (1) In general.
    (2) Dominant line of business method of allocation.
    (i) In general.
    (ii) Dominant line of business.
    (iii) Employee assignment percentage.
    (A) Determination of percentage.
    (B) Employees taken into account.
    (iv) Option to apply reduced percentage.
    (v) Examples.
    (3) Pro-rata method of allocation.
    (i) In general.
    (ii) Allocation procedure.
    (iii) Examples.
    (4) HCE percentage ratio method of allocation.
    (i) In general.
    (ii) Highly compensated employee percentage assignment ratio.
    (iii) Allocation procedure.
    (5) Small group method.
    (i) In general.
    (ii) Size of group.
    (iii) Composition of qualified separate line of business.
    (iv) Reasonable allocation.

        Sec. 1.414(r)-8  Separate application of section 410(b).

(a) General rule.
(b) Rules of separate application.
    (1) In general.
    (2) Satisfaction of section 410(b)(5)(B) on an employer-wide basis.
    (i) General rule.
    (ii) Application of facts and circumstances requirements under 
nondiscriminatory classification test.
    (iii) Modification of unsafe harbor percentage for plans satisfying 
ratio percentage test at 90 percent level.
    (A) General Rule.
    (B) Facts and circumstances alternative.
    (3) Satisfaction of section 410(b) on a qualified-separate-line-of-
business basis.
    (4) Examples.
(c) Coordination of section 401(a)(4) with section 410(b).
    (1) General rule.
    (2) Examples.
(d) Supplementary rules.
    (1) In general.
    (2) Definition of plan.
    (3) Employees of a qualified separate line of business.
    (4) Consequences of failure.

[[Page 621]]

      Sec. 1.414(r)-9  Separate application of section 401(a)(26).

(a) General rule.
(b) Requirements applicable to a plan.
(c) Supplementary rules.
    (1) In general.
    (2) Definition of plan.
    (3) Employees of a qualified separate line of business.
    (4) Consequences of failure.

 Sec. 1.414(r)-10  Separate application of section 129(d)(8). [Reserved]

            Sec. 1.414(r)-11  Definitions and special rules.

(a) In general.
(b) Definitions.
    (1) In general.
    (2) Substantial-service employee.
    (3) Top-paid employee.
    (4) Residual shared employee.
    (5) Testing year.
    (6) Testing day.
    (7) First testing day.
    (8) Section 401(a)(26) testing day.
(c) Averaging rules.
    (1) In general.
    (2) Specified provisions.
    (3) Averaging of large fluctuations not permitted.
    (4) Consistency requirements.

    (c) Flowchart. The following is a flowchart showing how the major 
provisions of Secs. 1.414(r)-1 through 1.414(r)-6 are applied.

[[Page 622]]

[GRAPHIC] [TIFF OMITTED] TC05OC91.015


[T.D. 8376, 56 FR 63434, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32916, June 27, 1994]

[[Page 623]]



Sec. 1.414(r)-1  Requirements applicable to qualified separate lines of business.

    (a) In general. Section 414(r) prescribes the conditions under which 
an employer is treated as operating qualified separate lines of 
business. If an employer is treated as operating qualified separate 
lines of business under section 414(r), certain requirements under the 
Code may be applied separately with respect to the employees of each 
qualified separate line of business. These requirements are limited to 
the minimum coverage requirements of section 410(b) (including the 
nondiscrimination requirements of section 401(a)(4)), the minimum 
participation requirements of section 401(a)(26), and the 55-percent 
average benefits test of section 129(d)(8). This section provides the 
exclusive rules for determining whether an employer is treated as 
operating qualified separate lines of business under section 414(r), as 
well as rules for applying the requirements of sections 410(b), 
401(a)(26), and 129(d)(8) separately with respect to the employees of a 
qualified separate line of business.
    (b) Conditions under which an employer is treated as operating 
qualified separate lines of business--(1) In general. An employer is 
treated as operating qualified separate lines of business under section 
414(r) only if all property and services provided by the employer to its 
customers are provided exclusively by qualified separate lines of 
business. Thus, once an employer has determined its qualified separate 
lines of business under paragraph (b)(2) of this section, no portion of 
the employer may remain that is not included in a qualified separate 
line of business. In addition, once the employer has determined the 
employees of its qualified separate lines of business under paragraph 
(b)(3) of this section, every employee must be treated as an employee of 
a qualified separate line of business, and no employee may be treated as 
an employee of more than one qualified separate line of business.
    (2) Qualified separate line of business--(i) In general. A qualified 
separate line of business is a portion of the employer that is a line of 
business within the meaning of paragraph (b)(2)(ii) of this section, 
that is also a separate line of business within the meaning of paragraph 
(b)(2)(iii) of this section, and, finally, that satisfies the 
requirements of section 414(r)(2) in accordance with paragraph 
(b)(2)(iv) of this section.
    (ii) Line of business. A line of business is a portion of an 
employer that is identified by the property or services it provides to 
customers of the employer. For this purpose, the employer is permitted 
to determine the lines of business it operates by designating the 
property and services that each of its lines of business provides to 
customers of the employer. Rules for determining an employer's lines of 
business are provided in Sec. 1.414(r)-2.
    (iii) Separate line of business. A separate line of business is a 
line of business that is organized and operated separately from the 
remainder of the employer. The determination of whether a line of 
business is organized and operated separately from the remainder of the 
employer is made on the basis of objective criteria. These criteria 
generally require that the line of business be organized into one or 
more separate organizational units (e.g., corporations, partnerships, or 
divisions), that the line of business constitute one or more distinct 
profit centers within the employer, and that no more than a moderate 
overlap exist between the employee workforce and management employed by 
the line of business and those employed by the remainder of the 
employer. Rules for determining whether a line of business is organized 
and operated separately from the remainder of the employer and thus 
constitutes a separate line of business are provided in Sec. 1.414(r)-3. 
These rules include an optional rule for vertically integrated lines of 
business.
    (iv) Qualified separate line of business--(A) In general. A 
qualified separate line of business must satisfy the three statutory 
requirements in section 414(r)(2). A separate line of business that 
satisfies these three statutory requirements in accordance with 
paragraphs (b)(2)(iv)(B) through (b)(2)(iv)(D) of this section 
constitutes a qualified separate line of business.
    (B) Fifty-employee requirement. Under section 414(r)(2)(A), a 
separate line of

[[Page 624]]

business must have at least 50 employees. Rules for determining whether 
this requirement is satisfied are provided in Sec. 1.414(r)-4(b).
    (C) Notice requirement. Under section 414(r)(2)(B), the employer 
must notify the Secretary that it treats itself as operating qualified 
separate lines of business under section 414(r) for purposes of applying 
the requirements of section 410(b), 401(a)(26), or 129(d)(8) separately 
with respect to the employees of the separate line of business. Rules 
and procedures for complying with this requirement are provided in 
Sec. 1.414(r)-4(c).
    (D) Requirement of administrative scrutiny. Under section 
414(r)(2)(C), a separate line of business must pass administrative 
scrutiny. A separate line of business may satisfy this requirement in 
one of two ways. First, a separate line of business that satisfies any 
of the safe harbors in Sec. 1.414(r)-5 satisfies the requirement of 
administrative scrutiny. These safe harbors implement the statutory safe 
harbor of section 414(r)(3) as well as the guidelines prescribed under 
section 414(r)(2)(C). Second, a separate line of business that does not 
satisfy any of the safe harbors in Sec. 1.414(r)-5 nonetheless satisfies 
the requirement of administrative scrutiny if the employer requests and 
receives an individual determination from the Commissioner that the 
separate line of business satisfies the requirement of administrative 
scrutiny. Rules and procedures applicable to requesting and receiving an 
individual determination are provided in Sec. 1.414(r)-6. A separate 
line of business is permitted to satisfy the requirement of 
administrative scrutiny in any manner permitted under this paragraph 
(b)(2)(iv)(D), regardless of how any other separate line of business of 
the employer satisfies the requirement.
    (3) Determining the employees of a qualified separate line of 
business. In order to apply certain provisions under these regulations, 
it is necessary to determine the employees of a qualified separate line 
of business. For these purposes, the employees of a qualified separate 
line of business consist of all employees who are substantial-service 
employees with respect to the qualified separate line of business, and 
all other employees who are assigned to the qualified separate line of 
business. Rules for making these determinations are provided in 
Sec. 1.414(r)-7. These rules apply solely for the purposes specified in 
these regulations (see Sec. 1.414(r)-7(a)(2) for a comprehensive listing 
of these purposes). These rules do not apply for any other purpose 
(e.g., the determination under Sec. 1.414(r)-3 of whether a line of 
business is organized and operated separately from the remainder of the 
employer).
    (c) Separate application of certain Code requirements to employees 
of a qualified separate line of business--(1) In general. If an employer 
is treated as operating qualified separate lines of business under 
section 414(r) in accordance with paragraph (b) of this section, the 
requirements of sections 410(b), 401(a)(26), and 129(d)(8) may be 
applied separately with respect to the employees of each qualified 
separate line of business. Paragraphs (c)(2) through (c)(4) of this 
section provide for the separate application of these requirements. In 
general, the requirements of a Code section are applied separately with 
respect to the employees of a qualified separate line of business by 
treating those employees as if they were the only employees of the 
employer. Paragraph (c)(5) of this section prescribes the limited 
conditions under which other Code requirements may be applied separately 
with respect to the employees of a qualified separate line of business.
    (2) Separate application of section 410(b)--(i) General rule. Except 
as provided in paragraph (c)(2)(ii) of this section, an employer is 
permitted to apply the requirements of section 410(b) separately with 
respect to the employees of each qualified separate line of business 
operated by the employer only if the employer does so with respect to 
all its plans, all its employees, and all its qualified separate lines 
of business. For this purpose, the requirements of section 410(b) 
encompass the requirements of section 401(a)(4) (including, but not 
limited to, the permitted disparity rules of section 401(l), the actual 
deferral percentage test of section 401(k)(3) and the actual 
contribution percentage test of section 401(m)(2)). Rules for applying 
section 410(b) separately with

[[Page 625]]

respect to the employees of a qualified separate line of business are 
provided in Sec. 1.414(r)-8. An employer may apply the rules of section 
414(r) for purposes of section 410(b) even if it does not apply the 
rules of section 414(r) for purposes of section 401(a)(26).
    (ii) Special rule for employer-wide plans. Notwithstanding paragraph 
(c)(2)(i) of this section, an employer that is treated as operating 
qualified separate lines of business for purposes of section 410(b) in 
accordance with paragraph (b) of this section may apply the requirements 
of section 410(b) on an employer-wide rather than a qualified-separate-
line-of-business basis with respect to any plan (within the meaning of 
Sec. 1.414(r)-8(d)(2), but without regard to the mandatory 
disaggregation rule of Sec. 1.410(b)-7(c)(4) for portions of a plan that 
benefit employees of different qualified separate lines of business) 
that benefits a group of employees that satisfies the percentage test of 
section 410(b)(1)(A) (i.e., benefits at least 70 percent of the 
employer's nonexcludable nonhighly compensated employees). If section 
401(a)(4) requires that a group of employees under the plan described in 
the preceding sentence satisfy section 410(b) for purposes of satisfying 
section 401(a)(4), the percentage test of section 410(b)(1)(A) must be 
satisfied by each such group of employees. See Sec. 1.414(r)-8(c). The 
rules of this paragraph (c)(2)(ii) are illustrated by the following 
example.

    Example. Employer A maintains a single profit-sharing plan, Plan W, 
and three pension plans, Plans X, Y and Z, each benefiting employees of 
a different one of Employer A's three qualified separate lines of 
business. Contributions to the profit-sharing plan are made pursuant to 
a cash or deferred arrangement in which all employees of Employer A are 
eligible to participate. Assume that, as a result, Plan W satisfies the 
requirements to be tested under this paragraph (c)(2)(ii). None of the 
pension plans benefits more than 70 percent of the nonexcludable 
nonhighly compensated employees of Employer A. Employer A is treated as 
operating qualified separate lines of business for purposes of applying 
section 410(b) to its qualified plans. The requirements of sections 
410(b) and 401(a)(4) must therefore be applied to Plans X, Y and Z 
separately with respect to the employees of each of the three qualified 
separate line of business operated by Employer A. Since Plan W benefits 
at least 70 percent of the nonexcludable nonhighly compensated employees 
of Employer A, however, the requirements of sections 410(b) and 
401(a)(4) (including section 401(k)) may be applied to Plan W on an 
employer-wide basis.

    (3) Separate application of section 401(a)(26)--(i) General rule. 
Except as provided in paragraph (c)(3)(ii) of this section, an employer 
is permitted to apply the requirements of section 401(a)(26) separately 
with respect to the employees of each qualified separate line of 
business operated by the employer only if the employer does so with 
respect to all its plans, all its employees, and all its qualified 
separate lines of business. Rules for applying the requirements of 
section 401(a)(26) separately with respect to the employees of a 
qualified separate line of business are provided in Sec. 1.414(r)-9. An 
employer may apply the rules of section 414(r) for purposes of section 
401(a)(26) even if it does not apply the rules of section 414(r) for 
purposes of section 410(b).
    (ii) Special rule for employer-wide plans. Notwithstanding the first 
sentence of paragraph (c)(3)(i) of this section, an employer that is 
treated as operating qualified separate lines of business in accordance 
with paragraph (b) of this section for purposes of both sections 410(b) 
and 401(a)(26) may apply the requirements of section 401(a)(26) on an 
employer-wide rather than a qualified-separate-line-of-business basis 
with respect to any plan (within the meaning of Sec. 1.414(r)-9(c)(2), 
but without regard to the mandatory disaggregation rule of 
Sec. 1.401(a)(26)-2(d)(1)(iv) for portions of a plan that benefit 
employees of different qualified separate lines of business), but only 
if the special rule for employer-wide plans in paragraph (c)(2)(ii) of 
this section is applied to the same plan for the same plan year.
    (4) Separate application of section 129(d)(8). [Reserved]
    (5) Separate application of other Code requirements. Under no 
circumstance may the requirements of any section of the Code (other than 
a section described in paragraphs (c)(2) through (c)(4) of this section) 
be applied separately with respect to the employees of

[[Page 626]]

a qualified separate line of business unless the section specifically 
cross-references, or is specifically cross-referenced by, section 
414(r). The Code sections whose requirements may not be applied 
separately with respect to the employees of a qualified separate line of 
business include, but are not limited to, sections 79(d)(3), 105(h), 
117(d)(3), 120(c)(2), 125(g)(3), 127(b)(2), 129(d)(3), 132, 195, 
401(a)(3) (as in effect on September 1, 1974), 414(q)(4), 
501(c)(17)(A)(ii), 501(c)(17)(B)(iii), 501(c)(18)(B), and 505(b)(1)(A).
    (d) Application of requirements--(1) In general. The requirements of 
paragraphs (b) and (c) of this section must be applied in accordance 
with the rules in this paragraph (d).
    (2) Interpretation. The provisions of this section and of 
Secs. 1.414(r)-2 through 1.414(r)-11 are to be interpreted in a 
reasonable manner consistent with the purpose of section 414(r) to 
recognize an employer's operation of qualified separate lines of 
business for bona fide business reasons and not for reasons of evading 
the requirements of any section of the Code, including sections 410(b), 
401(a)(26), and 129(d)(8). See section 414(r)(1) and (r)(7). Thus, for 
example, an employer is not permitted to apply these regulations in a 
manner that may literally comply with the other provisions of this 
section and of Secs. 1.414(r)-2 through 1.414(r)-11, but that does not 
reflect the employer's operation of qualified separate lines of business 
for bona fide business reasons.
    (3) Separate operating units. No additional requirements beyond 
those provided in these regulations apply to a separate operating unit. 
Thus, a separate operating unit that satisfies the requirements of 
paragraph (b)(2) of this section is deemed to satisfy the geographic 
separation requirement of section 414(r)(7) and accordingly is treated 
as a qualified separate line of business for all purposes under this 
section, including the separate application of section 401(a)(26).
    (4) Certain mergers and acquisitions. A portion of an employer that 
is acquired in a transaction described in section 410(b)(6)(C) and 
Sec. 1.410(b)-2(f) (i.e., an asset or stock acquisition, merger, or 
other similar transaction involving a change in the employer of the 
employees of a trade or business) is deemed to satisfy the requirements 
to be a qualified separate line of business, other than the 50-employee 
requirement and the notice requirement of pararaphs (b)(2)(iv)(R) and 
(b)(2)(iv)(C) of this section, respectively. In addition, the acquired 
employees are not taken into account, and the property and services 
provided by the acquired portion to customers of the employer are 
disregarded, for purposes of determining whether the employer's 
remaining lines of business satisfy the requirements of Secs. 1.414(r)-3 
through 1.414(r)-6. The rules in this paragraph (d)(4) apply only for 
those testing years with first testing days that fall within the 
transition period described in section 410(b)(6)(C). For this purpose, 
the transition period described in section 410(b)(6)(C) lasts only for 
so long as the conditions in that section are satisfied. For the 
definition of ``first testing day,'' see Sec. 1.414(r)-11(b)(7). See 
Sec. 1.414(r)-5(d)(4), Example 1, for an example of the application of 
the rule in this paragraph (d)(4). See also Sec. 1.414(r)-5(d) for an 
administrative scrutiny safe harbor applicable to certain separate lines 
of business acquired in a transaction described in this section.
    (5) Governmental and tax-exempt employers--(i) General rule. Except 
as provided in paragraph (d)(5)(ii) of this section, the rules of this 
section are applicable in determining whether section 401(a)(26) is 
satisfied by a plan maintained by an employer that is exempt from tax 
under Subtitle A of the Internal Revenue Code (including a governmental 
plan within the meaning of section 414(d)). Similarly, except as 
provided in paragraph (d)(5)(ii) of this section, the rules of this 
section are applicable in determining whether section 410(b) is 
satisfied by a plan that is subject to section 410(b) (including by 
virtue of Sec. 1410(b)-2(e)) and is maintained by an employer that is 
exempt from tax under Subtitle A of the Internal Revenue Code (including 
a governmental plan within the meaning of section 414(d)).
    (ii) Additional rules. [Reserved]
    (6) Testing year basis of application--(i) Section 414(r). Whether 
an employer is treated as operating qualified separate lines of business 
under section 414(r) in

[[Page 627]]

accordance with paragraph (b) of this section is determined on a year-
by-year basis with respect to the testing year. It is therefore possible 
for an employer to satisfy paragraph (b) of this section for one testing 
year and to fail to satisfy it for another testing year. It is also 
possible for an employer to satisfy paragraph (b) of this section for 
two testing years but to have designated its lines of business 
differently in each of those two testing years. In determining whether 
an employer satisfies paragraph (b) of this section for a testing year, 
the requirements of that paragraph are applied solely with respect to 
the testing year. Thus, all property and services provided by the 
employer to its customers during the testing year must be provided 
exclusively by portions of the employer that for the testing year 
constitute qualified separate lines of business. Furthermore, each 
employee of the employer must respectively be treated as an employee of 
one and only one of those qualified separate lines of business for all 
purposes with respect to the testing year.
    (ii) Sections 410(b), 401(a)(26), and 129(d)(8). For purposes of 
paragraph (c) of this section, relating to the separate application of 
sections 410(b), 401(a)(26), and 129(d)(8) to the employees of a 
qualified separate line of business, the determination whether an 
employer operates qualified separate lines of business in accordance 
with paragraph (b) of this section for a testing year generally applies 
for all plan years beginning in the testing year. Rules for the separate 
application of sections 410(b), 401(a)(26), and 129(d)(8) are 
respectively provided in Secs. 1.414(r)-8, 1.414(r)-9, and 1.414(r)-10.
    (7) Averaging rules. The employer is permitted to apply certain 
provisions of these regulations on the basis of a consecutive-year 
average (not to exceed five consecutive years) under the averaging rules 
of Sec. 1.414(r)-11(c).
    (8) Definitions. In applying the provisions of this section and of 
Sec. Sec. 1.414(r)-2 through 1.414(r)-11, the definitions in 
Secs. 1.414(r)-11(b) and 1.410(b)-9 govern, unless otherwise provided.
    (9) Effective--(i) General rule. The provisions of this section and 
of Sec. Sec. 1.414(r)-2 through 1.414(r)-11 apply to plan years and 
testing years beginning on or after January 1, 1994 (or January 1, 1996, 
in the case of plans maintained by organizations exempt from income 
taxation under section 501(a), including plans subject to section 
403(b)(12)(A)(i) (nonelective plans)).
    (ii) Reasonable compliance--(A) In general. With respect to plan 
years beginning before the date on which the Commissioner begins issuing 
determinations under section 414(r)(2)(C), and on or after the first day 
of the first plan year to which section 414(r) applies under section 
1112(a) of the Tax Reform Act of 1986, an employer is treated as 
operating qualified separate lines of business if the employer 
reasonably determines that it meets the requirements of section 414(r) 
(other than the requirement of administrative scrutiny under section 
414(r)(2)(C)).
    (B) Determination of reasonable compliance. Whether an employer 
reasonably determines that it meets the requirements of section 414(r) 
generally will be determined on the basis of all relevant facts and 
circumstances, including the extent to which the employer has resolved 
unclear issues in its favor. For the period described in paragraph 
(d)(9)(ii)(A) of this section, the Internal Revenue Service will 
consider the employer's compliance with the terms of these final 
regulations (other than the requirement of administrative scrutiny under 
paragraph (b)(2)(iv)(D) of this section) to constitute a reasonable 
determination that the employer neets tge reqyurements of section 414(r) 
(other than the requirement of administrative scrutiny under section 
414(r)(2)(C)).
    (C) Effect on other plans. If an employer sponsors a plan that has a 
plan year beginning within the period decribed in paragraph 
(d)(9)(ii)(A) of this section, the employer's reasonable determination 
of its qualified separate lines of business for the testing year in 
which that plan year begins, and the allocation of employees to those 
qualified separate lines of business, must also be used for purposes of 
applying Sec. 1.414(r)-8 and Sec. 1.414(r)-9 for plan years that begin 
in that testing year but after the end of the period described in 
paragraph (d)(9)(ii)(A) of this section.
    (e) Additional rules. The Commissioner may, in revenue rulings, 
notices,

[[Page 628]]

and other guidance of general applicability, provide any additional 
rules that may be necessary or appropriate in applying the qualified 
separate line of business requirements of section 414(r). These 
additional rules may include, for example, new safe harbors in 
Sec. 1.414(r)-5.

[T.D. 8376, 56 FR 63437, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32916, June 27, 1994]



Sec. 1.414(r)-2  Line of business.

    (a) General rule. A line of business is a portion of an employer 
that is identified by the property or services it provides to customers 
of the employer. For this purpose, an employer is permitted to determine 
its lines of business by designating the property or services that each 
of its lines of business provides to customers of the employer. 
Paragraph (b) of this section explains how an employer determines its 
lines of business for a testing year. Paragraph (c) of this section 
provides examples illustrating the application of this section.
    (b) Employer determination of its lines of business--(1) In general. 
An employer determines its lines of business for a testing year first by 
identifying all the property and services it provides to its customers 
during the testing year, and then by designating which portion of the 
property and services is provided by each of its lines of business.
    (2) Property and services provided to customers--(i) In general. 
Property, whether real or personal, tangible or intangible, is provided 
by an employer to a customer if the employer provides the property to or 
on behalf of the customer for consideration. Similarly, services are 
provided by an employer to a customer if the employer renders the 
services to or on behalf of the customer for consideration. An 
individual item of property or service is taken into account under this 
paragraph (b)(2) only if the employer provides the item to a person 
other than the employer in the ordinary course of a trade or business 
conducted by the employer and the person to whom the employer provides 
the item is acting in the capacity of a customer of the employer. A type 
of tangible property is deemed to be provided to customers of the 
employer for purposes of this section if, with respect to a business 
that produces or manufactures that type of tangible property, the 
employer satisfies the special rule in Sec. 1.414(r)-3(d)(2)(iii)(B) for 
vertically integrated businesses.
    (ii) Timing of provision of property or services. Generally an 
employer determines its lines of business on the basis of the property 
and services it provides to its customers for consideration during the 
testing year. However, it is not necessary both that property or 
services actually be provided, and that consideration for the property 
or services actually be paid, during the current testing year. For an 
employer to be considered to provide property or services to customers 
for consideration during a testing year under this paragraph (b)(2), it 
is sufficient that the property or services actually be provided to 
customers during the testing year, the consideration actually be paid 
during the testing year, or the employer actually incur significant 
costs during the testing year associated with the provision of the 
property or services to a specified customer or specified customers.
    (3) Employer designation--(i) In general. Once the employer has 
identified all the property and services it provides to its customers 
during the testing year under paragraph (b)(2) of this section, the 
employer determines its lines of business for the testing year by 
designating which portion of those property and services is provided by 
each of its lines of business. For this purpose, the employer must 
apportion all the property and services identified under paragraph 
(b)(2) of this section among its lines of business. An employer 
generally is not required to designate its lines of business for the 
testing year in the same manner as it designates its lines of business 
for any other testing year.
    (ii) Ability to combine unrelated types of property or services in a 
single line of business. For purposes of this paragraph (b)(3), there is 
no requirement that a line of business provide only one type of property 
or service, or only related types of property or services. Nor is there 
any requirement that a line of business provide solely property or 
solely services. Thus, the employer is permitted to combine in a single 
line of

[[Page 629]]

business dissimilar types of property or services that are otherwise 
unrelated to one another.
    (iii) Ability to separate related types of property or services into 
two or more lines of business. For purposes of this paragraph (b)(3), 
there is no requirement that all property or services of related types 
or the same type be provided by a single line of business. Thus, the 
employer is permitted to designate two or more lines of business that 
provide related types of property or services, or the same type of 
property or service. An employer might designate two or more lines of 
business that provide property or services of related types or the same 
type, for example, where the lines of business manufacture, prepare, or 
provide the property or services in different geographic areas (e.g., in 
different regions of the country or the world), or at different levels 
in the chain of commercial distribution (e.g., wholesale versus retail), 
or in different types of transactions (e.g, sale versus lease), or for 
different types of customers (e. g., governmental versus private), or 
subject to different legal constraints (e. g., regulated versus 
unregulated), or if the lines of business have developed differently 
(e.g., one line of business was acquired while another line of business 
developed internally). Notwithstanding the foregoing, an employer is not 
permitted to designate two or more lines of business that provide 
property or services of related types or the same type, if the 
employer's designation is unreasonable. An employer's designation would 
be unreasonable, for example, if the designation separated two types of 
property or services in different lines of business, but the employer 
did not provide those types of property or services separately from one 
another to its customers. Similarly, an employer's designation would be 
unreasonable if it separated two types of property or services in 
different lines of business, but the provision of one type of property 
or service was merely ancillary or incidental to, or regularly 
associated with, the provision of the other type of property or service. 
See generally Sec. 1.414(r)-1(d)(2) (requiring an employer's operation 
of qualified separate lines of business to be for bona fide business 
reasons).
    (iv) Affiliated service groups. An employer is not permitted to 
designate its lines of business in a manner that results in separating 
employees of an affiliated service group (within the meaning of section 
414(m)) from other employees of the employer. See section 414(r)(8).
    (c) Examples--(1) In general. Paragraphs (c)(2) and (c)(3) of this 
section provide examples that illustrate the application of this 
section.
    (2) Examples illustrating employer designation. The following 
examples illustrate the application of paragraph (b)(3) of this section 
relating to an employer's designation of the property or services 
provided to customers by each of its lines of business.

    Example 1. Employer A is a domestic conglomerate engaged in the 
manufacture and sale of consumer food and beverage products and the 
provision of data processing services to private industry. Employer A 
provides no other property or services to its customers. Pursuant to 
paragraph (b)(3) of this section, Employer A apportions all the property 
and services it provides to its customers among three lines of business, 
one providing all its consumer food products, a second providing all its 
consumer beverage products, and a third providing all its data 
processing services. Employer A has three lines of business for purposes 
of this section.
    Example 2. The facts are the same as in Example 1, except that 
Employer A determines that neither the consumer food products line of 
business nor the consumer beverage products line of business would 
satisfy the separateness criteria of Sec. 1.414(r)-3 for recognition as 
a separate line of business. Accordingly, pursuant to paragraph (b)(3) 
of this section, Employer A apportions all the property and services it 
provides to its customers between only two lines of business, one 
providing all its consumer food and beverage products, and a second 
providing all its data processing services. Employer A has two lines of 
business for purposes of this section.
    Example 3. The facts are the same as in Example 2, except that 
Employer A also owns and operates a regional commuter airline, a 
professional basketball team, a pharmaceutical manufacturer, and a 
leather tanning company. Pursuant to paragraph (b)(3) of this section, 
Employer A apportions all the property and services it provides to its 
customers among three lines of business, one providing all its consumer 
food and beverage products, a second providing all its data processing 
services, and a third providing all the other property and services 
provided to customers through Employer A's regional commuter airline, 
professional basketball

[[Page 630]]

team, pharmaceutical manufacturer, and leather tanning company. Even 
though the third line of business includes dissimilar types of property 
and services that are otherwise unrelated to one another, paragraph 
(b)(3)(ii) of this section permits Employer A to combine these property 
and services in a single line of business. Employer A has three lines of 
business for purposes of this section.
    Example 4. The facts are the same as in Example 2, except that 
Employer A has recently acquired Corporation L, whose only product is a 
well-known brand of gourmet ice cream. Although Employer A manufactures 
and sells other ice cream products, it does not manufacture or market 
the newly acquired brand of gourmet ice cream except through Corporation 
L. Pursuant to paragraph (b)(3) of this section, Employer A apportions 
all the property and services it provides to its customers among three 
lines of business, one providing only the newly acquired brand of 
gourmet ice cream, a second providing all its other consumer food and 
beverage products (including the other ice cream products manufactured 
and sold by Employer A) and a third providing all its data processing 
services. Even though the gourmet ice cream line of business provides 
the same type of property as the consumer food and beverage line of 
business (i.e., ice cream), paragraph (b)(3)(iii) of this section 
permits Employer A to separate its ice cream products between two 
different lines of business. Employer A has three lines of business for 
purposes of this section.
    Example 5. The facts are the same as in Example 2, except that 
Employer A operates the data processing services portion of its business 
in two separate subsidiaries, one serving customers in the eastern half 
of the United States and the other serving customers in the western half 
of the United States. Pursuant to paragraph (b)(3) of this section, 
Employer A apportions all the property and services it provides to its 
customers among three lines of business, one providing all its consumer 
food and beverage products, a second providing data processing services 
to customers in the eastern half of the United States, and a third 
providing data processing services to customers in the western half of 
the United States. Even though the second and third lines of business 
provide the same type of service (i.e., data processing services), 
paragraph (b)(3)(iii) of this section permits Employer A to separate its 
data processing services into two lines of business. Employer A has 
three lines of business for purposes of this section.
    Example 6. Employer B is a diversified engineering firm offering 
civil, chemical, and aeronautical engineering services to government and 
private industry. Employer B provides no other property or services to 
its customers. Employer B operates the aeronautical engineering services 
portion of its business as two separate divisions, one serving federal 
government customers and the other serving customers in private 
industry. Pursuant to paragraph (b)(3) of this section, Employer B 
apportions all the property and services it provides to its customers 
among four lines of business, one providing all its civil engineering 
services, a second providing all its chemical engineering services, a 
third providing aeronautical engineering services to federal government 
customers, and a fourth providing aeronautical engineering services to 
customers in private industry. Even though the third and fourth lines of 
business include the same type of service (i.e., aeronautical 
engineering services), paragraph (b)(3)(iii) of this section permits 
Employer B to separate its aeronautical engineering services into two 
lines of business. Employer B has four lines of business for purposes of 
this section.
    Example 7. Among its other business activities, Employer C 
manufacturers industrial diesel generators. At no additional cost to its 
buyers, Employer C warrants the proper functioning of its diesel 
generators for a one-year period following sale. Pursuant to its 
warranty, Employer C provides labor and parts to repair or replace any 
components that malfunction within the one-year warranty period. Because 
Employer C does not provide the industrial diesel generators, on the one 
hand, and the warranty repair services and replacement parts, on the 
other hand, separately from one another to its customers, under 
paragraph (b)(3)(iii) of this section it would be unreasonable for 
Employer C to separate these property and services in different lines of 
business.
    Example 8. Among its other business activities, Employer D leases 
office photocopying equipment. Employer D also provides photo-copying 
supplies and repair services to its lessees for a separate charge. 
Employer D generally does not provide such supplies and repair services 
to persons other than its lessees. Lessees of Employer D's equipment are 
permitted to use photo-copying supplies and repair services from 
suppliers other than Employer D. Because the provision of the photo-
copying supplies and repair services are merely ancillary or incidental 
to the provision of the leased photo-copiers, under paragraph 
(b)(3)(iii) of this section it would be unreasonable for Employer D to 
separate these property and services in different lines of business.
    Example 9. Employer E operates a medical clinic. The employees of 
the clinic include physicians, nurses, and laboratory technicians, all 
of whom participate in providing medical and related services to 
patients of the clinic. Under paragraph (b)(3)(iii) of this section, it 
would be unreasonable for Employer E to separate the services of the 
physicians, nurses, and laboratory technicians in different lines of 
business.

[[Page 631]]

    Example 10. Employer F is a law firm. The employees of the firm 
include lawyers, paralegals, and secretaries, all of whom participate in 
renderlng legal and related services to clients of the firm. Under 
paragraph (b)(3)(iii) of this section, it would be unreasonable for 
Employer F to separate the services of the lawyers, paralegals, and 
secretaries in different lines of business.
    Example 11. Employer G is a management consulting firm. The 
employees of the firm include management consultants, secretaries, and 
other support staff personnel, all of whom participate in rendering 
management consulting and related services to clients of the firm. Under 
paragraph (b)(3)(iii) of this section, it would be unreasonable for 
Employer G to separate the services of the management consultants, 
secretaries, and other support staff personnel in different lines of 
business.

    (3) Examples illustrating property and services provided to 
customers. The following examples illustrate the application of 
paragraph (b)(2) of this section relating to property and services 
provided to customers of the employer.

    Example 1. Employer H operates several dairy farms and dairy product 
processing plants. The dairy farms provide part of their output of milk 
and milk by-products to Employer H's dairy product processing plants and 
also sell part to retail distributors unrelated to Employer H. The dairy 
farms' provision of milk and milk by-products to Employer H's dairy 
product processing plants does not constitute the provision of property 
or services to customers of Employer H because the milk and milk by-
products are not provided to a person other than employer H. However, 
the dairy farms' provision of milk and milk by-products to independent 
retail distributors does constitute the provision of property or 
services to customers of Employer H under paragraph (b)(2) of this 
section.
    Example 2. The facts are the same as in Example 1, except that the 
dairy farms provide their entire output of milk and milk by-products to 
Employer H's dairy product processing plants. The dairy farms' provision 
of milk and milk by-products to the dairy product processing plants 
generally does not constitute the provision of property or services to 
customers of Employer H because the milk and milk by-products are not 
provided to a person other than Employer H. However, paragraph (b)(2)(i) 
of this section provides a special rule for vertically integrated 
businesses that satisfy Sec. 1.414(r)-3(d)(2)(iii)(B). If Sec. 1.414(r)-
3(d)(2)(iii)(B) is satisfied, then, under the special rule of paragraph 
(b)(2)(i) of this section, the milk and milk by-products are deemed to 
be provided to customers of Employer H.
    Example 3. Among its other business activities, Employer J 
manufactures automobiles. Employer J operates a cafeteria at one of its 
automobile manufacturing facilities. The cafeteria is intended primarily 
for use by employees of Employer J, but nonemployees are not prohibited 
from using the cafeteria. The cafeteria charges the same prices to 
employees and non-employees. Under paragraph (b)(2) of this section, the 
provision of cafeteria services to employees of Employer J does not 
constitute the provision of property or services to customers of 
Employer J, because the cafeteria services are provided to the employees 
in their capacity as employees of Employer J and not as customers of 
Employer J.
    Example 4. Employer K sells books and periodicals to members of the 
public and provides telecommunications services to private industry. 
Employer K periodically acquires and disposes of businesses in both 
asset and stock transactions. In addition, for its own investment 
purposes, Employer K acquires and disposes of corporate and other 
securities. Under paragraph (b)(2) of this section, the sale by Employer 
K of businesses and investment securities does not constitute the 
provision of property or services to customers of Employer K, because 
the sales are not made in the ordinary course of a trade or business 
conducted by Employer K. However, the sale of published materials and 
the provision of telecommunications services to persons unrelated to 
Employer K does constitute the provision of property or services to 
customers of Employer K.
    Example 5. Employer L is active in the financial services industry. 
Subsidiary 1 of Employer L is a brokerage firm that is regulated as a 
broker-dealer under applicable federal and state law. In its capacity as 
a dealer, Subsidiary 1 holds in its own inventory securities of 
unrelated corporations and regularly sells these securities to unrelated 
persons. Under paragraph (b)(2) of this section, the sale by Subsidiary 
1 of the securities to unrelated persons constitutes the provision of 
property or services to customers of Employer L, because the sales are 
made in the ordinary course of Subsidiary 1's trade or business as a 
broker-dealer.
    Example 6. The facts are the same as in Example 5. Subsidiary 2 of 
Employer L is an insurance company that is regulated under applicable 
state insurance laws. In managing its investments, Subsidiary 2 
regularly makes use of the brokerage services of Subsidiary 1 (which 
Subsidiary 1 regularly provides to unrelated persons as well). Under 
paragraph (b)(2) of this section, Subsidiary 1's provision of brokerage 
services to Subsidiary 2 does not constitute the provision of property 
or services to customers of Employer L, because the brokerage services 
are not provided to a person other than Employer L. However, Subsidiary 
1's provision

[[Page 632]]

of brokerage services to unrelated persons does constitute the provision 
of property or services to customers of Employer L.
    Example 7. Employer M is a shipbuilder. In a testing year, Employer 
M enters into a contract with a customer to construct a new cargo ship 
for delivery two years later. Employer M incurs significant costs 
designing and planning for the production of the new ship during the 
testing year, but receives no payments from the customer during that 
year. Under paragraph (b)(2) of this section, Employer M is treated as 
providing the cargo ship to the customer during the testing year.
    Example 8. The facts are the same as in Example 7, except that, 
pursuant to a request from the customer, Employer M also incurred 
significant costs developing a prototype and submitting a bid on the new 
cargo ship in the prior testing year, and that these costs were not 
reimbursed by the customer. Under paragraph (b)(2) of this section, 
Employer M is also treated as providing the cargo ship to the customer 
in the prior testing year.

[T.D. 8376, 56 FR 63439, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32917, June 27, 1994]



Sec. 1.414(r)-3  Separate line of business.

    (a) General rule. A separate line of business is a line of business 
(as determined under Sec. 1.414(r)-2) that is organized and operated 
separately from the remainder of the employer. Paragraph (b) of this 
section sets forth the rules for determining whether a line of business 
is organized and operated separately from the remainder of the employer. 
Paragraph (c) of this section provides certain supplementary rules 
necessary to apply the requirements of paragraph (b) of this section, as 
well as examples illustrating the application of those requirements. 
Paragraph (d) of this section provides an optional rule for lines of 
business that are vertically integrated.
    (b) Separate organization and operation--(1) In general. A line of 
business is organized and operated separately from the remainder of the 
employer for a testing year only if it satisfies all the requirements of 
paragraphs (b)(2) through (b)(5) of this section for the testing year.
    (2) Separate organizational unit. The line of business must be 
formally organized as a separate organizational unit or group of 
separate organizational units within the employer. For this purpose, an 
organizational unit is a corporation, partnership, division, or other 
unit having a similar degree of organizational formality. This 
requirement must be satisfied on every day of the testing year.
    (3) Separate financial accountability. The line of business must be 
a separate profit center or group of separate profit centers within the 
employer. This requirement must be satisfied on every day of the testing 
year. In addition, the employer must maintain books and records that 
provide separate revenue and expense information that is used for 
internal planning and control with respect to each profit center 
comprising the line of business.
    (4) Separate employee workforce. The line of business must have its 
own separate employee workforce. A line of business has its own separate 
workforce only if at least 90 percent of the employees who provide 
services to the line of business, and who are not substantial-service 
employees with respect to any other line of business, are substantial-
service employees with respect to the line of business. See paragraph 
(c)(2) of this section to determine how the percentage in the preceding 
sentence is calculated for the testing year.
    (5) Separate management. The line of business must have its own 
separate management. A line of business has its own separate management 
only if at least 80 percent of the employees who are top-paid employees 
with respect to the line of business are substantial-service employees 
with respect to the line of business. See paragraph (c)(3) of this 
section to determine how the percentage in the preceding sentence is 
calculated for the testing year.
    (c) Supplementary rules--(1) In general. This paragraph (c) provides 
certain supplementary rules necessary to apply the requirements of 
paragraph (b) of this section, as well as examples illustrating the 
application of those requirements.
    (2) Determination of separate employee workforce. The percentage in 
paragraph (b)(4) of this section is the fraction (expressed as a 
percentage)--
    (i) The numerator of which is the number of substantial-service 
employees with respect to the line of business within the meaning of 
Sec. 1.414(r)-11(b)(2); and

[[Page 633]]

    (ii) The denominator of which is the total number of employees who 
provide services to the line of business within the meaning of paragraph 
(c)(5) of this section and who are not substantial-service employees 
with respect to any other line of business.
    (3) Determination of separate management. The percentage in 
paragraph (b)(5) of this section is the fraction (expressed as a 
percentage)--
    (i) The numerator of which is the number of employees who are both 
top-paid employees and substantial-service employees with respect to the 
line of business within the meaning of Sec. 1.414(r)-11(b)(3) and (2), 
respectively; and
    (ii) The denominator of which is the total number of top-paid 
employees with respect to the line of business within the meaning of 
Sec. 1.414(r)-11(b)(3).
    (4) Employees taken into account. For purposes of applying this 
paragraph (c), only employees who are employees on the first testing day 
are taken into account. For this purpose, there are no excludable 
employees except nonresident aliens described in section 410(b)(3)(C). 
Consequently, all other employees who are employees on the first testing 
day are taken into account, including collectively bargained employees. 
For the definition of first testing day, see Sec. 1.414(r)-11(b)(7).
    (5) Services taken into account--(i) Provision of services to a line 
of business. An employee provides services to a line of business if more 
than a negligible portion of the employee's services contributes to 
providing the property or services provided by the line of business to 
customers of the employer. All of the services of each employee who 
provides services to the employer contribute, whether directly or 
indirectly, to the provision of property or services to customers of the 
employer, and therefore each employee who provides services to the 
employer must be treated as providing more than a negligible portion of 
the employee's services to one or more lines of business operated by the 
employer.
    (ii) Period for which services are provided. Only services performed 
by an employee during the testing year that contribute to providing the 
property or services provided by a line of business to customers are 
taken into account. An employee's services during the testing year are 
considered to contribute to providing the property or services provided 
by a line of business to customers of the employer if--
    (A) The employee's services during the testing year contribute to 
providing such property or services to customers of the employer during 
the testing year; or
    (B) It is reasonably anticipated that the employee's services during 
the testing year will contribute to providing such property and services 
to customers of the employer after the close of the testing year.
    (iii) Optional rule for employees who change status--(A) In general. 
Solely for purposes of the separateness rules of this section and the 
assignment rules of Sec. 1.414(r)-7, if an employee changes status as 
described in paragraph (c)(5)(iii)(B) of this section, an employer may, 
for up to three consecutive testing years after the base year (within 
the meaning of paragraph (c)(5)(iii)(B) (1) or (2) of this section), 
treat the employee as providing the same level of service to its lines 
of business as the employee provided in the base year.
    (B) Change in employee's status. An employee changes status as 
described in this paragraph (c)(5)(iii)(B) if--
    (1) For a testing year (the base year), the employee was a 
substantial-service employee with respect to a qualified separate line 
of business of the employer (prior line of business) and, for the 
immediately succeeding testing year, the employee is not a substantial-
service employee with respect to that prior line of business; or
    (2) For a testing year (the base year), the employee was a residual 
shared employee and, for the immediately succeeding testing year, the 
employee is a substantial-service employee with respect to a qualified 
separate line of business.
    (6) Examples of the separate employee workforce requirement. The 
following examples illustrate the application of the separate employee 
workforce requirement in paragraph (b)(4) of this section and the 
supplementary rules of this paragraph (c). Unless otherwise specified, 
it is assumed that the employees

[[Page 634]]

and their services described in these examples are taken into account 
under paragraphs (c) (4) and (5) of this section for the testing year 
and that the employer does not use the option under Sec. 1.414(r)-
11(b)(2) to treat employees who provide less than 75 percent of their 
services to a line of business as substantial-service employees with 
respect to the line of business.

    Example 1. Employer A operates three lines of business as determined 
under Sec. 1.414(r)-2. One of Employer A's lines of business 
manufactures and sells tires and other automotive products. Employee M 
is a tire press operator in Employer A's tire factory. Employee N is the 
manager of the tire factory. Under these facts, the services of 
Employees M and N contribute to providing tires to customers of Employer 
A. Both employees therefore provide services to Employer A's tire and 
automotive products line of business within the meaning of paragraph 
(c)(5) of this section.
    Example 2. The facts are the same as in Example 1. In addition, none 
of the services of Employees M and N that contribute to providing 
property or services to customers contribute to providing any property 
or service other than tires to customers of Employer A. Under these 
facts, Employees M and N provide at least 75 percent of their respective 
services to Employer A's tire and automotive products line of business. 
Therefore Employees M and N are substantial-service employees with 
respect to Employer A's tire and automotive products line of business 
within the meaning of Sec. 1.414(r)-11(b)(2), and do not provide any 
services within the meaning of paragraph (c)(5) of this section to any 
of Employer A's other lines of business. Moreover, because Employees M 
and N provide at least 75 percent of their services to Employer A's tire 
and automotive products line of business and are substantial-service 
employees with respect to that line, they are disregarded in applying 
paragraph (b)(4) of this section to any other line of business, even if 
they provide services to the other line.
    Example 3. The facts are the same as in Example 2. Employer A's 
second line of business manufactures and sells construction machinery, 
and Employer A's third line of business manufactures and sells 
agricultural equipment. As part of these lines of business, Employer A 
operates a construction machinery factory and an agricultural equipment 
factory on the same site as the tire factory described in Example 2. 
Employer A's facilities at the site include a health clinic and a 
fitness center that serve the employees of the construction machinery 
factory, the agricultural equipment factory, and the tire factory. 
Employee O is a nurse in the health clinic, and Employee P is a fitness 
instructor in the fitness center. Both employees therefore provide 
services within the meaning of paragraph (c)(5) of this section to 
Employer A's tire and automotive products line of business, construction 
machinery line of business, and agricultural equipment line of business. 
In addition, under these facts, Employer A determines that approximately 
33 percent of the services of Employees O and P are provided to each of 
Employer A's three lines of business. As a result, neither Employee O or 
P provide at least 75 percent of their respective services to any of 
Employer A's lines of business. Therefore, Employees O and P are not 
substantial-service employees with respect to any of Employer A's three 
lines of business within the meaning of Sec. 1.414(r)-11(b)(2).
    Example 4. The facts are the same as in Example 3. Employee Q is the 
president and chief executive officer of Employer A and is responsible 
for reviewing the performance of all Employer A's lines of business. 
Under these facts, the services of Employee Q contributes to providing 
property and services to customers of each of Employer A's three lines 
of business. Employee Q therefore provides services to each of these 
three lines of business. Employer A determines that Employee Q provides 
the following percentages of his services to Employer A's three lines of 
business: tire and automotive products--40 percent; construction 
machinery--40 percent, and agricultural equipment--20 percent. Employee 
Q does not provide at least 75 percent of his services to any of 
Employer A's lines of business. Therefore, Employee Q is not a 
substantial-service employee with respect to any of Employer A's three 
lines of business within the meaning of Sec. 1.414(r)-11(b)(2).
    Example 5. The facts are the same as in Example 4, except that 
Employer A also owns 75 percent of Corporation X. Corporation X is not 
treated as part of Employer A within the meaning of Sec. 1.410(b)-9. 
Employee R is an accountant in the accounting department of Employer A. 
Employee R devotes all of his time to maintaining the accounting books 
and records of the tire and automotive products line of business of 
Employer A and the accounting books and records of Corporation X. 
Employer A determines that Employee R provides 40 percent of his 
services directly to the tire and automotive products line of business. 
Employer A also determines that Employee R provides the following 
percentages of the remainder of Employee R's services (i.e., his 
provision of services of maintaining the accounting books and records of 
Corporation X) indirectly to Employer A's three lines of business by 
virtue of the services he provides to Corporation X: tire and automotive 
products--25 percent; construction machinery--20 percent, and 
agricultural equipment--15 percent. Therefore, Employee R provides 65 
percent of his services to the

[[Page 635]]

tire and automotive products line of business of Employer A (i.e., 40 
percent directly and 25 percent indirectly). Under the definition of 
substantial-service employee in Sec. 1.414(r)-11(b)(2), Employer A may 
treat Employee R as a substantial-service employee with respect to the 
tire and automotive products line of business because Employee R 
provides at least 50 percent of his services to that line. In that case, 
Employee R would be disregarded in applying paragraph (b)(4) of this 
section to the construction machinery and agricultural equipment lines 
of business.
    Example 6. The facts are the same as in Example 5. Employee S is a 
lawyer in the legal department located at the headquarters who devotes 
all her time to product liability suits filed against the construction 
machinery line of business. Under these facts, the services of Employee 
S contribute to providing property and services to customers of Employer 
A in the construction machinery line of business, and therefore Employee 
S provides services to that line of business. Because Employee S's 
services do not contribute to providing property or services in any 
other of Employer A's lines of business within the meaning of paragraph 
(c)(5) of this section, Employee S provides more than 75 percent of her 
services to the construction machinery line of business and therefore is 
a substantial-service employee with respect to Employer A's construction 
machinery line of business within the meaning of Sec. 1.414(r)-11(b)(2).
    Example 7. The facts are the same as in Example 6. Employer A also 
maintains a separate facility that houses a centralized procurement, 
marketing, and billing operation for all of its lines of business. None 
of the procurement, marketing, or billing employees specializes in any 
particular line of business. Under these facts, the services of the 
procurement, marketing, and billing employees contribute to providing 
property and services to customers of Employer A in each of Employer A's 
three lines of business. Employer A determines that each of the 
procurement, marketing, and billing employees provides approximately an 
equal proportion of their services to each of Employer A's three lines 
of business. These employees therefore provide services to all of 
Employer A's lines of business within the meaning of paragraph (c)(5) of 
this section. However, none of them provides at least 75 percent of his 
services to any line of business. Therefore, these employees are not 
substantial-service employees with respect to any of Employer A's three 
lines of business within the meaning of Sec. 1.414(r)-11(b)(2).
    Example 8. The facts are the same as in Example 7. Employee T works 
for the construction machinery line of business. During the testing 
year, he is temporarily detailed to the agricultural equipment line of 
business. His temporary detail lasts for one week, after which he 
returns to his regular duties with the construction machinery line of 
business. Under these facts, Employee T does not provide more than a 
negligible portion of his services during the testing year to the 
agricultural equipment line of business. Accordingly, Employee T does 
not provide services to the agricultural equipment line of business 
within the meaning of paragraph (c)(5) of this section. In addition, 
because Employee T provides at least 75 percent of his services to the 
construction machinery line of business, Employee T is a substantial-
service employee with respect to Employer A's agricultural equipment 
line of business within the meaning of Sec. 1.414(r)-11(b)(2).
    Example 9. The facts are the same as in Example 8, except that, 
during the testing year but before the first testing day, Employee T 
retires from employment with Employer A. Under paragraph (c)(5)(ii) of 
this section, Employee T is not taken into account in determining 
whether Employer A's construction machinery line of business has its own 
separate employee workforce within the meaning of paragraph (b)(4) of 
this section.
    Example 10. Employer B is a multinational controlled group of 
corporations that engages in the exploration, production, refining, and 
marketing of petrochemical products. Employer B operates two lines of 
business as determined under Sec. 1.414(r)-2. The first line of business 
(the ``exploration, production, and refining line of business'') 
provides lubricating oil, gasoline, and other petrochemical products to 
wholesale customers of Employer B as well as to the second line of 
business. The wholesale customers of Employer B include independent 
jobbers, independent franchisees that operate retail filling stations 
under Employer B's trademark and tradename, as well as chemical and 
plastics manufacturers. The second line of business (the ``retail 
marketing line of business'') provides lubricating oil and gasoline 
products to retail customers of Employer B through filling stations 
owned and operated by Employer B. Employee U is an attendant at a 
filling station owned and operated by Employer B. Employee U performs no 
other services for Employer B, Under these facts, Employee U provides at 
least 75 percent of his services to Employer B's retail marketing line 
of business and therefore is a substantial-service employee with respect 
to that line of business within the meaning of Sec. 1.414(r)-11(b)(2), 
and does not provide any services within the meaning of paragraph (c)(5) 
of this section to any of Employer B's other lines of business.
    Example 11. The facts are the same as in Example 10. Employer B 
operates a refinery that produces lubricating oil, gasoline, and other 
petrochemical products. Employee V is an operating engineer at the 
refinery who is involved at a stage in the refining process before 
lubricating oil and gasoline products

[[Page 636]]

have been separated from other types of petrochemical products. Employee 
V performs no other services for Employer B. Under these facts, Employee 
V's services contribute to providing property and services to customers 
of Employer B in both the exploration, production, and refining line of 
business and the retail marketing line of business. Employee V therefore 
provides services to both lines of business within the meaning of 
paragraph (c)(5) of this section. See paragraph (d) of this section, 
however, for an optional rule for vertically integrated lines of 
business.
    Example 12. The facts are the same as in Example 11. Employee W is a 
petroleum engineer who conducts geological studies of potential future 
drilling sites. Although Employee W's services during the testing year 
will not contribute to providing lubricating oil, gasoline, and other 
petrochemical products to customers of Employer B during the testing 
year, it is reasonably anticipated (in accordance with paragraph 
(c)(5)(ii)(B) of this section) that her services during the testing year 
will contribute to providing such products to customers of Employer B 
after the close of the testing year. Under these facts, Employee W 
provides her services to both of Employer B's lines of business within 
the meaning of paragraph (c)(5) of this section.

    (7) Examples of the separate management requirement. The following 
examples illustrate the application of the separate management 
requirement in paragraph (b)(5) of this section and the supplementary 
rules of this paragraph (c). Unless otherwise specified, it is assumed 
that employees who provide services to a line of business are not 
substantial-service employees with respect to any other line of business 
and that, in determining the top-paid employees with respect to a line 
of business, the employer is using the option under Sec. 1.414(r)-
11(b)(3) to disregard all employees who provide less than 25 percent of 
their services to that line of business.

    Example 1. (a) Employer C operates three lines of business as 
determined under Sec. 1.414(r)-2. One of its lines of business is the 
operation of a chain of athletic equipment and apparel stores. Of 
Employer C's total workforce, 12,000 employees provide more than a 
negligible amount of the services they provide to Employer C to the 
athletic equipment and apparel stores line of business, within the 
meaning of paragraph (c)(5) of this section. Of the 1,200 employees who 
constitute the top ten percent by compensation of those 12,000 
employees, 930 are substantial-service employees with respect to that 
line of business. Because 930 is 77.5 percent of 1,200, less than 80 
percent of the top-paid employees with respect to the line of business 
are substantial-service employees with respect to that line of business. 
Therefore, Employer C's athletic equipment and apparel stores line of 
business does not have its own separate management under paragraph 
(b)(5) of this section.
    (b) Assume that, in determining the top-paid employees with respect 
to the athletic equipment and apparel stores line of business, Employer 
C chooses to disregard all employees who provide less than 25 percent of 
their services to the line of business as permitted under the definition 
in Sec. 1.414(r)-11(b)(3). Of the 12,000 employees who provide more than 
a negligible amount of their services to the athletic equipment and 
apparel stores line of business, 10,000 provide at least 25 percent of 
their services to that line. Of the 1,000 employees who constitute the 
top ten percent by compensation of those 10,000 employees, 930 are 
substantial-service employees with respect to the athletic equipment and 
apparel stores line of business. Because 930 is 93 percent of 1,000, at 
least 80 percent of the top-paid employees with respect to the line of 
business are substantial-service employees with respect to that line of 
business. Therefore, Employer C's athletic equipment and apparel stores 
line of business has its own separate management and satisfies the 
requirement of paragraph (b)(5) of this section.
    Example 2. The facts are the same as in Example 1. Employee X is a 
vice president of the accounting department located at the headquarters, 
who devotes all of his time supervising the staff of Employer C's 
accounting department. Employer C determines that 10 percent of Employee 
X's services contribute to providing property and services to customers 
of Employer C's athletic equipment and apparel stores line of business 
and 45 percent of Employee X's services contribute to providing property 
and services to customers to each of Employer C's other two lines of 
business. Because Employee X does not provide at least 25 percent of his 
services to Employer C's athletic equipment and apparel stores line of 
business, Employee X is not one of the 10,000 employees described in 
Example 1 and therefore cannot be a top-paid employee within the meaning 
of Sec. 1.414(r)-11(b)(3) with respect to the athletic equipment and 
apparel stores line of business. Therefore, Employee X is not taken into 
account in determining whether the athletic equipment and apparel stores 
line of business satisfies the separate management requirement of 
paragraph (b)(5) of this section.
    Example 3. The facts are the same as in Example 2 except that 
Employee X provides 60 percent of his services to Employer C's second 
line of business, an athletic equipment

[[Page 637]]

factory, and 30 percent of his service to Employer C's third line of 
business, a fast-food chain. Because Employee X provides at least 50 
percent of his services to the athletic equipment factory line of 
business, Employer C chooses to treat him as a substantial- service 
employee with respect to that line of business, as permitted under 
Sec. 1.414(r)-11(b)(2). Thus, Employee X is taken into account as a 
substantial-service employee with respect to the athletic equipment 
factory line of business and is disregarded in applying the separate 
workforce and separate management requirements under paragraphs (b) (4) 
and (5) to the fast-food chain line of business.
    Example 4. Employer D operates four lines of business as determined 
under Sec. 1.414(r)-2. One of its lines of business is a machine tool 
shop. Sixty of Employer D's employees provide at least 25 percent of 
their services to the machine tool shop line of business. Of the six 
employees who constitute the top 10 percent by compensation of those 60 
employees, four are substantial-service employees with respect to the 
line of business. Because four is 67 percent of six, 80 percent of the 
top-paid employees with respect to the machine tool shop line of 
business are not substantial-service employees with respect to that line 
of business. Therefore the machine tool shop line of business does not 
satisfy the separate management requirement of paragraph (b)(5) of this 
section.
    Example 5. The facts are the same as in Example 4, except that, in 
addition, another of Employer D's lines of business is an automotive 
repair shop, and 80 of Employer D's employees provide at least 25 
percent of their services to that line of business. Employer D combines 
the machine shop line of business with the automotive repair shop line 
of business and treats them as a single line of business. As a result, 
Employer D has three lines of business as determined under 
Sec. 1.414(r)-2. Assume that 150 of Employer D's employees provide more 
than 25 percent of their services to the machine tool shop/automotive 
repair shop line of business within the meaning of paragraph (c)(5) of 
this section. Of the 15 employees who constitute the top 10 percent by 
compensation of these 150 employees, 12 are substantial-service 
employees with respect to that line of business. Because 12 is 80 
percent of 15, at least 80 percent of the top-paid employees with 
respect to the machine tool shop/automotive repair shop line of business 
are substantial-service employees with respect to that line of business. 
Therefore, the machine tool shop/automotive repair shop line of business 
satisfies the separate management requirement of paragraph (b)(5) of 
this section.

    (d) Optional rule for vertically integrated lines of business--(1) 
In general. If two lines of business satisfy the requirements of this 
paragraph (d) with respect to a type of property or service for a 
testing year, the employer is permitted to apply the optional rule in 
this paragraph (d) for the testing year.
    (2) Requirements. Two lines of business satisfy the requirements of 
this paragraph (d) with respect to a type of property or service only 
if--
    (i) One of the lines of business (the upstream line of business) 
provides a type of property or service to the other line of business 
(the downstream line of business);
    (ii) The downstream line of business either--
    (A) Uses, consumes, or substantially modifies the property or 
service in the course of itself providing property or services to 
customers of the employer; or
    (B) Provides the same property or service to customers of the 
employer at a different level in the chain of commercial distribution 
from the upstream line of business (e.g., retail versus wholesale); and
    (iii) The upstream line of business either--
    (A) Provides the same type of property or service to customers of 
the employer, and at least 25 percent of the total number of units of 
the same type of property or service provided by the upstream line of 
business to all persons (including customers of the employer, the 
downstream line of business, and all other lines of business of the 
employer) are provided to customers of the employer by the upstream line 
of business, when measured on a uniform basis; or
    (B) Provides to the downstream line of business property consisting 
primarily of a type of tangible property (i.e., goods, not services) 
that it produces or manufactures, and some entities outside the 
employer's controlled group that are engaged in a similar business as 
the upstream line of business provide the same type of tangible property 
to unrelated customers (i.e., customers outside those entities' 
respective controlled groups).
    (3) Optional rule--(i) Treatment of employees. For purposes of 
determining

[[Page 638]]

the lines of business to which an employee provides services under 
paragraph (c)(5) of this section, an employee is not treated as 
providing services to the downstream line of business if--
    (A) The employee is considered to provide services to the downstream 
line of business under paragraph (c)(5) of this section (applied without 
regard to the optional rule in this paragraph (d)); and
    (B) The employee is so considered solely because the employee's 
services contribute to providing the property or service from the 
upstream line of business to the downstream line of business.
    (ii) Purposes for which optional rule applies. If an employee 
applies the optional rule in this paragraph (d), the treatment specified 
in paragraphs (d)(3)(i) (A) and (B) of this section applies for all the 
following purposes and only for the following purposes--
    (A) The separate employee workforce and separate management 
requirements of paragraphs (b)(4) and (b)(5) of this section;
    (B) The 50-employee requirement of Sec. 1.414(r)-4(b); and
    (C) The determination of the employees of a qualified separate line 
of business under Sec. 1.414(r)-7.
    (4) Examples. The following examples illustrate the application of 
the optional rule in this paragraph (d).

    Example 1. Employer E operates two lines of business as determined 
under Sec. 1.414(r)-2, one engaged in upholstery textile manufacturing 
and the other in furniture manufacturing. During the testing year, the 
upholstery textile line of business provides its entire output of 
upholstery textiles to the furniture line of business. The furniture 
line of business uses the upholstery textiles in the manufacture of 
upholstered furniture for sale to customers of Employer E. The furniture 
line of business thus substantially modifies the upholstery textiles 
provided to it by the upholstery textile line of business in providing 
upholstered furniture products to customers of Employer E. In addition, 
although the upholstery textile line of business does not provide 
upholstery textiles to customers of Employer E, some entities engaged in 
upholstery textile manufacturing provide upholstery textiles to 
customers outside their controlled groups. Under these facts, Employer 
E's two lines of business satisfy the requirements of this paragraph (d) 
with respect to upholstery textiles for the testing year.
    Example 2. Employer B is a multinational controlled group of 
corporations that engages in the exploration, production, refining, and 
marketing of petrochemical products. See Example 10 under paragraph 
(c)(7) of this section. Employer B operates two lines of business as 
determined under Sec. 1.414(r)-(2). The first line of business (``the 
exploration, production, and refining line of business'') provides 
lubricating oil, gasoline, and other petrochemical products to wholesale 
customers of Employee B as well as the second line of business. The 
wholesale customers of Employee B include independent jobbers, 
independent franchisees that operate retail filling stations under 
Employee B's trademark and tradename, as well as chemical and plastics 
manufacturers. The second line of business (the ``retail marketing line 
of business'') provides lubricating oil and gasoline products to retail 
customers of Employee B through filing stations owned and operated by 
Employee B. During the testing year, the exploration, production and 
refining line of business provides 25,000 gallons of lubricating oil, 
100,000 gallons of unleaded and 150,000 gallons of leaded gasoline to 
the retail marketing line of business, and 75,000 gallons of lubricating 
oil, 500,000 gallons of unleaded gasoline and 15,000 gallons of leaded 
gasoline to wholesale customers of Employer B. Thus, the exploration, 
production, and refining line of business provides 75 percent of its 
output of lubricating oil during the testing year to wholesale customers 
of Employer B. In addition, because unleaded and leaded gasoline is the 
same type of property (i.e., gasoline), the exploration, production, and 
refining line of business provides 67 percent of its output of gasoline 
products during the testing year to wholesale customers of Employer B. 
Furthermore, the retail line of business provides lubricating oil and 
gasoline products to customers of Employer B at different levels in the 
chain of commercial distribution than the exploration, production, and 
refining line of business. Under these facts, Employer B's two lines of 
business satisfy the requirements of this paragraph (d) with respect to 
both lubricating oil and gasoline products for the testing year.
    Example 3. The facts are the same as in Example 2. Employer B 
operates a refinery that produces lubricating oil, gasoline, and other 
petrochemical products. Employee V is an operating engineer at the 
refinery who is involved at a stage in the refining process before 
lubricating oil and gasoline products have been separated from other 
types of petrochemical products. Employee V performs no other services 
for Employer B. Absent application of the optional rule in this 
paragraph (d), Employee V would be considered to provide services to 
both of Employer B's

[[Page 639]]

lines of business. See Example 11 under paragraph (c)(7) of this 
section. However, because Employee V's services to the retail marketing 
line of business contribute solely to providing lubricating oil and 
gasoline products from the exploration, production, and refining line of 
business to the retail marketing line of business, under the optional 
rule in paragraph (d)(3)(i) of this section Employee V is not treated as 
providing services to the retail marketing line of business.
    Example 4. The facts are the same as in Example 3. Employee W is a 
petroleum engineer who conducts geological studies of potential future 
drilling sites. Employee W performs no other services for Employer B. 
Absent application of the optional rule in this paragraph (d), Employee 
W would be considered to provide services to both of Employer B's lines 
of business. See Example 12 under paragraph (c)(7) of this Section. 
However, because Employee W's services to the retail marketing line of 
business contribute solely to providing lubricating oil and gasoline 
products from the exploration, production, and refining line of business 
to the retail marketing line of business, under the optional rule in 
paragraph (d)(3)(i) of this section Employee W is not treated as 
providing services to the retail marketing line of business.
    Example 5. The facts are the same as in Example 4. Employee Y is a 
vice president in Employer B's home office. As part of his senior 
management responsibilities, Employee Y helps to set the rate of 
production at Employer B's refineries in the United States and also 
helps to set the price charged at the pump at the retail filling 
stations owned and operated by Employer B in this country. Absent 
application of the optional rule in this paragraph (d), Employee X would 
be considered to provide services to both of Employer B's lines of 
business within the meaning of paragraph (c)(5) of this section for 
purposes of satisfying the separate workforce requirement of paragraph 
(b)(4) of this section. Because Employee X helps to set the price 
charged at the pump by Employer B's retail marketing line of business, 
Employee X's services to the retail marketing line of business are not 
limited to contributing solely to providing lubricating oil and gasoline 
products from the exploration, production, and refining line of business 
to the retail marketing line of business, as required under paragraph 
(d)(3)(i)(B) of this section. Accordingly, even though Employer B's two 
lines of business satisfy the requirements of this paragraph (d) with 
respect to both lubricating oil and gasoline products for the testing 
year, and even though Employer B applies the optional rule in this 
paragraph (d), Employee X is still considered to provide services to 
both of Employer B's lines of business.

[T.D. 8376, 56 FR 63442, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32917, June 27, 1994]



Sec. 1.414(r)-4  Qualified separate line of business--fifty-employee and notice requirements.

    (a) In general. This section sets forth the rules for determining 
whether a separate line of business (as determined under Sec. 1.414(r)-
3) satisfies the 50-employee and notice requirements of Sec. 1.414(r-
1(b)(2)(iv) (B) and (C), respectively.
    (b) Fifty-employee requirement. A separate line of business 
satisfies the 50-employee requirement of Sec. 1.414(r)-1(b)(2)(iv)(B) 
for a testing year only if on each day of the testing year there are at 
least 50 employees who provide services to the separate line of business 
for the testing year and do not provide services to any other separate 
line of business of the employer for the testing year within the meaning 
of Sec. 1.414(r)-3(c)(5). For this purpose, all employees of the 
employer are taken into account (including collectively bargained 
employees), except employees described in Sec. 1.414(q)-1, Q&A-
9(g)(i.e., the same employees, subject to certain modifications, who are 
excluded in determining the number of employees in the top-paid group 
under section 414(q)(4)).
    (c) Notice requirement--(1) General rule. A separate line of 
business satisfies the notice requirement of Sec. 1.414(r)-
1(b)(2)(iv)(C) for a testing year only if the employer notifies the 
Secretary that it treats itself as operating qualified separate lines of 
business for the testing year in accordance with Sec. 1.414(r)-1(b). The 
employer's notice for the testing year must specify each of the 
qualified separate lines of business operated by the employer and the 
section or sections of the Code to be applied on a qualified-separate-
line-of-business basis. See Sec. 1.414(r)-1(c). The employer's notice 
must take the form, must be filed at the time and the place, and must 
contain any additional information prescribed by the Commissioner in 
revenue procedures, notices, or other guidance of general applicability. 
No other notice, whether actual or

[[Page 640]]

constructive, satisfies the requirement of this paragraph (c).
    (2) Effect of notice. Once an employer has provided the notice 
prescribed in this paragraph (c) for a testing year, and the time for 
filing the notice for the testing year has expired without its being 
modified, withdrawn, or revoked, the employer is deemed to have 
irrevocably elected to apply the requirements of the section or sections 
of the Code specified in the notice separately with respect to the 
employees of each qualified separate line of business specified in the 
notice for all plan years that begin in the testing year. The 
Commissioner may, in revenue procedures, notices, or other guidance of 
general applicability, provide for exceptions to the rule in this 
paragraph (c)(2) as well as for the effect that will be given to the 
employer's notice for purposes of any future testing year.

[T.D. 8376, 56 FR 63446, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32919, June 27, 1994]



Sec. 1.414(r)-5  Qualified separate line of business--administrative scrutiny requirement--safe harbors.

    (a) In general. A separate line of business (as determined under 
Sec. 1.414(r)-3 satisfies the administrative scrutiny requirement of 
Sec. 1.414(r)-1(b)(2)(iv)(D) for a testing year if the separate line of 
business satisfies any of the safe harbors in paragraphs (b) through (g) 
of this section for the testing year. The safe harbor in paragraph (b) 
of this section implements the statutory safe harbor of section 
414(r)(3). The safe harbors in paragraphs (c) through (g) of this 
section constitute the guidelines provided for under section 
414(r)(2)(C). A separate line of business that does not satisfy any of 
the safe harbors in this section nonetheless satisfies the requirement 
of administrative scrutiny if the employer requests and receives an 
individual determination from the Commissioner under Sec. 1.414(r)-6 
that the separate line of business satisfies the requirement of 
administrative scrutiny.
    (b) Statutory safe harbor--(1) General rule. A separate line of 
business satisfies the safe harbor in this paragraph (b) for the testing 
year only if the highly compensated employee percentage ratio of the 
separate line of business is--
    (i) At least 50 percent; and
    (ii) Non more than 200 percent.
    (2) Highly compensated employee percentage ratio. For purposes of 
this paragraph (b), the highly compensated employee percentage ratio of 
a separate line of business is the fraction (expressed as a percentage), 
the numerator of which is the percentage of the employees of the 
separate line of business who are highly compensated employees, and the 
denominator of which is the percentage of all employees of the employer 
who are highly compensated employees.
    (3) Employees taken into account. For purposes of this paragraph 
(b), the employees taken into account are the same employees who are 
taken into account for purposes of applying section 410(b) with respect 
to the first testing day. For this purpose, employees described in 
section 410 (b)(3) and (b)(4) are excluded. However, section 410(b)(4) 
is applied with reference to the lowest minimum age requirement 
applicable under any plan of the employer, and with reference to the 
lowest service requirement applicable under any plan of the employer, as 
if all the plans were a single plan under Sec. 1.410(b)-6(b)(2). The 
employees of the separate line of business are determined by applying 
Sec. 1.414(r)-7 to the employees taken into account under this paragraph 
(b)(3). An employee is treated as a highly compensated employee for 
purposes of this paragraph (b) if the employee is treated as a highly 
compensated employee for purposes of applying section 410(b) with 
respect to the first testing day. For the definition of ``first testing 
day,'' see Sec. 1.414(r)-11(b)(7).
    (4) Ten-percent exception. A separate line of business is deemed to 
satisfy paragraph (b)(1)(i) of this section for the testing year if at 
least 10 percent of all highly compensated employees of the employer 
provide services to the separate line of business during the testing 
year and do not provide services to any other separate line of business 
of the employer during the testing year within the meaning of 
Sec. 1.414(r)-3(c)(5).
    (5) Determination based on preceding testing year. A separate line 
of business

[[Page 641]]

that satisfied this safe harbor for the immediately preceding testing 
year (without taking into account the special rule in this paragraph 
(b)(5)) is deemed to satisfy the safe harbor for the current testing 
year. The preceding sentence applies to a separate line of business only 
if the employer designated the same line of business in the immediately 
preceding testing year as in the current testing year and either--
    (i) The highly compensated employee percentage ratio of the separate 
line of business for the current testing year does not deviate by more 
than 10 percent (not 10 percentage points) from the highly compensated 
employee percentage ratio of the separate line of business for the 
immediately preceding testing year; or
    (ii) No more than five percent of the employees of the separate line 
of business for the current testing year were employees of a different 
separate line of business for the immediately preceding testing year, 
and no more than five percent of the employees of the separate line of 
business for the immediately preceding testing year are employees of a 
different separate line of business for the current testing year.
    (6) Examples. The following examples illustrate the application of 
the safe harbor in this paragraph (b).

    Example 1. (i) Employer A operates three separate lines of business 
as determined under Sec. 1.414(r)-3, that respectively consist of a 
railroad, an insurance company, and a newspaper. Employer A employs a 
total of 400 employees, 100 of whom are highly compensated employees. 
Thus, the percentage of all employees of Employer A who are highly 
compensated employees in 25 percent. After applying Sec. 1.414(r)-7, the 
distribution of highly and nonhighly compensated employees among 
Employer A's separate lines of business is as follows:

----------------------------------------------------------------------------------------------------------------
                                                               Employer-                 Insurance              
                                                                  wide       Railroad     company     Newspaper 
----------------------------------------------------------------------------------------------------------------
Number of Employees.........................................          400          100          150          150
Number of HCEs..............................................          100           20           50           30
Number of Non-HCEs..........................................          300           80          100          120
HCE Percentage..............................................          25%          20%          33%          20%
                                                                (100/400)     (20/100)     (50/150)     (30/150)
HCE Percentage Ratio........................................          N/A          80%         133%          80%
                                                              ...........    (20%/25%)    (33%/25%)    (20%/25%)
----------------------------------------------------------------------------------------------------------------

    (ii) Because the highly compensated employee percentage ratio of 
each separate line of business is at least 50 percent and no more than 
200 percent, each of Employer A's separate lines of business satisfies 
the requirements of the safe harbor in this paragraph (b).
    Example 2. (i) Employer B operates three separate lines of business 
as determined under Sec. 1.414(r)-3, that respectively consist of a 
dairy products manufacturer, a candy manufacturer, and a chain of 
housewares stores. Employer B employs a total of 1,000 employees, 100 of 
whom are highly compensated employees. Thus, the percentage of all 
employees of Employer B who are highly compensated employees is 10 
percent. After applying Sec. 1.414(r)-7, the distribution of highly and 
nonhighly compensated employees among Employer B's separate lines of 
business is as follows:

----------------------------------------------------------------------------------------------------------------
                                                               Employer-      Dairy                   Housewares
                                                                  wide       products      Candy        stores  
----------------------------------------------------------------------------------------------------------------
Number of Employees.........................................        1,000          200          500          300
Number of HCEs..............................................          100            5           50           45
Number of Non-HCEs..........................................          900          195          450          255
HCE Percentage..............................................          10%         2.5%          10%          15%
                                                              (100/1,000)      (5/200)     (50/500)     (45/300)
HCE Percentage Ratio........................................          N/A          25%         100%         150%
                                                              ...........   (2.5%/10%)    (10%/10%)    (15%/10%)
----------------------------------------------------------------------------------------------------------------

    (ii) Because the highly compensated employee percentage ratio for 
the dairy products line of business is less than 50 percent, it does not 
satisfy the requirements of the statutory safe harbor in this paragraph 
(b). However, because Employer B's other two separate lines of business 
(candy manufacturing and housewares stores) each has a highly 
compensated employee percentage ratio that is no less than 50 percent 
and no

[[Page 642]]

greater than 200 percent, they each satisfy the statutory safe harbor in 
this paragraph (b).
    Example 3. (i) The facts are the same as in Example 2, except that 
Employer B operates only two separate lines of business as determined 
under Sec. 1.414(r)-3, one consisting of the dairy products manufacturer 
and the candy manufacturer, and the other consisting of the chain of 
housewares stores. After applying Sec. 1.414(r)-7, the distribution of 
highly and nonhighly compensated employees among Employer B's separate 
lines of business is as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                    Candy/Dairy     Housewares  
                                                                   Employer-Wide     Products         Stores    
----------------------------------------------------------------------------------------------------------------
Number of Employees.............................................           1,000             700             300
Number of HCEs..................................................             100              55              45
Number of Non-HCEs..............................................             900             645             255
HCE Percentage..................................................             10%            7.9%             15%
                                                                     (100/1,000)        (55/700)        (45/300)
HCE Percentage Ratio............................................             N/A             79%            150%
                                                                  ..............      (7.9%/10%)       (15%/10%)
----------------------------------------------------------------------------------------------------------------

    (ii) Because the highly compensated employee percentage ratio for 
both of Employer B's separate lines of business is at least 50 percent 
and no more than 200 percent, they each satisfy the requirements of the 
statutory safe harbor in this paragraph (b).
    (c) Safe harbor for separate lines of business in different 
industries--(1) In general. A separate line of business satisfies the 
safe harbor in this paragraph (c) for the testing year if it is in a 
different industry or industries from every other separate line of 
business of the employer. For this purpose, a separate line of business 
is in a different industry or industries from every other separate line 
of business of the employer only if--
    (i) The property or services provided to customers of the employer 
by the separate line of business (as designated by the employer for the 
testing year under Sec. 1.414(r)-2) fall exclusively within one or more 
industry categories established by the Commissioner for purposes of this 
paragraph (c); and
    (ii) None of the property or services provided to customers of the 
employer by any of the employer's other separate lines of business (as 
designated by the employer for the testing year under Sec. 1.414(r)-2) 
falls within the same industry category or categories.
    (2) Optional rule for foreign operations. For purposes of satisfying 
this paragraph (c), an employer is permitted to disregard any property 
or services provided to customers of the employer during the testing 
year by a foreign corporation or foreign partnership (as defined in 
section 7701(a)(5)), to the extent that income from the provision of the 
property or services is not effectively connected with the conduct of 
the trade or business within the United States within the meaning of 
section 864(c). Thus, for example, an employer is permitted to take into 
account only property and services provided to customers of the employer 
by its domestic subsidiaries and property and services provided by its 
foreign subsidiaries that generate income effectively connected with the 
conduct of a trade or business within the United States in determining 
whether the property or services provided to customers of the employer 
by a separate line of business fall exclusively within one or more 
industry categories and also whether the property or services provided 
by any other separate line of business fall within the same industry 
category or categories.
    (3) Establishment of industry categories. The Commissioner shall, by 
revenue procedure or other guidance of general applicability, establish 
industry categories for purposes of this paragraph (c).
    (4) Examples. The following examples illustrate the application of 
the safe harbor in this paragraph (c). For purposes of these examples, 
it is assumed that, pursuant to paragraph (c)(3) of this section, the 
Commissioner has established the following industry categories (among 
others): transportation equipment and services; banking, insurance, and 
finance; machinery and electronics; and entertainment, sports, and 
hotels.


[[Page 643]]


    Example 1. Among its other business activities, Employer C operates 
a commercial airline that constitutes a separate line of business under 
Sec. 1.414(r)-3. In addition, no other separate line of business of 
Employer C provides to customers of Employer C any property or services 
in the transportation equipment and services industry category. Under 
these facts, the separate line of business described in this example 
satisfies the safe harbor in this paragraph (c).
    Example 2. The facts are the same as in Example 1, except that 
Employer C also operates a trucking company that constitutes another 
separate line of business of Employer C under Sec. 1.414(r)-3. Because 
the commercial airline and the trucking company both provide to 
customers of Employer C services in the transportation equipment and 
services industry category, neither separate line of business satisfies 
the safe harbor in this paragraph (c).
    Example 3. Among its other business activities, Employer D operates 
a commercial bank and luxury hotel that together constitute a single 
separate line of business under Sec. 1.414(r)-3. No other separate line 
of business of employer D provides to customers of Employer D property 
or services in either the banking, insurance, or financial industry 
category, or the entertainment, sports, or hotel industry category. 
Under these facts, the separate line of business described in this 
example satisfies the safe harbor in this paragraph (c).
    Example 4. The facts are the same as in Example 3, except that 
Employer D also manufactures computers in the United States and abroad. 
Employer D apportions its computer operations by designating these 
operations between two separate lines of business, one consisting of its 
domestic operations located in the United States and the second 
consisting of its foreign operations by a foreign subsidiary. Because 
both lines of business provide property and services in the machinery 
and electronics industry category to customers of Employer D, neither 
separate line of business would satisfy the safe harbor in this 
paragraph (c). However, pursuant to the optional rule in paragraph 
(c)(2) of his section, Employer D disregards the property and services 
provided by its foreign computer subsidiary. As a result, no other 
separate line of business of Employer D provides to customers of 
Employer D any property or services in the machinery and electronics 
industry category. Under these facts, Employer D's domestic computer 
operations separate line of business satisfies the safe harbor in this 
paragraph (c).

    (d) Safe harbor for separate lines of business that are acquired 
through certain mergers and acquisitions--(1) General rule. A portion of 
the employer that is acquired through a transaction described in section 
410(b)(6)(C) and Sec. 1.410(b)-2(f) (i.e., an asset or stock 
acquisition, merger, or other similar transaction involving a change in 
the employer of the employees of a trade or business) (the ``acquired 
line of business'') satisfies the safe harbor in this paragraph (d) for 
each testing year in the transition period provided in paragraph (d)(3) 
of this section if each of the following requirements is satisfied--
    (i) For each testing year within the transition period the employer 
designates the acquired line of business as a line of business within 
the meaning of Sec. 1.414(r)-2;
    (ii) On the first testing day in each testing year in the transition 
period:
    (A) The acquired line of business constitutes a separate line of 
business within the meaning of Sec. 1.414(r)-3 (taking into account 
Sec. 1.414(r)-1(d)(4));
    (B) No more than 10 percent of the employees who are substantial-
service employees with respect to the acquired line of business were 
substantial-service employees with respect to a different separate line 
of business for the immediately preceding testing year; and
    (C) No more than 10 percent of the employees who were substantial-
service employees with respect to the acquired line of business for the 
immediately preceding testing year are substantial-service employees 
with respect to a different separate line of business in the respective 
testing year.
    (iii) If the transaction described in paragraph (d)(1) of this 
section occurs after the first testing day in a testing year, the 
determinations required by paragraphs (d)(1)(ii) (B) and (C) of this 
section with respect to that testing year are made as of the date of the 
transaction.
    (2) Employees taken into account. For purposes of this paragraph 
(d), the employees taken into account are the same employees who are 
taken into account for purposes of applying section 410(b) with respect 
to the first testing day. For this purpose, employees described in 
section 410(b)(3) and (b)(4) are excluded. However, section 410(b)(4) is 
applied with reference to the lowest minimum age requirement, and with

[[Page 644]]

reference to the lowest service requirement applicable under any plan of 
the employer that benefits employees of the separate line of business, 
as if all the plans were a single plan under Sec. 1.410(b)-6(b)(2). The 
employees of the separate line of business are determined by applying 
Sec. 1.414(r)-7 to the employees taken into account under this paragraph 
(d)(2).
    (3) Transition period. The transition period for purposes of this 
safe harbor is the period that begins with the first testing year 
beginning after the date that the transaction described in paragraph 
(d)(1) of this section occurs. The employer is permitted, but not 
required, to extend the transition period to include one, two, or three 
of the testing years immediately succeeding that first testing year.
    (4) Examples. The following examples illustrate the application of 
the safe harbor in this paragraph (d).

    Example 1. Employer E is treated as operating three qualified 
separate lines of business pursuant to Sec. 1.414(r)-1(b). In 1996, 
Employer E acquires a company that employs 4,000 employees who 
manufacture and sell pharmaceutical supplies, and designates that 
portion as a line of business under Sec. 1.414(r)-2. Under 
Sec. 1.414(r)-1(d)(4), the pharmaceutical supplies line of business is 
deemed to satisfy the requirements to be a qualified separate line of 
business (other than the 50-employee and notice requirements) for 
testing year 1996. In addition, the determination of whether Employer 
E's remaining three lines of business constitute qualified separate 
lines of business for testing year 1996 is made without taking into 
account the acquired employees and by disregarding the property and 
services provided to customers of Employer E by the pharmaceutical 
supplies line of business.
    Example 2. The facts are the same as in Example 1 except that, by 
the first testing day in 1997 (Transition Year 1), there are 300 
additional substantial-service employees with respect to the 
pharmaceutical supplies line of business, increasing the total number to 
4,300. Of those 300 employees, 250 were substantial-service employees 
with respect to a different separate line of business for testing year 
1996 and 50 are new hires. Assume that, on the first testing day in 
Transition Year 1, the pharmaceutical supplies line of business 
satisfies the requirements of Sec. 1.414(r)-3 (taking into account 
Sec. 1.414(r)-1(d)(4)) and therefore constitutes a separate line of 
business. Because 250 is 6 percent of 4,300, no more than ten percent of 
the employees who are substantial-service employees with respect to the 
pharmaceutical supplies line of business were substantial- service 
employees with respect to a different separate line of business for the 
immediately preceding testing year. The 50 newly hired employees are 
disregarded in making this determination. Under these facts, the 
pharmaceutical supplies separate line of business satisfies the safe 
harbor in this paragraph (d) for Transition Year 1.
    Example 3. The facts are the same as in Example 2, except that, 
before the first day of the next testing year (``Transition Year 2''), 
Employer E permanently transfers 200 of the 4,300 employees who were 
substantial-service employees with respect to the pharmaceutical line of 
business on the first testing day in Transition Year 1 to a different 
line of business and does not hire any additional employees for the 
pharmaceutical supplies line of business. Therefore, by the first 
testing day in Transition Year 2, the number of employees who are 
substantial-service employees with respect to the pharmaceutical line of 
business of Employer E has decreased from 4,300 to 4,100. Assume that, 
on that first testing day in Transition Year 2, the pharmaceutical 
supplies line of business constitutes a separate line of business within 
the meaning of Sec. 1.414(r)-3. Because 200 is approximately 5 percent 
of 4,300, no more than 10 percent of the employees who were substantial-
service employees of the pharmaceutical line of business for Transition 
Year 1 are not substantial-service employees of the pharmaceutical line 
of business in Transition Year 2. Under these facts, the pharmaceutical 
supplies separate line of business continues to satisfy the safe harbor 
in this paragraph (d) for Transition Year 2.

    (e) Safe harbor for separate lines of business reported as industry 
segments--(1) In general. A separate line of business satisfies the safe 
harbor in this paragraph (e) for the testing year if, for the employer's 
fiscal year ending latest in the testing year, the separate line of 
business is reported as one or more industry segments on its annual 
report required to be filed in conformity with either--
    (i) Form 10-K, annual Report Pursuant to Section 13 or 15(d) of the 
Securities Exchange Act of 1934 (``Form 10-K''); or
    (ii) Form 20-F, Annual Report Pursuant to Section 13(a) or 15(d) of 
the Securities Exchange Act of 1934 with Item 18 financials (``Form 20-
F''), and the employer timely files either the Form 10-K or Form 20-F 
with the Securities and Exchange Commission (``SEC'').

[[Page 645]]

    (2) Reported as an industry segment in conformity with Form 10-K or 
Form 20-F. For purposes of this paragraph (e), a separate line of 
business is reported as one or more industry segments in conformity with 
either Form 10-K or Form 20-F only if--
    (i) The separate line of business consists of one or more industry 
segments within the meaning of paragraphs 10(a), 11(b), and 12 through 
14 of the Statement of Financial Accounting Standards No. 14, Financial 
Reporting for Segments of a Business Enterprise (``FAS 14''); and
    (ii) The property or services provided to customers of the employer 
by the separate line of business (as designated by the employer for the 
testing year under Sec. 1.414(r)-2) is identical to the property or 
services provided to customers of the employer by the industry segment 
or segments (as determined under paragraphs 10(a), 11(b), and 12 through 
14 of FAS 14).
    (3) Timely filing of Form 10-K or Form 20-F. For purposes of this 
paragraph (e), a Form 10-K of Form 20-F is timely filed with the SEC if 
it is filed within the required period as provided under 17 CFR 240.12b-
25(b)(2)(ii). Therefore, the required period for timely filing of the 
Form 10-K is the 90-day period after the end of the fiscal year covered 
by the annual report (including the 15-day extension), and the required 
period for timely filing of the Form 20-F is the 6-month period after 
the end of the fiscal year covered by the annual report (including the 
15-day extension).
    (4) Examples. The following examples illustrate the application of 
the safe harbor in this paragraph (e).

    Example 1. Among its other business activities, Employer F operates 
a bearing manufacturing firm that constitutes a separate line of 
business under Sec. 1.414(r)-3. Employer F is required to file an annual 
Form 10-K with the SEC. On its timely filed Form 10-K, Employer F 
reports its bearing manufacturing operations as an industry segment in 
accordance of FAS 14 (as determined under paragraphs 10(a), 11(b), and 
12 through 14 of FAS 14). The group of bearing products provided by the 
separate line of business (as designated by Employer F under 
Sec. 1.414(r)-2) is identical to the group of bearing products provided 
by the industry segment (as determined under paragraphs 10(a), 11(b), 
and 12 through 14 of FAS 14). Under these facts, the separate line of 
business described in this example satisfies the safe harbor in this 
paragraph (e).
    Example 2. The facts are the same as in Example 1, except that 
Employer F has apportioned its bearing manufacturing operations between 
two separate lines of business as determined under Sec. 1.414(r)-3, one 
engaged in the manufacture of bearings for use in the automotive 
industry, and a second engaged in the manufacture of bearings for use in 
the aerospace industry. Because neither separate line of business 
provides a group of property or services to customers of Employer F that 
is identical to the group of bearing products provided by the industry 
segment reported on Employer F's annual Form 10-K, neither separate line 
of business described in this example satisfies the safe harbor in this 
paragraph (e).

    (f) Safe harbor for separate lines of business that provide the same 
average benefits as other separate lines of business--(1) General rule. 
A separate line of business satisfies the safe harbor in this paragraph 
(f) for the testing year only if the level of benefits provided to 
employees of the separate line of business satisfies paragraph (f)(2) or 
(f)(3) of this section, whichever is applicable.
    (2) Separate lines of business with a disproportionate number of 
nonhighly compensated employees--(i) Applicability of safe harbor. This 
paragraph (f)(2) applies to a separate line of business that for the 
testing year has a highly compensated employee percentage ratio of less 
than 50 percent (as determined under paragraph (b)(2) of this section).
    (ii) Requirement. A separate line of business satisfies this 
paragraph (f)(2) only if the actual benefit percentage of the group of 
nonhighly compensated employees of the separate line of business for the 
testing period that ends with or within the testing year is at least as 
great as the actual benefit percentage of the group of all other 
nonhighly compensated employees of the employer for the same testing 
period. See Sec. 1.410 (b)-5(c) and (d)(3)(ii) for the definitions of 
actual benefit percentage and testing period, respectively. In 
determining actual benefit percentages for purposes of this paragraph 
(f)(2)(ii), the special rule in Sec. 1.410(b)-5(e)(3) (permitting an 
employer to determine employee benefit percentages separately for 
defined contribution and defined benefit plans) may not be used.

[[Page 646]]

    (3) Separate lines of business with a disproportionate number of 
highly compensated employees--(i) Applicability of safe harbor. This 
paragraph (f)(3) applies to a separate line of business that for the 
testing year has a highly compensated employee percentage ratio of more 
than 200 percent (as determined under paragraph (b)(2) of this section).
    (ii) Requirement. A separate line of business satisfies this 
paragraph (f)(3) only if the actual benefit percentage of the group of 
highly compensated employees of the separate line of business for the 
testing period that ends with or within the testing year is no greater 
than the actual benefit percentage of the group of all other highly 
compensated employees of the employer for the same testing period. See 
Sec. 1.410 (b)-5(c) and (d)(3)(ii) for the definitions of actual benefit 
percentage and testing period, respectively. In determining actual 
benefit percentages for purposes of this paragraph (f)(3)(ii), the 
special rule in Sec. 1.410(b)-5(e)(3) (permitting an employer to 
determine employee benefit percentages separately for defined 
contribution and defined benefit plans) may not be used.
    (4) Employees taken into account. An employee of a separate line of 
business (as determined under Sec. 1.414(r)-7 is taken into account for 
a testing period for purposes of this paragraph (f) only if the employee 
is an employee of the separate line of business on the first testing 
day, and would not be an excludable employee for purposes of applying 
the average benefit percentage test of Sec. 1.410(b)-5 to a plan for a 
plan year included in that testing period. In determining whether an 
employee is an excludable employee for purposes of the average benefit 
percentage test, the employer is assumed not to be operating qualified 
separate lines of business under Sec. 1.414(r)-1(b). An employee is 
treated as a highly compensated employee for purposes of this paragraph 
(f) if the employee is treated as a highly compensated employee for 
purposes of applying section 410(b) on the first testing day. See 
Sec. 1.414(r)-11(b)(7) for the definition of ``first testing day''.
    (5) Example. The rules of this paragraph (f) are illustrated by the 
following example.

    Example. (i) Employer G is treated as operating two separate lines 
of business, Line 1 and Line 2, in accordance with Sec. 1.414(r)-1(b). 
Employer G maintains three qualified plans. Plan A is a calendar-year 
profit-sharing plan that benefits all employees of Employer G. Plan B is 
a defined benefit plan with a plan year ending March 31 that benefits 
all employees of Line 1. Plan C is a defined benefit plan with a plan 
year ending November 30 that benefits all employees of Line 2.
    (ii) In 1995, Line 1 has a highly compensated employee percentage 
ratio of 25 percent. Employer G's first testing day is March 31. After 
applying the rules of Sec. 1.414(r)-7, the nonhighly compensated 
employees of Line 1 and Line 2 on March 31, 1995, are N1-N80 and N81-
N100, respectively. N1 is an excludable employee under Sec. 1.410(b)-6 
for purposes of the average benefit percentage test during the testing 
period that includes the plan years of Plans A, B, and C that end in 
1995 (the ``1995 testing period''), and would therefore not be taken 
into account in determining whether any of those plans satisfied the 
average benefit percentage test of Sec. 1.410(b)-5 for plan years 
included in that testing period, because N1 does not satisfy the minimum 
age and service conditions under any plan of the employer. All other 
employees of Line 1 and Line 2 on March 31, 1995 are nonexcludable 
employees for purposes of the average benefit percentage test during the 
1995 testing period.
    (iii) In order for Line 1 to satisfy the requirements of this 
paragraph (f) for 1995, the actual benefit percentage of N2-N80 for the 
1995 testing period under Plans A, B and C must be at least as great as 
the actual benefit percentage of N81-N100 for the same testing period 
under the same plans. N1 is not taken into account because N1 is an 
excludable employees for purposes of the average benefit percentage test 
for the 1995 testing period. Any other employees who were taken into 
account for purposes of the average benefit percentage test for the 1995 
testing period are excluded because they are not employees of Line 1 or 
Line 2 on March 31, 1995.

    (g) Safe harbor for separate lines of business that provide minimum 
or maximum benefits. --(1) In general. A separate line of business 
satisfied the safe harbor in this paragraph (g) for the testing only if 
the level of benefits provided to employees of the separate line of 
business satisfies paragraph (g)(2) or (g)(3) of this section, whichever 
is applicable. For this purpose, the level of benefits is determined 
with respect to all qualified plans of the employer that benefit 
employees of the separate line of business for plan years that begin in 
the testing year.

[[Page 647]]

    (2) Minimum benefit required--(i) Applicability. This paragraph 
(g)(2) applies to a separate line of business that for the test year has 
a highly compensated employee percentage ratio of less than 50 percent 
(as determined under paragraph (b)(2) of this section).
    (ii) Requirement. A separate line of business satisfies this 
paragraph (g)(2) only if one of the following requirements is 
satisfied--
    (A) At least 80 percent of all nonhighly compensated employees of 
the separate line of business either accrue a benefit for the plan year 
that equals or exceeds the defined benefit minimum in paragraph 
(g)(2)(iii) of this section, receive all allocation for the plan year 
that equal or exceeds the defined contribution minimum in paragraph 
(g)(2)(iv) of this section, or accrue a benefit and receive an 
allocation that together equal or exceed the combined plan minimum in 
paragraph (g)(4) of this section. The defined benefit minimum must be 
provided in a defined plan, and the defined contribution minimum must be 
provided in a defined contribution plan.
    (B) The separate line of business would satisfy the requirements of 
paragraph (g)(2)(ii)(A) of this section if the 80 percent threshold were 
reduced to 60 percent, and the average of the accrual rates or 
allocation rates of all nonhighly compensated employees in the separate 
line of business equals or exceeds the minimum amount described for each 
individual employee in paragraph (g)(2)(ii)(A) of this section.
    (iii) Defined benefit minimum--(A) In general. The defined benefit 
minimum for a plan year is the employer-derived accrual that would 
result in a normal accrual rate for the plan year equal to 0.75 percent 
of compensation. For purposes of this paragraph (g)(2)(iii), the normal 
accrual rate is the percentage (not less than 0) determined by 
subtracting the employee's normalized accrued benefit as of the end of 
the prior plan year (expressed as a percentage of average annual 
compensation as of the end of the prior plan year) from the employee's 
normalized accrued benefit as of the end of the plan year (expressed as 
a percentage of average annual compensation as of the end of the plan 
year).
    (B) Normal form and equivalent benefits. The benefit that is tested 
for purposes of this paragraph (g)(2)(iii) is the accrued retirement 
benefit commencing at normal retirement age. If the normal form of 
benefit for a plan being tested is other than a straight life annuity 
beginning at a normal retirement age of 65, the benefit must be 
normalized (within the meaning of Sec. 1.401(a)(4)-12) to a straight 
life annuity commencing at age 65. No adjustment is permitted for early 
retirement benefits or for any ancillary benefit, including disability 
benefits.
    (C) Compensation definition. The underlying definition of 
compensation used for purposes of determining accrual rates under this 
paragraph (g)(2)(iii) must be a definition of compensation that 
automatically satisfies section 414(s) without a test for 
nondiscrimination (see Sec. 1.414(s)-1(c)).
    (D) Average compensation requirement. For purposes of determining 
accrual rates, compensation must be average annual compensation within 
the meaning of Sec. 1.401(a)(4)-3(e)(2) determined using a five-year 
averaging period. The compensation history to be taken into account are 
all years beginning with the first year in which the employee benefits 
under the plan, and ending with the last plan year in which the employee 
participates in the plan. However, a plan may disregard in a reasonable 
and consistent manner: years before the effective date of these 
regulations as set forth in Sec. 1.414(r)-1(d)(9)(i), years more than 10 
years preceding the current plan year, and years for which the employer 
does not use this paragraph (g)(2) to satisfy this safe harbor with 
respect to the separate line of business. If a plan provides a defined 
benefit minimum that uses three consecutive years (in lieu of five) for 
calculating average annual compensation, the 0.75 percent annual accrual 
in paragraph (g)(2)(iii)(A) of this section is multiplied by 93.3 
percent, resulting in a normal accrual rate equal to 0.70 percent. If a 
plan provides a defined benefit minimum that uses more than five 
consecutive years for calculating average annual compensation or the 
plan is an accumulation plan as defined in Sec. 1.401(a)(4)-12, the 0.75 
percent annual accrual rate in paragraph

[[Page 648]]

(g)(2)(iii)(A) of this section is multiplied by 133.3 percent, resulting 
in a normal accrual rate equal to 1.0 percent.
    (E) Special rules. The special rules of Sec. 1.401(a)(4)-3(f) apply 
for purposes of determining whether a benefit accrual satisfies the 
minimum benefit requirement. For example, benefits may be determined on 
other than a plan year basis as permitted by Sec. 1.401(a)(4)-3(f)(6). A 
plan described in section 412(i) may be used to provide the defined 
benefit minimum described in this paragraph (g)(2). In such case, the 
rules in Sec. 1.416-1, M-17, apply to such a plan. For purposes of this 
paragraph (g)(2)(iii) an employee is treated as accruing a benefit equal 
to the minimum benefit in paragraph (g)(2)(iii)(A) of this section if 
the reason that the employee does not accrue such a benefit is either--
    (1) The application of a plan provision that applies uniformly to 
all employees in the plan and limits the service used for purposes of 
benefit accrual to a specified maximum no less than 25 years, or
    (2) The employee has attained normal retirement age and fails to 
accrue a benefit solely because of the provisions of section 
411(b)(1)(H)(iii) regarding adjustments for delayed retirement.
    (iv) Defined contribution minimum--(A) In general. The defined 
contribution minimum for a plan year is an allocation that results in an 
allocation rate for the plan year (within the meaning of 
Sec. 1.401(a)(4)-2(c)) equal to three percent of an employee's plan year 
compensation. Plan year compensation must be based on a definition of 
compensation that automatically satisfies section 414(s) without a test 
for nondiscrimination (see Sec. 1.414(s)-1(c)). For this purpose, 
allocations that are taken into account to do not include matching 
contributions described in Sec. 1.401(m)-1(f)(12), elective 
contributions described in Sec. 1.401(k)-1(g)(3), any adjustment in 
allocation rates permitted under section 401(l) or imputed disparity 
under Sec. 1.401(a)(4)-7.
    (B) Modified allocation definition for averaging. For purposes of 
determining whether the average allocation rates for all nonhighly 
compensated employees of the separate line of business satisfy the 
minimum benefit requirement in paragraph (g)(2)(ii)(B) of this section, 
matching contributions described in Sec. 1.401(m)-1(f)(12) are treated 
as employer allocations.
    (3) Maximum benefit permitted--(i) Applicability. This paragraph 
(g)(3) applies to a separate line of business that for the testing year 
has a highly compensated employee percentage ratio that exceeds 200 
percent (as determined under paragraph (b)(2) of this section).
    (ii) Requirement. A separate line of business satisfies this 
paragraph (g)(3) only if one of the following requirements is 
satisfied--
    (A) No highly compensated employee of the separate line of business 
accrues a benefit for the plan year that results in an accrual rate that 
exceeds the defined benefit maximum in paragraph (g)(3)(iii) of this 
section, receives an allocation that exceeds the defined contribution 
maximum in paragraph (g)(3)(iv) of this section, or accrues a benefit 
and receives an allocation that together exceed the combined plan 
maximum in paragraph (g)(4) of this section. All benefits provided by 
qualified defined benefit plans are subject to the defined benefit 
maximum, and all benefits provided by qualified defined contribution 
plans are subject to the defined contribution maximum.
    (B) The average of the accrual rates or allocation rates of all 
highly compensated employees of the separate line of business is no more 
than 80 percent of the maximum amount described for any individual 
employee in paragraph (g)(3)(ii)(A) of this section.
    (iii) Defined benefit maximum--(A) In general. The defined benefit 
maximum is the employer-derived accrued benefit that would result from 
calculating a normal accrual rate equal to 2.5 percent of compensation.
    (B) Determination of defined benefit maximum. The accrual rate used 
for the defined benefit maximum is determined in the same manner as the 
normal accrual rate used for the defined benefit minimum is determined 
under paragraph (g)(2)(iii) of this section, except as provided below. 
Thus, a defined benefit plan may provide, in addition to the defined 
benefit maximum, any benefit the value of which is not taken into 
account under paragraph (g)(2)(iii) of this section. For example, a plan

[[Page 649]]

may provide qualified disability benefits described in section 411(a)(9) 
or ancillary benefits described in Sec. 1.401(a)(4)-4(e)(2).
    (C) Adjustment for different compensation definitions. If a plan 
subject to the defined benefit maximum determines accrual rates by using 
three consecutive years (in lieu of five) for purposes of determining 
average annual compensation, the 2.5 percent annual accrual rate in 
paragraph (g)(3)(iii)(B) of this section is multiplied by 93.3 percent, 
resulting in a maximum accrual rate equal to 2.33 percent. Compensation 
may be less inclusive than the compensation described in paragraph 
(g)(2)(iii)(C) of this section. However, no adjustment is made to the 
maximum normal accrual rate because of the use of a definition of 
compensation that is less inclusive than the compensation described in 
paragraph (g)(2)(iii)(C) of this section. In addition, no adjustment is 
made to the maximum normal accrual rate because the plan uses more than 
five consecutive years for calculating average annual compensation or 
the plan is an accumulation plan as defined in Sec. 1.401(a)(4)-12.
    (D) Adjustment for certain subsidies. If the plan provides 
subsidized optional forms of benefit, the accrual rate for purposes of 
this paragraph (g)(3) must be determined by taking those subsidies into 
account. An optional form of benefit is considered subsidized if the 
normalized optional form of benefit is larger than the normalized normal 
retirement benefit under the plan. In the case of a plan with subsidized 
optional forms, the determination of accrual rate for the plan year 
under paragraph (g)(2)(iii)(A) of this section is the percentage (not 
less than 0) determined by subtracting the largest of the sums of the 
employee's normalized QJSAs and QSUPPs determined for each age under 
Sec. 1.401(a)(4)-3(d)(1)(ii) as of the end of the prior plan year 
(expressed as a percentage of average annual compensation as of the end 
of the prior plan year) from the largest of the sums of the employee's 
normalized QJSAs and QSUPPs determined for each age under 
Sec. 1.401(a)(4)-3(d)(1)(ii) as of the end of the plan year (expressed 
as a percentage of average annual compensation as of the end of the plan 
year).
    (iv) Defined contribution maximum. The defined contribution maximum 
is an allocation that results in an allocation rate for the plan year 
(within the meaning of Sec. 1.401(a)(4)-2(c)) equal to 10 percent of an 
employee's plan year compensation. Compensation may be less inclusive 
than the compensation described in paragraph (g)(2)(iv)(A) of this 
section. However, no adjustment is made to the defined contribution 
maximum because of the use of a definition of compensation that is less 
inclusive than the compensation described in paragraph (g)(2)(iv)(A) of 
this section. For this purpose, allocations that are taken into account 
do not include elective contributions described in Sec. 1.401(K)-
1(g)(3), any adjustment in allocation rates permitted under section 
401(l) or imputed disparity under Sec. 1.401(a)(4)-7 but do include 
employer matching contributions under Sec. 1.401(m)-1(f)(12).
    (4) Duplication of benefits or contributions--(i) Plans of the same 
type. In the case of an employee who benefits under more than one 
defined benefit plan, the defined benefit minimum required or the 
defined benefit maximum permitted under this paragraph (g) is determined 
by reference to the employee's aggregate employer-provided benefit under 
all qualified defined benefit plans of the employer. In the case of an 
employee who benefits under more than one defined contribution plan, the 
defined contribution minimum required or the defined contribution 
maximum permitted under this paragraph (g) is determined by reference to 
the employee's aggregate employer-provided allocations under all 
qualified defined contribution plans of the employer.
    (ii) Plans of different types. In the case of an employee who 
benefits under both a defined benefit plan and a defined contribution 
plan, a percentage of the minimum benefit required or the maximum 
benefit permitted under this paragraph (g) may be provided in each type 
of plan as long as the combined percentage equals at least 100 percent 
in the case of the minimum benefit required and does not exceed 100 
percent in the case of the maximum benefit

[[Page 650]]

permitted. Thus, for example, if a highly compensated employee benefits 
under both types of plans and accrues an aggregate adjusted normal 
accrual rate equal to 1.25 percent of average annual compensation under 
all defined benefit plans of the employer (i.e, 50 percent of the 
defined benefit maximum described in paragraph (g)(3)(iii) of this 
section), in order to comply with the maximum benefit safe harbor, the 
employee may not receive an aggregate allocation under all defined 
contribution plans of the employer in excess of five percent of plan 
year compensation (i.e., 50 percent of the defined contribution maximum 
described in paragraph (g)(3)(iv) of this section).
    (iii) Special rule for floor-offset arrangements. In the case of a 
floor-offset arrangement (as described in Sec. 1.401(a)(4)-8(d)), the 
minimum or maximum benefit rules are applied to each plan as if the 
other plan did not exist. Thus, the defined benefit plan must provide at 
least 100 percent of the defined benefit minimum (or no more than 100 
percent of the defined benefit maximum) based on the gross benefit prior 
to offset, and the defined contribution plan must provide at least 100 
percent of the defined contribution minimum (or no more than 100 percent 
of the defined contribution maximum).
    (5) Certain contingency provisions ignored. For purposes of this 
paragraph (g), an employee's accrual or allocation rate is determined 
without regard to any minimum benefit or any maximum benefit limitation 
that is applicable to the employee only if the separate line of business 
fails otherwise to satisfy the requirement of administrative scrutiny.
    (6) Employees taken into account. For purposes of this paragraph 
(g), an employee is taken into account if the employee is taken into 
account for purposes of applying section 410(b) with respect to any 
testing day for the testing year. For this purpose, employees described 
in section 410 (b)(3) and (b)(4) are excluded. However, section 
410(b)(4) is applied with reference to the lowest minimum age 
requirement applicable, and with reference to the lowest service 
requirement applicable under any plan of the employer that benefits 
employees of the separate line of business, as if all the plans were a 
single plan under Sec. 1.410(b)-6(b)(2). For purposes of the minimum 
benefit requirement of paragraph (g)(2) of this section, section 
410(b)(4) may be applied with reference to the lowest minimum age 
requirement, and with reference to the lowest minimum service 
requirement, applicable under any plan of the employer that benefits 
highly compensated employees of the separate line of business, as if all 
the plans were a single plan under Sec. 1.410(b)-6(b)(2), or, if no plan 
of the employer benefits highly compensated employees of the separate 
line of business, with reference to the greatest age and service 
requirements permitted under section 410(a)(1)(A). The employees of the 
separate line of business are determined by applying Sec. 1.414(r)-7 to 
the employees taken into account under this paragraph (g)(6). An 
employee is treated as a highly compensated employee for purposes of 
this paragraph (g) if the employee is treated as a highly compensated 
employee for purposes of applying section 410(b) on any testing day for 
the testing year. For the definition of ``testing day,'' see 
Sec. 1.414(r)-11(b)(6).

[T.D. 8376, 56 FR 63446, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32919, June 27, 1994]



Sec. 1.414(r)-6  Qualified separate line of business--administrative scrutiny requirement--individual determinations.

    (a) In general. A separate line of business (as determined under 
Sec. 1.414(r)-3) that does not satisfy any of the safe harbors in 
Sec. 1.414(r)-5 for a testing year nonetheless satisfies the 
administrative scrutiny requirement of Sec. 1.414(r)-1(b)(2)(iv)(D) if 
the employer requests and receives from the Commissioner an individual 
determination under this section that the separate line of business 
satisfies the requirement of administrative scrutiny for the testing 
year. This section implements the individual determinations provided for 
under section 414(r)(2)(C). The Commissioner shall issue such an 
individual determination only when it is consistent with the purpose of 
section 414(r), taking into account the nondiscrimination requirements 
of sections 401(a)(4) and 410(b). Paragraph (b) of this section

[[Page 651]]

authorizes the Commissioner to establish procedures for requesting and 
granting individual determinations.
    (b) Authority to establish procedures. The Commissioner may, in 
revenue rulings and procedures, notices, and other guidance, published 
in the Internal Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this 
chapter), provide any additional guidance that may be necessary or 
appropriate for requesting and granting individual determinations under 
this section. For example, such guidance may specify the circumstances 
in which an employer may request an individual determination and factors 
to be taken into account in deciding whether to grant a favorable 
individual determination. In addition, such guidance may describe 
situations that automatically fail the administrative scrutiny 
requirement.

[T.D. 8376, 56 FR 63452, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32920, June 27, 1994]



Sec. 1.414(r)-7  Determination of the employees of an employer's qualified separate lines of business.

    (a) Introduction--(1) In general. This section provides the rules 
for determining the employees of each qualified separate line of 
business operated by an employer. Paragraph (a)(2) of this section lists 
the specific provisions of the regulations for which these rules apply. 
Paragraph (b) of this section provides the procedure for assigning the 
employees of the employer among the qualified separate lines of business 
of the employer and for determining the day or days on which such 
assignments must be made. Under this procedure, each employee (i.e., a 
substantial-service employee or a residual shared employee as defined in 
Sec. 1.414(r)-11(b)(2) and (4)) is assigned to a single qualified 
separate line of business in a consistent manner for all purposes listed 
in paragraph (a)(2) of this section with respect to the testing year and 
plan years beginning within the testing year. Paragraph (c) of this 
section provides methods for allocating residual shared employees among 
qualified separate lines of business.
    (2) Purposes for which this section applies. This section applies 
solely for purposes of determining whether--
    (i) A separate line of business satisfies the statutory safe harbor 
of Sec. 1.414(r)-5(b) for a testing year (see Sec. 1.414(r)-5(b)(3) for 
the employees taken into account for this purpose);
    (ii) A separate line of business satisfies the merger and 
acquisition safe harbor of Sec. 1.414(r)-5(d) for a testing year (see 
Sec. 1.414(r)-5(d)(2) for the employees taken into account for this 
purpose);
    (iii) A separate line of business satisfies the average benefits 
safe harbor of Sec. 414(r)-5(f) for a testing year (see Sec. 414(r)-
5(f)(4) for the employees taken into account for this purpose);
    (iv) A separate line of business satisfies the minimum or maximum 
benefits safe harbor of Sec. 414(r)-5(g) for a testing year (see 
Sec. 1.414(r)-5(g)(6) for the employees taken into account for this 
purpose);
    (v) A plan of the employer satisfies sections 410(b) and 401(a)(4) 
for a plan year (see Sec. 414(r)-8(d)(3) for the employees taken into 
account for this purpose); or
    (vi) A plan of the employer satisfies section 401(a)(26) for a plan 
year (see Sec. 414(r)-9(c)(3) for the employees taken into account for 
this purpose).
    (b) Assignment procedure--(1) In general. To apply the provisions 
listed in paragraph (a)(2) of this section with respect to a testing 
year or plan year, as the case may be, each of the employees taken into 
account under that provision must be assigned to a qualified separate 
line of business of the employer on one or more testing days (or section 
401(a)(26) testing days) during the year. The first day for which this 
assignment procedure is required for a testing year is the first testing 
day. See Sec. 414(r)-11(b)(6), (7) and (8) (definitions of ``testing 
day'', ``first testing day'' and ``section 401(a)(26) testing day''). 
Section Sec. 414(r)-8 may require that the assignment procedure be 
repeated for testing days that fall after the first testing day 
(including testing days that fall after the close of the testing year in 
a plan year that begins in the testing year). Accordingly, new employees 
may be taken into account for the first time on these later testing days 
who were not taken into account on the first testing day. Section 
Sec. 414(r)-9 may have the same effect with

[[Page 652]]

respect to section 401(a)(26) testing days that fall after the first 
testing day.
    (2) Assignment for the first testing day. The employees taken into 
account under a provision described in paragraph (a)(2) of this section 
with respect to the first testing day for a testing year are assigned 
among the employer's qualified separate lines of business by applying 
the following procedure to each of those employees--
    (i) An employee who is a substantial-service employee with respect 
to a qualified separate line of business within the meaning of 
Sec. 414(r)-11(b)(2) must be assigned to that qualified separate line of 
business;
    (ii) An employee who is a residual shared employee within the 
meaning of Sec. 414(r)-11(b)(4) must be assigned to a qualified separate 
line of business under paragraph (c) of this section.

Each employee assigned to a qualified separate line of business under 
paragraph (b)(2)(i) of this section or this paragraph (b)(2)(ii) remains 
assigned to the same qualified separate line of business for all 
purposes with respect to the testing year listed in paragraph (a)(2) of 
this section and for all plan years beginning in that testing year. Once 
an employee is assigned to a qualified separate line of business with 
respect to a particular testing day or section 401(a)(26) testing day, 
that employee remains assigned to that qualified separate line of 
business after the employee terminates employment. However, after the 
employee terminates employment, that employee will in most cases not be 
taken into account with respect to a subsequent testing day or section 
401(a)(26) testing day for purposes of applying one or more of the 
provisions in paragraph (a)(2) of this section.
    (3) Assignment of new employees for subsequent testing days. After 
the first testing day for the testing year, the employees taken into 
account under a provision described in paragraph (a)(2) of this section 
with respect to a subsequent testing day (or a section 401(a)(26) 
testing day) for the testing year may include one or more employees who 
previously have not been assigned to a qualified separate line of 
business for any purpose listed in paragraph (a)(2) of this section with 
respect to the testing year. An employee may not previously have been 
assigned to a qualified separate line of business for any purpose with 
respect to the testing year if, for example, the employee has just been 
hired or has just become a nonexcludable employee. Previously unassigned 
employees are assigned among the employer's qualified separate lines of 
business by applying the procedure in paragraph (b)(2) of this section 
to those employees. In determining whether an employee who is not 
employed by the employer during the testing year is a substantial-
service or a residual shared employee with respect to a qualified 
separate line of business, Sec. 414(r)-3(c)(5) is applied with reference 
to services performed by the employee during a period in the immediately 
succeeding testing year that are reasonably representative of the 
employee's services for the employer.
    (4) Special rule for employers using annual option under section 
410(b). Notwithstanding the fact that paragraphs (b)(1) through (b)(3) 
of this section generally only require employees to be assigned on 
testing days beginning with the first testing day, if a plan is tested 
under section 410(b) using the annual option of Sec. 410(b)-8(a)(4) 
(including for purposes of the average benefit percentage test), 
employees must be assigned on every day of the plan year of that plan 
for purposes of this paragraph (b). Thus, all employees who provide 
services at any time during the plan year of a plan that is tested using 
the annual option of Sec. 1.410(b)-8(a)(4) must be assigned to a line of 
business even if they terminate employment before the first testing day 
within the meaning of Sec. 414(r)-11(b)(7) of the testing year in which 
the plan year begins.
    (c) Assignment and allocation of residual shared employees--(1)In 
general. All residual shared employees must be allocated among an 
employer's qualified separate lines of business under one of the 
allocation methods provided in paragraphs (c)(2) through (5) of this 
section. An employer is permitted to select which method of allocation 
to apply for the testing year to residual shared employees. However, the 
same allocation method must be used for all

[[Page 653]]

of the employer's residual shared employees and for all purposes listed 
in paragraph (a)(2) of this section with respect to the testing year.
    (2) Dominant line of business method of allocation--(i) In general. 
Under the method of allocation in this paragraph (c)(2), all residual 
shared employees are allocated to the employer's dominant line of 
business. This method does not apply unless the employer has a dominant 
line of business within the meaning of paragraph (c)(2)(ii) or 
(c)(2)(iv) of this section. If an employer has more than one dominant 
line of business under this paragraph (c), the employer must select 
which qualified separate lines of business is its dominant line of 
business.
    (ii) Dominant line of business. An employer's dominant line of 
business is that qualified separate line of business that has an 
employee assignment percentage of at least 50 percent.
    (iii) Employee assignment percentage--(A) Determination of 
percentage. The employee assignment percentage of a qualified separate 
line of business is the fraction (expressed as a percentage)--
    (1) The numerator of which is the number of substantial-service 
employees with respect to the qualified separate line of business who 
are assigned to that line of business under paragraph (b) of this 
section; and
    (2) The denominator of which is the total number of substantial-
service employees who are assigned to all qualified separate lines of 
business of the employer under paragraph (b) of this section.
    (B) Employees taken into account. The employee assignment percentage 
is calculated solely with respect to employees who are taken into 
account for purposes of satisfying section 410(b) with respect to the 
first testing day. Therefore, this percentage is calculated only once 
for all purposes with respect to a testing year. The employees described 
in section 410(b)(3) and (4) are excluded. However, section 410(b)(4) is 
applied with reference to the lowest minimum age requirement applicable 
under any plan of the employer, and with reference to the lowest service 
requirement applicable under any plan of the employer, as if all the 
plans were a single plan under Sec. 1.410(b)-6(b)(2).
    (iv) Option to apply reduced percentage. An employer is permitted to 
determine whether it has a dominant line of business by substituting 25 
percent for 50 percent in paragraph (c)(2)(ii) of this section. This 
option is available for a testing year only if the qualified separate 
line of business satisfies one of the following requirements:
    (A) The qualified separate line of business accounts for at least 60 
percent of the employer's gross revenues for the employer's latest 
fiscal year ending in the testing year.
    (B) The employee assignment percentage of the qualified separate 
line of business would be at least 60 percent if collectively bargained 
employees were taken into account.
    (C) Each qualified separate line of business of the employer 
satisfies the statutory safe harbor of Sec. 1.414(r)-5(b), the average 
benefits safe harbor of Sec. 1.414(r)-5(f), or the minimum or maximum 
benefits safe harbor of Sec. 1.414(r)-5(g). Whether a qualified separate 
line of business satisfies one of these safe harbors is determined after 
the application of this section, including the assignment of all 
residual shared employees under this paragraph (c)(2).
    (D) The employee assignment percentage of the qualified separate 
line of business is at least twice the employee assignment percentages 
of each of the employer's other qualified separate lines of business.
    (v) Examples. The following examples illustrate the application of 
the method of allocation in this paragraph (c)(2).

    Example 1. (i) Employer A operates four qualified separate lines of 
business as determined under Sec. 1.414(r)-1(b) for the testing year, 
consisting of a software developer, a health food products supplier, a 
real estate developer, and a ski equipment manufacturer. In applying 
this section for the first testing day with respect to the testing year, 
Employer A determines that it has a total of 21,000 employees, of whom 
10,000 are substantial-service employees not excludable under section 
410(b)(3) or (b)(4). Pursuant to paragraph (b) of this section, these 
10,000 employees are assigned among Employer A's qualified separate 
lines of business as follows:

[[Page 654]]



----------------------------------------------------------------------------------------------------------------
                                                                Software                                 Ski    
                                                               developer   Health food  Real estate   equipment 
----------------------------------------------------------------------------------------------------------------
Substantial-Service Employees...............................        2,500        1,000        2,500        4,000
Percentage Assigned to QSLOB................................          25%          10%          25%          40%
----------------------------------------------------------------------------------------------------------------

    (ii) Under these facts, Employer A is not permitted to apply the 
method of allocation in paragraph (c)(2)(ii) of this section, because 
none of its qualified separate lines of business satisfies the 50 
percent requirement in paragraph (c)(3)(ii) of this section.
    Example 2. The facts are the same as in Example 1, except that, 
after allocating all residual shared employees to the ski equipment line 
of business, the software, ski equipment and health food supplier lines 
of business each would satisfy the statutory safe harbor of 
Sec. 1.414(r)-5(b), and that the real estate development line of 
business would satisfy the minimum or maximum benefits safe harbor of 
Sec. 1.414(r)-5(g). Under these facts, Employer A is permitted to apply 
the method of allocation in this paragraph (c)(2) to allocate all its 
residual shared employees to the ski equipment line of business, because 
the employee assignment percentage of the ski equipment line of business 
exceeds 25 percent and each qualified separate line of business 
satisfies either the statutory safe harbor of Sec. 1.414(r)-5(b) or the 
minimum or maximum benefits safe harbor of Sec. 1.414(r)-5(g).
    Example 3. (i) The facts are the same as in Example 1, except that, 
Employer A chooses not to satisfy the minimum or maximum benefits safe 
harbor of Sec. 1.414(r)-5(g). Instead, Employer A combines the real 
estate developer and ski equipment manufacturer into a single line of 
business. As a result, Employer A has three qualified separate lines of 
business as determined under Sec. 1.414(r)-1(b). Assume that no residual 
shared employee becomes a substantial-service employee as a result of 
the new combination. Employer A's substantial-service employees are 
assigned among Employer A's qualified separate lines of business as 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                    Real estate/
                                                                          Software     Health food       ski    
                                                                          developer                   equipment 
----------------------------------------------------------------------------------------------------------------
Substantial-Service Employees.........................................         2,500         1,000         6,500
Percentage Assigned to QSLOB..........................................           25%           10%           65%
----------------------------------------------------------------------------------------------------------------

    (ii) Under these facts, Employer A is permitted to apply the method 
of allocation in this paragraph (c)(2) to allocate all its residual 
shared employees to the combined real estate development and ski 
equipment manufacturing line of business, because more than 50 percent 
of Employer A's substantial-service employees that are taken into 
account for the first testing day are assigned to that qualified 
separate line of business.
    Example 4. (i) The facts are the same as in Example 1, except that, 
of the remaining 11,000 employees of Employer A, 10,000 employees are 
substantial-service employees who are collectively bargained employees. 
Pursuant to paragraph (b) of this section, the 10,000 substantial-
service employees and the 10,000 substantial-service employees who are 
collectively bargained employees are assigned among Employer A's 
qualified separate lines of business as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Software                                     Ski    
                                                            developer    Health food   Real estate    equipment 
----------------------------------------------------------------------------------------------------------------
Substantial-Service Employees...........................         2,500         1,000         2,500         4,000
Percentage of total substantial-service employees                                                               
 assigned to QSLOB......................................           25%           10%           25%           40%
Substantial-Service Employees (including collectively                                                           
 bargained employees)...................................         2,500         1,000         2,500        14,000
Percentage of total employees (including collectively                                                           
 bargained employees) assigned to QSLOB.................         12.5%            5%         12.5%           70%
----------------------------------------------------------------------------------------------------------------

    (ii) Thus, the ski equipment line of business satisfies the 25-
percent threshold in paragraph (c)(2)(iv) of this section. In addition, 
the ski equipment's percentage of substantial-service employees is at 
least 60 percent when taking into account substantial-service employees 
who are collectively bargained employees and therefore satisfies the 
requirement under paragraph (c)(2)(iv)(B) of this section. Under these 
facts, Employer A is permitted to apply the method of allocation in this 
paragraph (c)(2) to allocate all

[[Page 655]]

its residual shared employees to the ski equipment line of business.

    (3) Pro-rata method of allocation--(i) In general. Under the method 
of allocation in this paragraph (c)(3), all residual shared employees 
are allocated among an employer's qualified separate lines of business 
in proportion to the employee assignment percentage of each qualified 
separate line of business, as determined under paragraph (c)(2)(iii) of 
this section.
    (ii) Allocation procedure. The procedure for allocating residual 
shared employees under the method in this paragraph (c)(3) is as 
follows--
    (A) The number of highly compensated residual shared employees who 
are allocated to each qualified separate line of business is equal to 
the product determined by multiplying the total number of highly 
compensated residual shared employees of the employer by the employee 
assignment percentage determined with respect to the qualified separate 
line of business under paragraph (c)(3)(i) of this section;
    (B) The number of nonhighly compensated residual shared employees 
who are allocated to each qualified separate line of business is equal 
to the product determined by multiplying the total number of nonhighly 
compensated residual shared employees of the employer by the employee 
assignment percentage determined with respect to the qualified separate 
line of business under paragraph (c)(3)(i) of this section;
    (C) For purposes of this procedure, the employer is permitted to 
determine which highly compensated residual shares employees and which 
nonhighly compensated residual shared employees are allocated to each 
qualified separate line of business, provided that the required number 
of highly and nonhighly compensated residual shared employees are 
allocated to each qualified separate line of business.
    (iii) Examples. The following example illustrates the application of 
the method of allocation in this paragraph (c)(4).

    Example 1. The facts that are the same as in Example 1 under 
paragraph (c)(2)(v) of this section except that there are no additional 
residual shared employees after the first testing day. Of Employer A's 
1,000 residual shared employees, 800 are highly compensated employees 
and 200 are nonhighly compensated employees. Employer A applies the pro-
rata method of allocation in this paragraph (c)(3). Under these facts, 
the 1,000 residual shared employees are allocated among Employer A's 
qualified separate lines of business as follows:

----------------------------------------------------------------------------------------------------------------
                                                     Software                                                   
                                                     developer      Health food     Real estate    Ski equipment
----------------------------------------------------------------------------------------------------------------
Substantial-Service Employees...................           2,500           1,000           2,500           4,000
Percentage Assigned to QSLOB (``employee                                                                        
 assignment percentage'').......................             25%             10%             25%             40%
Residual Shared HCEs............................             200              80             200             320
Allocated to QSLOB..............................       (25%X800)       (10%X800)       (25%X800)       (40%X200)
Residual Shared NHCEs...........................              50              20              50              80
Allocated to QSLOB..............................       (25%X200)       (10%X200)       (25%X200)       (40%X200)
----------------------------------------------------------------------------------------------------------------

    (4) HCE percentage ratio method of allocation--(i) In general. Under 
the method of allocation in this paragraph (c)(4), all residual shared 
employees are allocated among an employer's qualified separate lines of 
business according to the highly compensated employee percentage 
assignment ratio of each qualified separate line of business.
    (ii) Highly compensated employee percentage assignment ratio. For 
purposes of this paragraph (c)(4), the highly compensated employee 
percentage assignment ratio of a qualified separate line of business is 
the fraction expressed as a percentage)--
    (A) The numerator of which is the percentage of all employees who 
have previously been assigned to the qualified separate line of business 
under this section with respect to the testing year who are highly 
compensated employees; and
    (B) The denominator of which is the percentage of all employees who 
have previously been assigned to any qualified separate line of business 
under this section with respect to the testing year

[[Page 656]]

who are highly compensated employees.

Thus, the highly compensated employee percentage assignment ratio of 
each of the employer's qualified separate lines of business is 
recalculated each time a residual shared employee is allocated to a 
qualified separate line of business under this paragraph (c)(5).
    (iii) Allocation procedure. The procedure for allocating all 
residual shared employees under the method in this paragraph (c)(4) is 
as follows--
    (A) If there are any qualified separate lines of business with a 
highly compensated employee percentage assignment ratio of less than 50 
percent (as determined immediately before the employee is allocated to a 
qualified separate line of business), the highly compensated residual 
shared employee must be allocated to one of these qualified separate 
lines of business;
    (B) If there are any qualified separate lines of business with a 
highly compensated employee percentage assignment ratio of greater than 
200 percent (as determined immediately before the employee is allocated 
to a qualified separate line of business), the nonhighly compensated 
residual shared employee must be allocated to one of these qualified 
separate lines of business;
    (C) If there are no qualified separate lines of business with a 
highly compensated employee percentage assignment ratio less than 50 
percent, a highly compensated residual shared employee may be allocated 
to any qualified separate line of business with a highly compensated 
employee percentage assignment ratio of no more than 200 percent, 
provided that the employee's allocation to the qualified separate line 
of business does not cause its highly compensated employee percentage 
assignment ratio to exceed 200 percent (as determined immediately after 
the employee is allocated to the qualified separate line of business);
    (D) If there are no qualified separate lines of business with a 
highly compensated employee percentage assignment ratio greater than 200 
percent, a nonhighly compensated residual shared employee may be 
allocated to any qualified separate line of business with a highly 
compensated employee percentage assignment ratio of no less than 50 
percent, provided that the employee's allocation to the qualified 
separate line of business does not cause its highly compensated employee 
percentage assignment ratio to fall below 50 percent (as determined 
immediately after the employee is allocated to the qualified separate 
line of business);
    (E) For purposes of this procedure, the employer is permitted to 
determine which highly compensated residual shared employees and which 
nonhighly compensated residual shared employees are allocated to each 
qualified separate line of business, provided that the requirements of 
this paragraph (c)(4)(iii) are satisfied.
    (5) Small group method--(i) In general. Under the method of 
allocation provided for in this paragraph (c)(5), each residual shared 
employee is allocated to a qualified separate line of business chosen by 
the employer. This method does not apply unless all of the requirements 
of paragraphs (c)(5)(ii), (iii), and (iv) of this section are satisfied.
    (ii) Size of group. The total number of the employer's residual 
shared employees allocated under this paragraph (c) must not exceed 
three percent of all of the employer's employees. For this purpose, the 
employer's employees include only those employees taken into account 
under paragraph (c)(2)(iii)(B) of this section.
    (iii) Composition of qualified separate line of business. The 
qualified separate line of business to which the residual shared 
employee is allocated must have an employee assignment percentage under 
paragraph (c)(2)(iii) of this section of at least ten percent. In 
addition, the qualified separate line of business to which the residual 
shared employee is allocated must satisfy the statutory safe harbor 
under Sec. 1.414(r)-5(b) after the employee is so allocated.
    (iv) Reasonable allocation. The allocation of residual shared 
employees under the small group method provided for in this paragraph 
(c)(5) must be reasonable. Reasonable allocations generally include 
allocations that are based on the level of services that the residual 
shared employees provide to the employer's qualified separate lines of 
business, the similar treatment of

[[Page 657]]

similarly situated residual shared employees, and other bona fide 
business criteria; in contrast, an allocation that is designed to 
maximize benefits for select employees is not considered a reasonable 
allocation. For example, allocation of all residual shared employees who 
work in the same department, or at the same location, to the same 
qualified separate line of business would be an indication of 
reasonableness. However, allocation of a group of similarly situated 
residual shared employees to a qualified separate line of business for 
which they provide minimal services might not be considered reasonable. 
In addition, the allocation of the professional employees of a 
department to one qualified separate line of business and the allocation 
of the support staff of the same department to a different qualified 
separate line of business would not be reasonable.

[T.D. 8376, 56 FR 63453, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32920, June 27, 1994]



Sec. 1.414(r)-8  Separate application of section 410(b).

    (a) General rule. If an employer is treated as operating qualified 
separate lines of business for purposes of section 410(b) in accordance 
with Sec. 1.414(r)-1(b) for a testing year, the requirements of section 
410(b) must be applied in accordance with this section separately with 
respect to the employees of each qualified separate line of business for 
purposes of testing all plans of the employer for plan years that begin 
in the testing year (other than a plan tested under the special rule for 
employer-wide plans in Sec. 1.414(r)-(c)(2)(ii) for such a plan year). 
Conversely, if an employer is not treated as operating qualified 
separate lines of business for purposes of section 410(b) in accordance 
with Sec. 1.414(r)-1(b) for a testing year, the requirements of section 
410(b) must be applied on an employer-wide basis for purposes of testing 
all plans of the employer for plan years that begin in the testing year. 
See Sec. 1.414(r)-1(c)(2) and (d)(6). Paragraph (b) of this section 
explains how the requirements of section 410(b) are applied separately 
with respect to the employees of a qualified separate line of business 
for purposes of testing a plan. Paragraph (c) of this section explains 
the coordination between sections 410(b) and 401(a)(4). Paragraph (d) of 
this section provides certain supplementary rules necessary for the 
application of this section.
    (b) Rules of separate application--(1) In general. If the 
requirements of section 410(b) are applied separately with respect to 
the employees of each qualified separate line of business operated by 
the employer for a testing year, a plan (other than a plan that is 
tested under the special rule for employer-wide plans in Sec. 1.414(r)-
1(c)(2)(ii) for a plan year) satisfies the requirements of section 
410(b) only if--
    (i) The plan satisfies section 410(b)(5)(B) of an employer-wide 
basis; and
    (ii) The plan satisfies section 410(b) on a qualified-separate-line-
of-business basis.
    (2) Satisfaction of section 410(b)(5)(B) on an employer-wide basis--
(i) General rule. Section 410(b)(5)(B) provides that a plan is not 
permitted to be tested separately with respect to the employees of a 
qualified separate line of business unless the plan benefits a 
classification of employees found by the Secretary to be 
nondiscriminatory. A plan satisfies this requirement only if the plan 
satisfies either the ratio percentage test of Sec. 1.410(b)-2(b)(2) or 
the nondiscriminatory classification test of Sec. 1.410(b)-4 (without 
regard to the average benefit percentage test of Sec. 1.410(b)-5), 
taking into account the other applicable provisions of Secs. 1.410(b)-1 
through 1.410(b)-10. For this purpose, the nonexcludable employees of 
the employer taken into account in testing the plan under section 410(b) 
are determined under Sec. 1.410(b)-6, without regard to the exclusion in 
Sec. 1.410(b)-6(e) for employees of other qualified separate lines of 
business of the employer. Thus, in testing a plan separately with 
respect to the employees of one qualified separate line of business 
under this paragraph (b)(2), the otherwise nonexcludable employees of 
the employer's other qualified separate lines of business are not 
treated as excludable employees. However, under the definition of 
``plan'' in paragraph (d)(2) of this section, these employees are not 
treated as benefiting under the plan for purposes of applying this 
paragraph (b)(2).

[[Page 658]]

    (ii) Application of facts and circumstances requirements under 
nondiscriminatory classification test. The fact that an employer has 
satisfied the qualified-separate-line-of-business requirements in 
Secs. 1.414(r)-1 through 1.414(r)-7 is taken into account in determining 
whether a classification of employees benefiting under a plan that falls 
between the safe and unsafe harbors satisfies Sec. 1.410(b)-4(c)(3) 
(facts and circumstances requirements). Except in unusual circumstances, 
this fact will be determinative.
    (iii) Modification of unsafe harbor percentage for plans satisfying 
ratio percentage test at 90 percent level--(A) General rule. If a plan 
benefits a group of employees for a plan year that would satisfy the 
ratio percentage test of Sec. 1.410(b)-2(b)(2) on a qualified-separate-
line-of-business basis under paragraph (b)(3) of this section if the 
percentage in Sec. 1.410(b)-2(b)(2) were increased to 90 percent, the 
unsafe harbor percentage in Sec. 1.410(b)-4(c)(4)(ii) for the plan is 
reduced by five percentage points (not five percent) for the plan year 
and is applied without regard to the requirement that the unsafe harbor 
percentage not be less than 20 percent. Thus, if the requirements of 
this paragraph (b)(2)(iii)(A) are satisfied, the unsafe harbor 
percentage in Sec. 1.410(b)-4(c)(4)(ii) is treated as 35 percent, 
reduced by \3/4\ of a percentage point for each whole percentage point 
by which the nonhighly compensated employee concentration percentage 
exceeds 60 percent.
    (B) Facts and circumstances alternative. If a plan satisfies the 
requirements of paragraph (b)(2)(iii)(A) of this section, but has a 
ratio percentage on an employer-wide basis that falls below the unsafe 
harbor percentage determined under paragraph (b)(2)(iii)(A) of this 
section, the plan nonetheless is deemed to satisfy section 410(b)(5)(B) 
on an employer-wide basis if the Commissioner determines that, on the 
basis of all of the relevant facts and circumstances, the plan benefits 
such employees as qualify under a classification of employees that does 
not discriminate in favor of highly compensated employees.
    (3) Satisfaction of section 410(b) on a qualified-separate-line-of-
business basis. A plan satisfies section 410(b) on a qualified-separate-
line-of-business basis only if the plan satisfies either the ratio 
percentage test of Sec. 1.410(b)-2(b)(2) or the average benefit test of 
Sec. 1.410(b)-2(b)(3) (including the nondiscriminatory classification 
test of Sec. 1.410(b)-4 and the average benefit percentage test of 
Sec. 1.410(b)-5), taking into account the other applicable provisions of 
Secs. 1.410(b)-1 through 1.410(b)-10. For this purpose, the non-
excludable employees of the employer taken into account in testing the 
plan under section 40(b) are determined under Sec. 1.410(b)-6, taking 
into account the exclusion in Sec. 1.410(b)-6(e) for employees of other 
qualified separate lines of business of the employer. Thus, in testing a 
plan separately with respect to the employees of one qualified separate 
line of business under this paragraph (b)(3), all employees of the 
employer's other qualified separate lines of business are treated as 
excludable employees.
    (4) Examples. The following examples illustrate the application of 
this paragraph (b).

    Example 1. (i) Employer A is treated as operating qualified separate 
lines of business for purposes of section 410(b) in accordance with 
Sec. 1.414(r)-1(b) for the 1994 testing year with respect to all of its 
plans. Employer A operates two qualified separate lines of business as 
determined under Sec. 1.414(r)-1(b)(2), Line 1 and Line 2. Employer A 
maintains only two plans, Plan X which benefits solely employees of Line 
1, and Plan Y which benefits solely employees of Line 2. In testing Plan 
X under section 410(b) with respect to the first testing day for the 
plan year of Plan X beginning in the 1994 testing year, it is determined 
that Employer A has 2,100 nonexcludable employees, of whom 100 are 
highly compensated employees and 2,000 are nonhighly compensated 
employees. After applying Sec. 1.414(r)-7 to these employees, 50 of the 
highly compensated employees and 100 of the nonhighly compensated 
employees are treated as employees of Line 2, and the remaining 50 
highly compensated employees and the remaining 1,900 nonhighly 
compensated employees are treated as employees of Line 1.
    (ii) All of the highly compensated employees and 1,300 of the 
nonhighly compensated employees who are treated as employees of Line 1 
benefit under Plan X. Thus, on an employer-wide basis, Plan X benefits 
50 percent of all Employer A's highly compensated employees (50 out of 
100) and 65 percent of all Employer A's nonhighly compensated employees 
(1,300 out of 2,000). Plan X consequently has a ratio percentage 
determined

[[Page 659]]

on an employer-wide basis of 130 percent (65%50%), see 
Sec. 1.410(b)-9, and could satisfy section 410(b) under the ratio 
percentage test of Sec. 1.410(b)-2(b)(2) if that section were applied on 
an employer-wide basis without regard to the provisions of this 
paragraph (b). Under paragraph (a) of this section, however, the 
requirements of section 410(b) must be applied separately with respect 
to the employees of each qualified separate line of business operated by 
Employer A for all plans of Employer A for plan years that begin in the 
1994 testing year. This rule does not apply to plans tested under the 
special rule for employer-wide plans in Sec. 1.414(r)-1(c)(2)(ii). Plan 
X benefits only 65 percent of the nonhighly compensated employees of 
Employer A, however, and therefore cannot satisfy the 70 percent 
requirement necessary to be tested under that rule. As a result, for the 
plan year of Plan X beginning in the 1994 testing year, Plan X is not 
permitted to satisfy section 410(b) on an employer-wide basis and, 
instead, is only permitted to satisfy section 410(b) separately with 
respect to the employees of each qualified separate line of business 
operated by Employer A, in accordance with paragraphs (b)(2) and (b)(3) 
of this section.
    Example 2. The facts are the same as in Example 1. All of the 50 
highly compensated employees treated as employees of Line 2 benefit 
under Plan Y, and 80 of the 100 nonhighly compensated employees treated 
as employees of Line 2 benefit under Plan Y. Thus, Plan Y benefits 50 
percent of all Employer A's highly compensated employees (50 out of 100) 
and only 4 percent of all Employer A's nonhighly compensated employees 
(80 out of 2,000). Thus, while Plan Y has a ratio percentage of 80 
percent (80%100%) on a qualified-separate-line-of-business 
basis, it has a ratio percentage of only 8 percent (4%50%) on an 
employer-wide basis. See Sec. 1.410(b)-9. Under Sec. 1.410(b)-
4(c)(4)(iii), the nonhighly compensated employee concentration 
percentage is 2,000/2,100 or 95 percent. Because 8 percent is less than 
20 percent (the unsafe harbor percentage applicable to Employer A under 
Sec. 1.410(b)-4(c)(4)(ii)), Plan Y does not satisfy the 
nondiscriminatory classification test of Sec. 1.410(b)-4 on an employer-
wide basis. Nor does Plan Y satisfy the ratio percentage test of 
Sec. 1.410(b)-2(b)(2) on an employer-wide basis, since 8 percent is less 
than 70 percent. Under these facts, Plan Y does not satisfy section 
410(b)(5)(B) on an employer-wide basis in accordance with paragraph 
(b)(2) of this section for the plan year of Plan Y beginning in the 1994 
testing year, and therefore fails to satisfy section 410(b) for that 
year. This is true even though Plan Y satisfies section 410(b) on a 
qualified-separate-line-of-business basis in accordance with paragraph 
(b)(3) of this section.
    Example 3. The facts are the same as in Example 2, except that all 
of the employees treated as employees of Line 2 benefit under Plan Y. 
Thus, Plan Y benefits 50 percent of all of Employer A's highly 
compensated employees (50 out of 100) and 5 percent of all of Employer 
A's nonhighly compensated employees (100 out of 2,000). Plan Y therefore 
has a ratio percentage of 100 percent (100%100%) on a qualified-
separate-line-of-business basis and a ratio percentage of 10 percent 
(5%50%) on an employer-wide basis. Because Plan Y has a ratio 
percentage of at least 90 percent on a qualified-separate-line-of-
business basis, a reduced unsafe harbor percentage applies to Plan Y 
under paragraph (b)(2)(iii)(A) of this section. The reduced unsafe 
harbor percentage applicable to Plan Y is 8.75 percent because Employer 
A's nonhighly compensated employee concentration percentage is 95 
percent. Plan Y's employer-wide ratio percentage of 10 percent therefore 
exceeds the unsafe harbor percentage. Plan Y thus satisfies section 
410(b)(5)(B) on an employer-wide basis in accordance with paragraph 
(b)(2) of this section for the plan year of Plan Y beginning in the 1994 
testing year. Plan Y also satisfies section 410(b) on a qualified-
separate-line-of-business basis in accordance with paragraph (b)(3) of 
this section.
    Example 4. The facts are the same as in Example 3, except that 
Employer A's total nonexcludable nonhighly compensated employees are 
2,500 (rather than 2,000), of whom 100 are treated as employees of Line 
2 and of whom 90 benefit under Plan Y. Plan Y has a ratio percentage of 
90 percent (90%100%) on a qualified-separate-line-of-business 
basis, and Employer A's nonhighly compensated employee concentration 
percentage is 2,500/2,600 or 96 percent. Thus, the reduced unsafe harbor 
percentage applicable to Plan Y under paragraph (b)(2)(iii)(A) of this 
section is 8 percent. Plan Y benefits 50 percent of all of Employer A's 
highly compensated employees (50 out of 100) and 3.6 percent of all of 
Employer A's nonhighly compensated employees (90 out of 2,500). Plan Y 
therefore has a ratio percentage of only 7.2 percent (3.6%50%) 
on an employer-wide basis, which falls below the reduced unsafe harbor 
percentage of 8 percent. Nonetheless, under paragraph (b)(2)(iii)(B) of 
this section, Plan Y will be deemed to satisfy section 410(b)(5)(B) on 
an employer-wide basis if the Commissioner determines that, on the basis 
of all of the relevant facts and circumstances, the plan benefits such 
employees as qualify under a classification of employees that does not 
discriminate in favor of highly compensated employees.
    Example 5. (i) The facts are the same as in Example 1, except that 
Plan X benefits only 950 of the employees of Line 1. Assume Plan X 
satisfies the reasonable classification requirement of Sec. 1.410(b)-
4(b) on an employer-wide basis. Plan X benefits 50 percent of all 
Employer A's highly compensated employees

[[Page 660]]

(50 out 100) and 47.5 percent of all Employer A's nonhighly compensated 
employees (950 out of 2,000). Plan X consequently has a ratio percentage 
determined on an employer-wide basis of 95 percent (47.5%50%), 
see Sec. 1.410(b)-9, and thus satisfies section 410(b)(5)(B) on an 
employer-wide basis.
    (ii) Plan X has a ratio percentage determined on a qualified-
separate-line-of-business basis of 50 percent (50%  100%). 
Because 50 percent is less than 70 percent, Plan X must satisfy the 
nondiscriminatory classification test of Sec. 1.410(b)-4 and the average 
benefit percentage test of Sec. 1.410(b)-5 on a qualified-separate-line-
of-business basis in order to satisfy the other requirements of section 
410(b). Plan X satisfies the nondiscriminatory classification 
requirement of Sec. 1.410(b)-4(c) on a qualified-separate-line-of-
business because its ratio percentage determined on a qualified-
separate-line-of-business basis is more than 22.25 percent, the safe 
harbor percentage applicable to Line 1 under Sec. 1.410(b)-4(c)(4)(i). 
Because Plan X satisfies the reasonable classification requirement of 
Sec. 1.410(b)-4(b) on an employer-wide basis, it is also deemed to 
satisfy this requirement on a qualified-separate-line-of-business basis. 
See Sec. 1.410(b)-7(c)(5). In determining whether Plan X satisfies the 
average benefit percentage test of Sec. 1.410(b)-5, only Plan X and only 
employees of Line 1 are taken into account. See Secs. 1.410(b)-6(e) and 
1.410(b)-7(e).
    Example 6. The facts are the same as in Example 2, except that, 
prior to the 1994 testing year, Employer A merges Plan X and Plan Y so 
that they form a single plan within the meaning of section 414(l). Under 
the definition of ``plan'' in paragraph (d)(2) of this section, however, 
the portion of the newly merged plan that benefits employees of Line 2 
(former Plan Y) is still treated as a separate plan from the portion of 
the newly merged plan that benefits employees of Line 1 (former Plan X). 
The portion of the newly merged plan that benefits employees of Line 2 
(former Plan Y) fails to satisfy section 410(b) for the reasons stated 
in Example 2. Under these facts, because the portion of the newly merged 
plan that benefits employees of Line 2 fails to satisfy section 410(b), 
the entire newly merged plan fails to satisfy section 410(b) for the 
plan year of the newly merged plan that begins in the 1994 testing year. 
See paragraph (d)(5) of this section.

    (c) Coordination of section 401(a)(4) with section 410(b)--(1) 
General rule. For purposes of these regulations, the requirements of 
section 410(b) encompass the requirements of section 401(a)(4) 
(including, but not limited to, the permitted disparity rules of section 
401(l), the actual deferral percentage test of section 401(k)(3), and 
the actual contribution percentage test of section 401(m)(2)). 
Therefore, if the requirements of section 410(b) are applied separately 
with respect to the employees of each qualified separate line of 
business of an employer for purposes of testing one or more plans of the 
employer for plan years that begin in a testing year, the requirements 
of section 401(a)(4) must also be applied separately with respect to the 
employees of the same qualified separate lines of business for purposes 
of testing the same plans for the same plan years. Furthermore, if 
section 401(a)(4) requires that a group of employees under the plan 
satisfy section 410(b) for purposes of satisfying section 401(a)(4), 
section 410(b) must be applied for this purpose in the same manner 
provided in paragraph (b) of this section. See, for example, 
Secs. 1.401(a)(4)-2(c)(1) and 1.401(a)(4)-3(c)(1) (requiring each rate 
group of employees under a plan to satisfy section 410(b)), 
Sec. 1.401(a)(4)-4(b) (requiring the group of employees to whom each 
benefit, right, or feature is currently available under a plan to 
satisfy section 410(b)), and Sec. 1.401(a)(4)-9(c)(1) (requiring the 
group of employees included in each component plan into which a plan is 
restructured to satisfy section 410(b)). Thus, the group of employees 
must satisfy section 410(b)(5)(B) on an employer-wide basis in 
accordance with paragraph (b)(2) of this section and also must satisfy 
section 410(b) on a qualified-separate-line-of-business basis in 
accordance with paragraph (b)(3) of this section, in both cases as if 
the group of employees were the only employees benefiting under the 
plan.
    (2) Examples. The following examples illustrate the application of 
the rule in this paragraph (c).

    Example 1. Employer B is treated as operating qualified separate 
lines of business for purposes of section 410(b) in accordance with 
Sec. 1.414(r)-1(b) for the 1993 testing year. Employer B operates two 
qualified separate lines of business as determined under Sec. 1.414(r)-
1(b)(2), Line 1 and Line 2. Employer B maintains Plan Z, which benefits 
employees in both Line 1 and Line 2. Under the definition of ``plan'' in 
paragraph (d)(2) of this section, the portion of Plan Z that benefits 
employees of Line 1 is treated as a separate plan from the portion of 
Plan Z that benefits employees of Line 2. Under this paragraph

[[Page 661]]

(c), this result applies for purposes of both section 410(b) and section 
401(a)(4).
    Example 2. The facts are the same as in Example 1, except that Plan 
Z benefits solely employees of Line 1. In testing Plan Z under section 
401(a)(4) for the plan year of Plan Z beginning in the 1993 testing 
year, Employer B restructures Plan Z into several component plans 
(within the meaning of Sec. 1.401(a)(4)-9(c)). Under Sec. 1.401(a)(4)-
9(c)(1), each of these component plans is required to satisfy section 
410(b). This paragraph (c) requires that each of the component plans be 
tested separately with respect to the employees of each qualified 
separate line of business operated by Employer B. This testing must be 
done in accordance with paragraph (b) of this section. Consequently, 
each component plan must satisfy section 410(b)(5)(B) on an employer-
wide basis in accordance with paragraph (b)(2) of this section and must 
also satisfy section 410(b) on a qualified-separate-line-of-business 
basis in accordance with paragraph (b)(3) of this section.
    Example 3. The facts are the same as in Example 1, except that Plan 
Z is a profit-sharing plan, and contributions to Plan Z are made 
pursuant to cash or deferred arrangement in which all employees of 
Employer B are eligible to participate. Assume that, as a result, Plan Z 
satisfies the requirements to be tested under the special rule for 
employer-wide plans in Sec. 1.414(r)-1(c)(2)(ii). Under these facts, the 
requirements of sections 410(b), 401(a)(4) and 401(k), including the 
actual deferral percentage test of section 401(k)(3) and Sec. 1.401(k)-
1(b), would generally be required to be applied separately to the 
portions of Plan Z that benefit the employees of Line 1 and Line 2, 
respectively. However, if Plan Z is tested under the special rule in 
Sec. 1.414(r)-1(c)(2)(ii), these requirements must be applied on an 
employer-wide basis.

    (d) Supplementary rules--(1) In general. This paragraph (d) provides 
certain supplementary rules necessary for the application of this 
section.
    (2) Definition of plan. For purposes of this section, the term plan 
means a plan within the meaning of Sec. 1.410(b)-7(a) and (b), after 
application of the mandatory disaggregation rules of Sec. 1.410(b)-7(c) 
(including the mandatory disaggregation rule for portions of a plan that 
benefit employees of different qualified separate lines of business) and 
the permissive aggregation rules of Sec. 1.410(b)-7(d). Thus, for 
purposes of this section, the portion of a plan that benefits employees 
of one qualified separate line of business is treated as a separate plan 
from the other portions of the same plan that benefit employees of other 
qualified separate lines of business of the employer, unless the plan is 
tested under the special rule for employer-wide plans in Sec. 1.414(r)-
1(c)(2)(ii) for the plan year.
    (3) Employees of a qualified separate line of business. For purposes 
of applying paragraph (b) of this section with respect to a testing day, 
the employees of each qualified separate line of business of the 
employer are determined by applying Sec. 1.414(r)-7 to the employees of 
the employer otherwise taken into account under section 410(b) for the 
testing day. For purposes of applying paragraph (c) of this section with 
respect to a testing day, the employees of each qualified separate line 
of business of the employer are determined by applying Sec. 1.414(r)-7 
to the employees of the employer otherwise taken into account under 
section 410(a)(4) for the testing day. For the definition of testing 
day, see Sec. 1.414(r)-11(b)(6).
    (4) Consequences of failure. If a plan fails to satisfy either 
paragraph (b)(2), (b)(3), or (c)(1) of this section, the plan (and any 
plan of which it constitutes a portion) fails to satisfy section 401(a). 
However, this failure alone does not cause the employer to fail to be 
treated as operating qualified separate lines of business in accordance 
with Sec. 1.414(r)-1(b), unless the employer is relying on benefits 
provided under the plan to satisfy the minimum benefit portion of the 
safe harbor in Sec. 1.414(r)-5(g)(2) with respect to at least one of its 
qualified separate lines of business.

[T.D. 8376, 56 FR 63457, Dec. 4, 1991, as amended by T.D. 8376, 57 FR 
52591, Nov. 4, 1992; T.D. 8548, 59 FR 32921, June 27, 1994]



Sec. 1.414(r)-9  Separate application of section 401(a)(26).

    (a) General rule. If an employer is treated as operating qualified 
separate lines of business for purposes of section 401(a)(26) in 
accordance with Sec. 1.414(r)-1(b) for a testing year, the requirements 
of section 401(a)(26) must be applied separately with respect to the 
employees of each qualified separate line of business for purposes of 
testing all plans of the employer for plan years that begin in the 
testing year (other than a plan tested under the special

[[Page 662]]

rule for employer-wide plans in Sec. 1.414(r)-1(c)(3)(ii) for such a 
plan year). Conversely, if an employer is not treated as operating 
qualified separate lines of business for purposes of section 401(a)(26) 
in accordance with Sec. 1.414(r)-1(b) for a testing year, the 
requirements of section 401(a)(26) must be applied on an employer-wide 
basis for purposes of testing all plans of the employer for plan years 
that begin in the testing years. See Sec. 1414(r)-1(c)(3) and (d)(6). 
Paragraph (b) of this section explains how the requirements of section 
401(a)(26) are applied separately with respect to the employees of a 
qualified separate line of business for purposes of testing a plan. 
Paragraph (c) of this section provides certain supplementary rules 
necessary for the application of this section.
    (b) Requirements applicable to a plan. If the requirements of 
section 401(a)(26) are applied separately with respect to the employees 
of a qualified separate line of business for a testing year, a plan 
(other than a plan that is tested under the special rule for employer-
wide plans in Sec. 1.414(r)-1(c)(3)(ii) for a plan year) satisfies 
section 401(a)(26) only if it satisfies the requirements of 
Secs. 1.401(a)(26)-1 through 1.401(a)(26)-9 on a qualified-separate-
line-of-business basis. For this purpose, the nonexcludable employees of 
the employer taken into account in testing the plan under section 
401(a)(26) are determined under Sec. 1.401(a)(26)-6(b), taking into 
account the exclusion in Sec. 1.401(a)(26)-6(b)(8) for employees of 
other qualified separate lines of business of the employer. Thus, in 
testing a plan separately with respect to the employees of one qualified 
separate line of business under this paragraph (b), all employees of the 
employer's other qualified separate lines of business are treated as 
excludable employees.
    (c) Supplementary rules--(1) In general. This paragraph (c) provides 
certain supplementary rules necessary for the application of this 
section.
    (2) Definition of plan. For purposes of this section, the term plan 
mean a plan within the meaning of Sec. 1.401(a)(26)-2(c) and (d), 
including the mandatory disaggregation rule of Sec. 1.401(a)(26)-2(d)(6) 
for portions of a plan that benefit employees of different qualified 
separate lines of business. Thus, for purposes of this section, the 
portion of a plan that benefits employees of one qualified separate line 
of business is treated as a separate plan from the other portions of the 
same plan that benefit employees of other qualified separate lines of 
business of the employer, unless the plan is tested under the special 
rule for employer-wide plans in Sec. 1.414(r)-1(c)(3)(ii) for the plan 
year.
    (3) Employees of a qualified separate line of business. For purposes 
of applying paragraph (b)(2) of this section with respect to a section 
401(a)(26) testing day, the employees of each qualified separate line of 
business of the employer are determined by applying Sec. 1.414(r)-7 to 
the employees of the employer otherwise taken into account under section 
401(a)(26) for the section 401(a)(26) testing day. For the definition of 
section 401(a)(26) testing day, see Sec. 1.414(r)-11(b)(8).
    (4) Consequences of failure. If a plan fails to satisfy paragraph 
(b)(2) of this section, the plan (and any plan of which it constitutes a 
portion) fails to satisfy section 401(a). However, this failure alone 
would not cause the employer to fail to be treated as operating 
qualified separate lines of business in accordance with Sec. 1.414(r)-
1(b), unless the employer is relying on benefits provided under the plan 
to satisfy the minimum benefit portion of the safe harbor in 
Sec. 1.414(r)-5(g)(2) with respect to at least one of its qualified 
separate lines of business.

[T.D. 8376, 56 FR 63459, Dec. 4, 1991]
Sec. 1.414(r)-10  Separate application of section 129(d)(8).  [Reserved]



Sec. 1.414(r)-11  Definitions and special rules.

    (a) In general. This section contains certain definitions and 
special rules applicable under these regulations. Paragraph (b) of this 
section provides certain definitions that apply for purposes of these 
regulations. Paragraph (c) of this section provides averaging rules 
under which certain provisions of these regulations may be applied on 
the basis of a two-year or a three-year average.
    (b) Definitions--(1) In general. In applying the provisions of this 
section

[[Page 663]]

and of Secs. 1.414(r)-1 through 1.414(r)-10, unless otherwise provided, 
the definitions in this paragraph (b) govern in addition to the 
definitions in Sec. 1.410(b)-9.
    (2) Substantial-service employee. An employee is a substantial-
service employee with respect to a line of business for a testing year 
if at least 75 percent of the employee's services are provided to that 
line of business for that testing year within the meaning of 
Sec. 1.414(r)-3(c)(5). In addition, if an employee provides at least 50% 
and less than 75% of the employee's services to a line of business for 
the testing year within the meaning of Sec. 1.414(r)-3(c)(5), the 
employer may treat that employee as a substantial-service employee with 
respect to that line of business provided the employee is so treated for 
all purposes of these regulations. The employer may choose such 
treatment separately with respect to each employee.
    (3) Top-paid employee. Generally, an employee is a top-paid employee 
with respect to a line of business for a testing year if the employee is 
among the top 10 percent by compensation of those employees who provide 
services to that line of business for that testing year within the 
meaning of Sec. 1.414(r)-3(c)(5) and who are not substantial-service 
employees within the meaning of paragraph (b)(2) of this section with 
respect to any other line of business. In addition, in determining the 
group of top-paid employees, the employer may choose to disregard all 
employees who provide less than 25 percent of their services to the line 
of business. For purposes of this paragraph (b)(3), an employee's 
compensation is the compensation used to determine the employee's status 
as a highly or nonhighly compensated employee under section 414(q) for 
purposes of applying section 410(b) with respect to the first testing 
day. For this purpose, only compensation received during the 
determination year (within the meaning of Sec. 1.414(q)-1T, Q&A-13) is 
taken into account. See Sec. 1.414(r)-3(c)(7) for examples of the 
determination of top-paid employee.
    (4) Residual shared employee. An employee is a residual shared 
employee for a testing year if the employee is not a substantial-service 
employee with respect to any line of business for the testing year.
    (5) Testing year. The term testing year means the calendar year.
    (6) Testing day. The term testing day means any day on which 
Sec. 1.410(b)-8(a)(1) requires any plan (within the meaning of 
Sec. 1.414(r)-8(d)(2)) of the employer actually to satisfy section 
410(b) with respect to plan year that begins in the testing year. Thus, 
if a plan is required to satisfy section 410(b) on one day within each 
quarter of the plan year under the quarterly testing option of 
Sec. 1.410(b)-8(a)(3), each of those four days is a testing day. 
Similarly, if a plan is required to satisfy section 410(b) on every day 
of the plan year under the daily testing option of Sec. 1.410(b)-
8(a)(2), every day of the plan year is a testing day.
    (7) First testing day. The term first testing day means the testing 
day that occurs earliest in time of all the testing days under all plans 
of the employer with respect to the testing year. If a plan is tested 
under the annual testing option of Sec. 1.410(b)-8(a)(4) (other than for 
purposes of the average benefit percentage test of Sec. 1.410(b)-5) for 
a plan year that begins in a testing year, then, solely for purposes of 
determining the first testing day in a testing year, the employer may 
treat any day in the plan year as a testing day, provided that the 
coverage of each plan of the employer on the day selected is reasonably 
representative of the coverage of the plan over the entire plan year. 
The first testing day with respect to a testing year must fall within 
that testing year.
    (8) Section 401(a)(26) testing day. The term section 401(a)(26) 
testing day means any day on which Sec. 1.401(a)(26)-7(a) or (b) 
requires any plan of the employer actually to satisfy section 401(a)(26) 
with respect to a plan year that begins in the testing year. In no event 
may a section 401(a)(26) testing day with respect to a testing year fall 
before the first testing day for that testing year. For purposes of this 
paragraph (b)(8), the term plan has the same meaning as in Sec. 1.414(r-
9(c)(2).
    (c) Averaging rules--(1) In general. The provisions specified in 
this paragraph (c) are permitted to be applied based on the average of 
the percentages for the

[[Page 664]]

current testing year and the consecutive testing years (not to exceed 
four consecutive testing years) immediately preceding the current 
testing year.
    (2) Specified provisions. The provisions specified in this paragraph 
(c) are--
    (i) The 90-percent separate employee workforce requirement of 
Sec. 1.414(r)-3(b)(4);
    (ii) The 80-percent separate management requirement of 
Sec. 1.414(r)-3(b)(5);
    (iii) The 25-percent provision-to-customers requirement of 
Sec. 1.414(r)-3(d)(2)(iii);
    (iv) The minimum and maximum highly compensated employee percentage 
ratios under the statutory safe harbor of Sec. 1.414(r)-5(b)(1)(i) and 
(ii) (50 percent and 200 percent, respectively), but not the 10-percent 
exception in Sec. 1.414(r)-5(b)(4);
    (v) The employee assignment percentage applied for purposes of the 
dominant line of business method of allocating residual shared employees 
under Sec. 1.414(r)-7(c)(2) and the pro-rata method for allocating 
residual shared employees under Sec. 1.414(r)-7(c)(3).
    (3) Averaging of large fluctuations not permitted. A provision is 
not permitted to be applied based on an average determined under this 
paragraph (c) if the percentage for any testing year taken into account 
in calculating the average falls below a mimimum percentage, or exceeds 
a maximum percentage, by more than 10 percent (not 10 percentage points) 
of the respective minimum or maximum percentage. Thus, for example, the 
statutory safe harbor of Sec. 1.414(r)-5(b) is not permitted to be 
applied based on an average determined under this paragraph (c) if the 
percentage for any testing year taken into account in calculating the 
average falls below 45 percent (which is 10 percent below the 50-percent 
minimum) or exceeds 220 percent (which is 10 percent above the 200-
percent maximum).
    (4) Consistency requirements. A provision is permitted to be applied 
on an averaging basis under this paragraph (c) regardless of how any 
other provision is applied, except in the case of the separate employee 
workforce and separate management requirements of Sec. 1.414(r)-3(b)(4) 
and (5), which each must be applied on the same basis as the other. A 
provision is also permitted to be applied on an averaging basis under 
this paragraph (c) for a testing year, regardless of how the provision 
is applied for any other testing year. However, once a provision is 
applied on an averaging basis under this paragraph (c) for a testing 
year, it must be applied on the same basis to all the employer's lines 
of business to which the provision is applied for the testing year. The 
percentage for a preceding testing year may be taken into account under 
this paragraph (c) only if--
    (i) The employer calculates the percentage for the preceding testing 
year in the same manner as the employer calculates the percentage for 
the current testing year;
    (ii) The employer is treated as operating qualified separate lines 
of business in accordance with Sec. 1.414(r)-1(b) for the preceding 
testing year; and
    (iii) The employer designated the same lines of business in the 
preceding testing year as in the current testing year.

[T.D. 8376, 56 FR 63460, Dec. 4, 1991, as amended by T.D. 8548, 59 FR 
32922, June 27, 1994]



Sec. 1.414(s)-1  Definition of compensation.

    (a) Introduction--(1) In general. Section 414(s) and this section 
provide rules for defining compensation for purposes of applying any 
provision that specifically refers to section 414(s) or this section. 
For example, section 414(s) is referred to in many of the 
nondiscrimination provisions applicable to pension, profit-sharing, and 
stock bonus plans qualified under section 401(a). In accordance with 
section 414(s)(1), this section defines compensation as compensation 
within the meaning of section 415(c)(3). It also implements the election 
provided in section 414(s)(2) to treat certain deferrals as compensation 
and exercises the authority granted to the Secretary in section 
414(s)(3) to prescribe alternative nondiscriminatory definitions of 
compensation.
    (2) Limitations on scope of section 414(s). Section 414(s) and this 
section do not apply unless a provision specifically refers to section 
414(s) or this section. For example, even though a definition of 
compensation permitted

[[Page 665]]

under section 414(s) must be used in determining whether the 
contributions or benefits under a pension, profit-sharing, or stock 
bonus plan satisfy a certain applicable provision (such as section 
401(a)(4)), except as otherwise specified, the plan is not required to 
use a definition of compensation that satisfies section 414(s) in 
calculating the amount of contributions or benefits actually provided 
under the plan.
    (3) Overview. Paragraph (b) of this section provides rules of 
general application that govern a definition of compensation that 
satisfies section 414(s). Paragraph (c) of this section contains 
specific definitions of compensation that satisfy section 414(s) without 
satisfying any additional nondiscrimination requirement under section 
414(s). Paragraph (d) of this section provides rules permitting the use 
of alternative definitions of compensation that satisfy section 414(s) 
as long as the nondiscrimination requirement and other requirements 
described in paragraph (d) of this section are satisfied. Paragraph (e) 
and (f) of this section provide special rules permitting the use of rate 
of compensation, or prior-employer compensation or imputed compensation, 
rather than actual compensation, under a definition of compensation that 
satisfies section 414(s). Paragraph (g) of this section provides other 
special rules, including a special rule for determining the compensation 
of a self-employed individual under an alternate definition of 
compensation. Paragraph (h) of this section provides definitions for 
certain terms used in this section.
    (b) Rules of general application--(1) Use of a definition. Any 
definition of compensation that satisfies section 414(s) may be used 
when a provision explicitly refers to section 414(s) unless the 
reference or this section specifically indicates otherwise.
    (2) Consistency rule.--(i) General rule. A definition of 
compensation selected by an employer for use in satisfying an applicable 
provision must be used consistently to define the compensation of all 
employees taken into account in satisfying the requirements of the 
applicable provision for the determination period. For example, although 
any definition of compensation that satisfies section 414(s) may be used 
for section 401(a)(4) purposes, the same definition of compensation 
generally must be used consistently to define the compensation of all 
employees taken into account in determining whether a plan satisfies 
section 401(a)(4). Furthermore, a different definition of compensation 
that satisfies section 414(s) is permitted to be used to determine 
whether another plan maintained by the same employer separately 
satisfies the requirements of section 401(a)(4). Although a definition 
of compensation must be used consistently, an employer may change its 
definition of compensation for a subsequent determination period with 
respect to the applicable provision. Rules provided under any applicable 
provision may modify the consistency requirements of this paragraph 
(b)(2).
    (ii) Scope of consistency rule. Compensation will not fail to be 
defined consistently for a group of employees merely because some 
employees do not receive one or more of the types of compensation 
included in the definition. For example, a definition of compensation 
that includes salary, regular or scheduled pay, overtime, and specified 
types of bonuses will not fail to define compensation consistently 
merely because only salaried employees receive salary and these 
specified types of bonuses and only hourly employees receive regular or 
scheduled pay and overtime.
    (3) Self-employed individuals. Notwithstanding paragraph (b)(1) of 
this section, self-employed individuals' compensation can only be 
determined under paragraph (c)(2) of this section (with or without the 
modification permitted by paragraph (c)(4) of this section or a 
modification permitted by paragraph (c)(5) of this section) or by using 
an equivalent alternative compensation amount determined in accordance 
with paragraph (g)(1) of this section. These limitations on self-
employed individuals do not affect their common-law employees. Thus, the 
compensation of common-law employees of a partnership or sole 
proprietorship may be defined using an alternative definition, provided 
the definition otherwise satisfies paragraph (c)(3), (d), (e), or (f) of 
this section. If

[[Page 666]]

an alternative definition of compensation under paragraph (c)(3), (d), 
(e), or (f) of this section is used for other employees to satisfy an 
applicable provision, the consistency requirement is only met if 
paragraph (g) of this section is used for the self-employed individuals.
    (c) Specific definitions of compensation that satisfy section 
414(s)--(1) General rules. The definitions of compensation provided in 
paragraphs (c)(2) and (c)(3) of this section satisfy section 414(s) and 
need not satisfy any additional requirements under section 414(s). 
Paragraph (c)(2) of this section describes definitions of compensation 
within the meaning of section 415(c)(3). Paragraph (c)(3) of this 
section provides a safe harbor alternative definition that excludes 
certain additional items of compensation. Paragraph (c)(4) of this 
section permits any definition provided in paragraph (c)(2) or (c)(3) of 
this section to include certain types of elective contributions and 
deferred compensation. Paragraph (c)(5) of this section permits certain 
modifications to a definition otherwise provided under this paragraph 
(c).
    (2) Compensation within the meaning of section 415(c)(3). A 
definition of compensation that includes all compensation within the 
meaning of section 415(c)(3) and excludes all other compensation 
satisfies section 414(s). Sections 1.415-2(d)(2) and (d)(3) provide 
rules for determining items of compensation included in and excluded 
from compensation within the meaning of section 415(c)(3). In addition, 
section 414(s) is satisfied by the safe harbor definitions provided in 
Sec. 1.415-2(d)(10) and (d)(11) and any additional definitions of 
compensation prescribed by the Commissioner under the authority provided 
in Sec. 1.415-2(d)(13) that are treated as satisfying section 415(c)(3).
    (3) Safe harbor alternative definition. Under the safe harbor 
alternative definition in this paragraph (c)(3), compensation is 
compensation as defined in paragraph (c)(2) of this section, reduced by 
all of the following items (even if includible in gross income): 
reimbursements or other expense allowances, fringe benefits (cash and 
noncash), moving expenses, deferred compensation, and welfare benefits.
    (4) Inclusion of certain deferrals in compensation. Any definition 
of compensation provided in paragraph (c)(2) or (c)(3) of this section 
satisfies section 414(s) even though it is modified to include all of 
the following types of elective contributions and all of the following 
types of deferred compensation--
    (i) Elective contributions that are made by the employer on behalf 
of its employees that are not includible in gross income under section 
125, section 402(e)(3), section 402(h), and section 403(b);
    (ii) Compensation deferred under an eligible deferred compensation 
plan within the meaning of section 457(b) (deferred compensation plans 
of state and local governments and tax-exempt organizations); and
    (iii) Employee contributions (under governmental plans) described in 
section 414(h)(2) that are picked up by the employing unit and thus are 
treated as employer contributions.
    (5) Exclusions applicable solely to highly compensated employees. 
Any definition of compensation that satisfies paragraph (c)(2) or (c)(3) 
of this section, with or without the modification permitted by paragraph 
(c)(4) of this section, may be modified to exclude any portion of the 
compensation of some or all of the employer's highly compensated 
employees (including, for example, any one or more of the types of 
elective contributions or deferred compensation described in paragraph 
(c)(4) of this section).
    (d) Alternative definitions of compensation that satisfy section 
414(s)--(1) General rule. In addition to the definitions provided in 
paragraph (c) of this section, any definition of compensation satisfies 
section 414(s) with respect to employees (other than self-employed 
individuals treated as employees under section 401(c)(1)) if the 
definition of compensation does not by design favor highly compensated 
employees, is reasonable within the meaning of paragraph (d)(2) of this 
section, and satisfies the nondiscrimination requirement in paragraph 
(d)(3) of this section.
    (2) Reasonable definition of compensation--(i) General rule. An 
alternative definition of compensation under this

[[Page 667]]

paragraph (d) is reasonable under section 414(s) if it is a definition 
of compensation provided in paragraph (c) of this section, modified to 
exclude all or any portion of one or more of the types of compensation 
described in paragraph (d)(2)(ii) of this section. See paragraph (e) of 
this section, however, for special rules that permit definitions of 
compensation based on employees' rates of compensation and paragraph (f) 
of this section for special rules that permit definitions of 
compensation that include prior-employer compensation or imputed 
compensation.
    (ii) Items that may be excluded. A reasonable definition of 
compensation is permitted to exclude, on a consistent basis, all or any 
portion of irregular or additional compensation, including (but not 
limited to) one or more of the following: Any type of additional 
compensation for employees working outside their regularly scheduled 
tour of duty (such as overtime pay, premiums for shift differential, and 
call-in premiums), bonuses, or any one or more of the types of 
compensation excluded under the safe harbor alternative definition in 
paragraph (c)(3) of this section. Whether a type of compensation is 
irregular or additional is determined based on all the relevant facts 
and circumstances. A reasonable definition is also permitted to include, 
on a consistent basis, all or any portion of the types of elective 
contributions or deferred compensation described in paragraph (c)(4) of 
this section and, thus, need not include all those types of elective 
contributions or deferred compensation as otherwise required under 
paragraph (c)(4) of this section.
    (iii) Limits on the amount excluded from compensation. A definition 
of compensation is not reasonable if it provides that each employee's 
compensation is a specified portion of the employee's compensation 
measured for the otherwise applicable determination period under another 
definition. For example, a definition of compensation that specifically 
limits each employee's compensation for a determination period to 95 
percent of the employee's compensation using a definition provided in 
paragraph (c) of this section is not reasonable. Similarly, a definition 
of compensation that limits each employee's compensation used to satisfy 
an applicable provision with a 12-month determination period to 
compensation under a definition provided in paragraph (c) of this 
section for one month is not a reasonable definition of compensation. 
However, a definition of compensation is not unreasonable merely because 
it excludes all compensation in excess of a specified dollar amount.
    (3) Nondiscrimination requirement--(i) In general. An alternative 
definition of compensation under this paragraph (d) is nondiscriminatory 
under section 414(s) for a determination period if the average 
percentage of total compensation included under the alternative 
definition of compensation for an employer's highly compensated 
employees, as a group for the determination period does not exceed by 
more than a de minimis amount the average percentage of total 
compensation included under the alternative definition for the 
employer's nonhighly compensated employees as a group.
    (ii) Total compensation--(A) General rule. For purposes of this 
paragraph (d)(3), total compensation must be determined using a 
definition of compensation provided in paragraph (c)(2) of this section, 
either with or without the modification permitted by paragraph (c)(4) of 
this section. Thus, total compensation does not include prior-employer 
compensation or imputed compensation described in paragraph (f)(1) of 
this section (including imputed compensation for a period during which 
an employee performs services for another employer). Total compensation 
taken into account for each employee (including, if added, the elective 
contributions and deferred compensation described in paragraph (c)(4) of 
this section) may not exceed the annual compensation limit of section 
401(a)(17).
    (B) Alternative definitions with exclusions applicable solely to 
highly compensated employees. If an alternative definition of 
compensation contains a provision that excludes amounts from 
compensation and, as described in paragraph (c)(5) of this section, the 
provision only applies in defining the

[[Page 668]]

compensation of some highly compensated employees, then, for purposes of 
this paragraph (d)(3), the total compensation of any highly compensated 
employee subject to the provision must be reduced by any amount excluded 
from the employee's compensation as a result of the provision. However, 
if the provision applies consistently in defining the compensation of 
all highly compensated employees, this adjustment to total compensation 
is not required.
    (iii) Employees taken into account--(A) General rule. In applying 
the requirement of this paragraph (d)(3), the employees taken into 
account are the same employees taken into account in satisfying the 
requirements of the applicable provision for the determination period. 
For example, in determining whether a plan satisfies section 401(a)(4), 
an alternative definition must satisfy this paragraph (d)(3) taking into 
account all employees who benefit under the plan for the plan year 
(within the meaning of Sec. 1.410(b)-3(a)). If an employer is using the 
same alternative definition of compensation to determine whether more 
than one separate plan satisfies section 401(a)(4), the employer is 
permitted to take into account all the employees who benefit under all 
of those plans for the plan year in determining whether the alternative 
definition of compensation being used satisfies this paragraph (d)(3).
    (B) Exclusion of self-employed individuals. In applying the 
requirement of this paragraph (d)(3), self-employed individuals are 
disregarded.
    (C) Certain employees disregarded. If an employee's total 
compensation for the determination period, determined under paragraph 
(d)(3)(ii) and (d)(3)(vi)(B) of this section, is zero, the employee is 
disregarded in determining whether the nondiscrimination requirement of 
paragraph (d)(3) of this section is satisfied for that determination 
period. For example, an employee who does not receive any actual 
compensation during a determination period because the employee is on 
unpaid leave of absence for the entire period, but who is credited with 
imputed compensation described in paragraph (f)(1) of this section, is 
disregarded in determining whether the nondiscrimination requirement of 
this paragraph (d)(3) is satisfied for that determination period.
    (iv) Calculation of average percentages--(A) General rule. To 
determine the average percentages described in paragraph (d)(3)(i) of 
this section, an individual compensation percentage must be calculated 
for each employee in a group, and then the average of the separately 
calculated compensation percentages for each employee in the group must 
be determined. The individual compensation percentage for an employee is 
calculated by dividing the amount of the employee's compensation that is 
included under the alternative definition by the amount of the 
employee's total compensation.
    (B) Other reasonable methods. Notwithstanding paragraph 
(d)(3)(iv)(A) of this section, any other reasonable method is permitted 
to be used to determine the average percentages described in paragraph 
(d)(3)(i) of this section for either or both of the groups (i.e., highly 
compensated employees and nonhighly compensated employees), provided 
that the method cannot reasonably be expected to create a significant 
variance from the average percentage for that group determined using the 
individual-percentage method provided in paragraph (d)(3)(iv)(A) of this 
section. The same method is not required to be used for calculating the 
two average percentages. For example, to determine the average 
percentage for nonhighly compensated employees as a group, an employer 
may calculate an aggregate compensation percentage by dividing the 
aggregate amount of compensation of nonhighly compensated employees that 
are included under the alternative definition by the aggregate amount of 
total compensation of nonhighly compensated employees, provided the 
resulting percentage is not reasonably expected to vary significantly 
from the average percentage produced using the individual-percentage 
method provided in paragraph (d)(3)(iv)(A) of this section because of 
the extra weight given employees with higher compensation.
    (v) Facts and circumstances determination. The determination of 
whether the average percentage of total compensation included for the 
employer's highly

[[Page 669]]

compensated employees as a group for a determination period exceeds by 
more than a de minimis amount the average percentage of total 
compensation included for the employer's nonhighly compensated employees 
as a group is based on all the relevant facts and circumstances. The 
differences between the percentages for prior determination periods may 
be considered in determining whether the amount of the difference 
between the percentages is more than de minimis. In addition, an 
isolated instance of a more than de minimis difference between the 
compensation percentages that is due to an extraordinary unforeseeable 
event (such as overtime payments to employees of a public utility due to 
a major hurricane) will be disregarded if the amount of the difference 
in prior determination periods was de minimis.
    (vi) Special rules for definitions of compensation based on rate of 
compensation or that include prior-employer or imputed compensation--(A) 
Special rule for determining compensation included under an alternative 
definition. If an alternative definition uses rate of compensation or 
includes prior-employer compensation or imputed compensation, the amount 
of each employee's compensation for a determination period that is 
treated as included under the alternative definition for purposes of 
determining the average percentages for the nondiscrimination 
requirement (i.e. the amount used in the numerator) must not be more 
than 100 percent of the employee's total compensation for that period, 
determined under paragraph (d)(3)(ii) and (d)(3)(vi)(B) of this section. 
This limit on the amount of compensation treated as included under the 
alternative definition applies even if the amount of compensation 
actually credited to the employee for the determination period under the 
definition and, thus, used as compensation within the meaning of section 
414(s), exceeds the employee's total compensation for the period.
    (B) Special rule for determining total compensation. If an 
alternative definition uses rate of compensation or includes prior-
employer compensation or imputed compensation, each employee's total 
compensation for purposes of determining the average percentages for the 
nondiscrimination requirement (i.e. the amount used in the denominator) 
must include all the types of elective contributions and deferred 
compensation described in paragraph (c)(4) of this section.
    (e) Rate of compensation--(1) General rule. A definition of 
compensation satisfies section 414(s) as a reasonable definition of 
compensation even though it defines the amount of each employee's basic 
or regular compensation using the employee's basic or regular rate of 
compensation rather than using the employee's actual basic or regular 
compensation from the employer if the definition satisfies the 
requirements specified in paragraph (e)(3) of this section and otherwise 
satisfies the requirements of paragraph (d) of this section, including 
the nondiscrimination test in paragraph (d)(3) of this section. For this 
purpose, the employee's rate of compensation must be determined using an 
hourly pay scale, weekly salary, or similar unit of basic or regular 
compensation applicable to the employee. A definition will not fail to 
satisfy the requirements of this paragraph (e) merely because it defines 
compensation as including each employee's basic or regular compensation, 
the amount of which is determined using each employee's basic or regular 
rate of compensation, plus actual amounts of irregular or additional 
compensation, such as overtime or bonuses. In addition, a definition of 
compensation will not fail to satisfy section 414(s) merely because it 
defines compensation for each employee as the greater of the employee's 
actual compensation, the amount of which is determined using a 
definition that would otherwise satisfy paragraph (c) or (d)(2) of this 
section, or the employee's basic or regular compensation, the amount of 
which is determined using the employee's basic or regular rate of 
compensation.
    (2) Not applicable to certain contributions. This paragraph (e) does 
not apply to a definition of compensation used in determining whether 
elective deferrals (as defined in section 402(g)(3)), matching 
contributions (as defined in section 401(m)(4)), or employee 
contributions subject to section 401(m) satisfy any applicable 
provision. Thus, for example, a definition of compensation that

[[Page 670]]

defines compensation based on each employee's basic or regular rate of 
compensation may not be used to measure compensation for purposes of 
determining if a qualified cash or deferred arrangement satisfies the 
actual deferral percentage test in section 401(k)(3).
    (3) Requirements for definitions of compensation based on rate of 
compensation--(i) Benefit determination. The definition of compensation 
must actually be used to calculate the benefits, contributions, or other 
amounts, that are subject to the applicable provision. For example, a 
definition of compensation that defines compensation based on each 
employee's basic or regular rate of compensation may not be used to 
determine whether a plan satisfies section 401(a)(4) unless the 
benefits, contributions, or other amounts for each employee in the plan 
are determined using that definition of compensation.
    (ii) Period for determining compensation. The amount of each 
employee's basic or regular compensation for the determination period 
must be determined using the employee's basic or regular rate of 
compensation as of a designated date in the determination period. For 
example, if the determination period is a calendar year, this 
requirement would be satisfied if the amount of each employee's basic or 
regular compensation for the calendar year is determined using the 
employee's basic or regular rate of compensation as of January 1 of the 
calendar year. Alternatively, the amount of each employee's basic or 
regular compensation for a determination period can be the sum of the 
amounts separately determined for shorter specified periods (e.g., weeks 
or months) within the determination period provided the amount of each 
employee's basic or regular compensation for each specified period is 
determined using the employee's basic or regular rate of compensation as 
of a designated date within the specified period.
    (iii) Dates for determining rate of compensation. One or more dates 
may be used to determine employees' rates of compensation for a 
determination period or specified period provided that, if the same date 
is not used for all employees, the dates selected are designed to 
determine the rates of compensation for that period on a consistent 
basis for all employees taken into account for the determination period. 
For example, if annual compensation increases are provided to different 
groups of employees on different dates during the year, it would be 
consistent to choose a different date for each group in order to include 
the annual increase in the employees' rates of compensation for the 
determination period. In addition, the date or dates selected, by 
themselves, must not cause the portion of total compensation included to 
vary significantly among employees.
    (iv) Periods without compensation or with reduced compensation. An 
employee's compensation may generally only be determined using the 
employee's rate of compensation for employment periods during which the 
employer actually compensates the employee. However, if an employee 
terminates employment or otherwise stops performing services (such as 
for a leave of absence, layoff or similar event) either without 
compensation or with reduced compensation during a determination period, 
the employer may continue to credit the employee with compensation based 
on the employee's rate of compensation for a period of up to 31 days 
after the event, but not beyond the end of the determination period. 
Paragraph (f) of this section contains special rules for crediting 
imputed compensation for periods extending beyond 31 days during which 
an employee is not compensated or an employee's compensation is reduced. 
See also the definition of Section 414(s) compensation in 
Sec. 1.401(a)(4)-12 that, for purposes of satisfying section 401(a)(4), 
permits adjustments to compensation to reflect the equivalent of full-
time compensation to the extent necessary to satisfy the requirements of 
29 CFR 2530.204-2(d) (regarding double proration of service and 
compensation).
    (f) Prior-employer compensation and imputed compensation--(1) 
General rule. Solely for purposes of determining whether a defined 
benefit plan, as defined in Sec. 1.410(b)-9, satisfies section 401(a)(4) 
or 410(b), an alternative definition that includes prior-employer 
compensation or imputed compensation satisfies section 414(s) as a 
reasonable

[[Page 671]]

alternative definition if the definition satisfies the requirements 
specified in paragraphs (f) (2) and (3) of this section. For this 
purpose, prior-employer compensation is compensation from an employer 
other than the employer (determined at the time that the compensation is 
paid) maintaining the plan that is credited for periods prior to the 
employee's employment with the employer maintaining the plan and during 
which the employee performed services for the other employer. For this 
purpose, imputed compensation is compensation credited for periods after 
an employee has commenced or recommenced participation in a plan while 
the employee is not compensated by the employer maintaining the plan or 
is compensated at a reduced rate by that employer because the employee 
is not performing services as an employee for the employer (including a 
period in which the employee performs services for another employer, 
e.g., a joint venture) or because the employee has a reduced work 
schedule.
    (2) Requirements for definitions of compensation crediting prior-
employer compensation or imputed compensation--(i) General requirement. 
The definition must otherwise be described in paragraph (c) of this 
section or must otherwise satisfy the requirements of paragraph (d) or 
(e) of this section for alternative definitions of compensation, 
including the nondiscrimination requirement in paragraph (d)(3) of this 
section.
    (ii) Benefit determination. A definition of compensation that 
credits prior-employer compensation or imputed compensation must 
actually be used to calculate the benefits under the plan. For example, 
the definition may not be used to determine whether a defined benefit 
plan satisfies section 401(a)(4) unless the benefits for each employee 
in the plan are determined using that definition of compensation.
    (iii) Provision applied to all similarly-situated employees. A 
provision in a plan's definition of compensation crediting prior-
employer compensation or imputed compensation must apply on the same 
terms to all similarly-situated employees in the plan. The criteria for 
determining whether employees are similarly situated for this purpose 
are the same as the criteria for determining whether a plan provision 
crediting pre-participation or imputed service satisfies the 
requirements of Sec. 1.401(a)(4)-11(d)(3)(iii)(A).
    (iv) Legitimate business purpose. There must be a legitimate 
business purpose, based on all of the relevant facts and circumstances, 
for crediting prior-employer compensation or imputed compensation to an 
employee for the period being credited. The standard for determining 
whether crediting prior-employer compensation or imputed compensation 
satisfies this requirement is the same as the standard for determining 
whether crediting pre-participation or imputed service under a plan 
satisfies the requirements of Sec. 1.401(a)(4)-11(d)(3)(iii)(B) and 
whether crediting imputed service satisfies the additional requirements 
of Sec. 1.401(a)(4)-11(d)(3)(iv)(A). However, if the legitimate business 
reason for crediting imputed compensation relates to the services the 
employee is performing for another employer and the reason satisfies the 
standard in Sec. 1.401(a)(4)-11(d)(3)(iii)(B), the additional 
requirements of Sec. 1.401(a)(4)-11(d)(3)(iv)(A) are deemed to be 
satisfied. For example, if an employee becomes employed by another 
employer as a result of a merger, acquisition or similar transaction 
with the other employer and imputed compensation is credited to the 
employee while the employee is performing services for the other 
employer, the crediting of imputed compensation to the employee 
satisfies the standard in Sec. 1.401(a)(4)-11(d)(3)(iii)(B). Thus, under 
that example, crediting the imputed compensation to the employee is 
deemed to satisfy the additional requirements of Sec. 1.401(a)(4)-
11(d)(3)(iv)(A), even if the employee is not performing those services 
under an arrangement that provides an ongoing business benefit to the 
employer maintaining the plan.
    (v) No significant discrimination. Based on all of the relevant 
facts and circumstances, crediting prior-employer compensation or 
imputed compensation must not by design or in operation discriminate 
significantly in favor of highly compensated employees. The standard for 
determining whether crediting prior-employer compensation or

[[Page 672]]

imputed compensation satisfies this requirement is the same as the 
standard for determining whether crediting pre-participation or imputed 
service satisfies the requirement in Sec. 1.401(a)(4)-11(d)(3)(iii)(C) 
and whether crediting imputed service satisfies the additional 
requirement of Sec. 1.401(a)(4)-11(d)(3)(iv)(B).
    (3) Reasonable method--(i) General rule. Any reasonable method may 
be used to determine the amount of prior-employer compensation or 
imputed compensation provided that the requirements of paragraph (f)(3) 
(ii) or (iii) of this section are satisfied, whichever is applicable.
    (ii) Requirements for prior-employer compensation. Prior-employer 
compensation credited to an employee for a period that an employee is 
performing services for another employer must be compensation for the 
employee from the other employer (or be based on the employee's basic or 
regular rate of compensation from the other employer) for that period. 
In addition, prior employer compensation credited to an employee must 
not exceed the amount of compensation from the other employer that would 
have been included under the definition of compensation in effect for 
that period for compensation from the employer maintaining the plan. 
Reasonable assumptions may be made in determining the amount of 
compensation received from another employer for a period that would have 
been included under the definition of compensation in effect for that 
period for compensation from the employer maintaining the plan.
    (iii) Requirements for imputed compensation--(A) General rule. The 
amount of imputed compensation credited to an employee during any 
period, when combined with the amount of any actual compensation being 
included, must not exceed an amount that, based on all of the relevant 
facts and circumstances, is reasonably representative of the amount of 
compensation that the employee would have received and that would have 
been included under the definition of compensation in effect for the 
period if the employee had continued to perform services for the 
employer during that period at the same level as the employee was 
performing before the employee stopped performing services or changed to 
a reduced work schedule. The relevant facts and circumstances include 
the compensation that the employee was receiving immediately before the 
employee stopped performing services or changed to a reduced work 
schedule, and, if applicable, the rate of compensation in effect while 
the employee is not performing services or has a reduced work schedule 
that is applicable to the employee's specific job grade immediately 
before the change occurred.
    (B) Imputed compensation from another employer. Imputed compensation 
credited for a period that an employee is performing services for 
another employer is deemed to satisfy paragraph (f)(3)(iii)(A) of this 
section if the amount of compensation credited satisfies the 
requirements of paragraph (f)(3)(ii) of this section for prior-employer 
compensation. Thus, for example, the amount of imputed compensation 
credited to an employee for a period that the employee is performing 
services for another employer is deemed to satisfy paragraph 
(f)(3)(iii)(A) of this section if the amount credited is compensation 
for the employee from the other employer (or is based on the employee's 
basic or regular rate of compensation from the other employer) for that 
period, and the amount credited does not exceed the compensation from 
the other employer that would be included for the employee under the 
definition of compensation in effect for that period for compensation 
from the employer maintaining the plan.
    (4) Special nondiscrimination rule for safe harbor definitions. If a 
definition of compensation crediting prior-employer or imputed 
compensation is otherwise described in paragraph (c) of this section, 
and the prior-employer compensation or imputed compensation credited 
satisfies the requirements of paragraphs (f) (1), (2), and (3) of this 
section, then the definition is deemed to satisfy paragraph (d) of this 
section (i.e., it is deemed to be nondiscriminatory).
    (g) Special rules--(1) Self-employed individuals--(i) General rule. 
If an alternative definition of compensation under paragraph (c)(3), 
(d), (e), or (f) of

[[Page 673]]

this section is used to satisfy an applicable provision, an equivalent 
alternative compensation amount must be determined for any self-employed 
individual who is in the group of employees for whom paragraph (b) of 
this section requires a single definition of compensation to be used. 
This equivalent alternative compensation amount is determined by 
multiplying the self-employed individual's total earned income (as 
defined in section 401 (c)(2)) for the determination period by the 
percentage of total compensation (as defined in paragraph (d)(3)(ii) of 
this section) included under the alternative definition for the 
employer's nonhighly compensated common-law employees as a group 
(determined in a manner consistent with the rules in paragraph 
(d)(3)(iii) of this section and, if applicable, paragraph (d)(3)(vi) of 
this section). Thus, for purposes of this determination, highly 
compensated common-law employees must be disregarded. This equivalent 
alternative compensation amount will be treated as the self-employed 
individual's compensation under the alternative definition of 
compensation for the determination period.
    (ii) Inclusion of elective contributions. If the alternative 
definition of compensation includes any types of elective contributions 
described in paragraph (c)(4) of this section, the self-employed 
individual's earned income for this determination must be increased by 
the amount of elective contributions made by the employer on behalf of 
the self-employed individual, and the definition of total compensation 
for this determination must include all the types of elective 
contributions described in paragraph (c)(4) of this section made by the 
employees (other than highly compensated employees.
    (iii) Reductions in equivalent alternative compensation amount 
applicable only to highly compensated employees. An alternative 
definition of compensation may provide that compensation under the 
alternative definition for some or all self-employed individuals who are 
highly compensated employees is a specified portion of, rather than 
equal to, the equivalent compensation amount determined under paragraph 
(g)(1)(i).
    (2) Leased employees. [Reserved]
    (h) Definitions. The following definitions apply for purposes of 
this section:
    (1) Applicable provision. Applicable provision means a provision 
that specifically refers to section 414(s) or this section.
    (2) Determination period. Determination period means a period during 
which the amount of compensation is measured for use in determining 
whether the requirements of an applicable provision are satisfied. If no 
period is provided under the applicable provision for measuring 
compensation, the determination period is the period for which the 
applicable provision must be satisfied. The applicable provision may 
provide additional rules concerning the determination period to be used 
for satisfying the nondiscrimination requirement in paragraph (d) of 
this section.
    (3) Employee. Employee means employee within the meaning of 
Sec. 1.410(b)-9.
    (4) Highly compensated employee. Highly compensated employee means 
highly compensated employee within the meaning of Sec. 1.410(b)-9.
    (5) Nonhighly compensated employee. Nonhighly compensated employee 
means nonhighly compensated employee within the meaning of 
Sec. 1.410(b)-9.
    (6) Self-employed individual. Self-employed individual means self-
employed individual within the meaning of section 401(c)(1).
    (i) Additional rules. The Commissioner may in revenue rulings, 
notices, and other guidance of general applicability provide additional 
rules for defining compensation within the meaning of section 414(s), 
including additional definitions of compensation that satisfy section 
414(s).
    (j) Effective date and transition rules--(1) Statutory effective 
date. Section 414(s) applies to years beginning on or after January 1, 
1987.
    (2) Regulatory effective date--(i) In general. Except as otherwise 
provided in paragraph (j)(2)(ii) of this section, Sec. 1.414(s)-1 (a) 
through (i) apply to years beginning on or after January 1, 1994.
    (ii) Plans of tax-exempt organizations. In the case of a plan 
maintained by an

[[Page 674]]

organization that is exempt from income taxation pursuant to section 
501(a), including plans subject to section 403(b)(12)(A)(i) (nonelective 
plans), Sec. 1.414(s)-1 (a) through (i) apply to plan years beginning on 
or after January 1, 1996.
    (3) Compliance during transition period. For plan years beginning 
before the effective date of these regulations, as set forth in 
paragraph (j)(2) of this section, and on or after the statutory 
effective date as set forth in paragraph (j)(1) of this section, a plan 
must be operated in accordance with a reasonable, good faith 
interpretation of section 414(s). Whether a plan is operated in 
accordance with a reasonable, good faith interpretation of section 
414(s) will generally be determined based on all relevant facts and 
circumstances, including the extent to which an employer has resolved 
unclear issues in its favor. A plan will be deemed to be operated in 
accordance with a reasonable, good faith interpretation of section 
414(s)(1) and (2) if it is operated in accordance with the terms of 
Sec. 1.414(s)-1 (a) through (i). For years beginning on or after the 
statutory effective date and before the effective date of these 
regulations, a definition of compensation is also deemed to satisfy 
section 414(s) as an alternative method of determining compensation 
under section 414(s)(3) if the definition satisfies the requirements of 
Sec. 1.414(s)-1 (a) through (i) or if the definition satisfies the prior 
regulation provisions of Sec. 1.414(s)-1T. (See Sec. 1.414(s)-1T as 
contained in the CFR edition revised as of April 1, 1991.) In addition, 
for those transition years, a definition of compensation is deemed to 
satisfy section 414(s) as an alternative method of determining 
compensation under section 414(s)(3) if, based on all the relevant facts 
and circumstances in effect for the year, use of the definition does not 
cause discrimination in favor of highly compensated employees.

[T.D. 8361, 56 FR 47662, Sept. 19, 1991; 57 FR 10815, 10953, Mar. 31, 
1992, as amended by T.D. 8488, 58 FR 47063, Sept. 7, 1993]



Sec. 1.415-1  General rules with respect to limitations on benefits and contributions under qualified plans.

    (a) Trusts. Under sections 415 and 401(a)(16), a trust which forms 
part of a pension, profit-sharing or stock bonus plan will not be 
qualified under section 401(a) if any one of the following conditions 
exists:
    (1) The annual benefits under a defined benefit plan with respect to 
any participant for any limitation year exceed the limitations of 
section 415(b) and Sec. 1.415-3.
    (2) The contributions and other additions credited under a defined 
contribution plan with respect to any participant for any limitation 
year exceed the limitations of section 415(c) and Sec. 1.415-6.
    (3) Where an individual has at any time participated in a defined 
benefit plan and also has at any time participated in a defined 
contribution plan maintained by the same employer, the trust has been 
disqualifed under section 415(g) and Sec. 1.415-9.
    (b) Certain annuities and accounts--(1) In general. Except as 
provided in paragraph (c) of this section, an annuity, account, etc., 
listed in section 415(a)(2) will not be considered to be described in 
the otherwise applicable section unless--
    (i) It satisfies the requirements of Sec. 1.415-3 (relating to 
limitations on benefits), Sec. 1.415-6 (relating to limitations on 
contributions and other additions) or Sec. 1.415-7 (relating to 
limitations where an individual has at any time participated in a 
defined contribution plan and also has at any time participated in a 
defined benefit plan maintained by the same employer), whichever is 
applicable, and
    (ii) It has not been disqualifed under Sec. 1.415-9 (relating to 
disqualification of plans and trusts).
    (2) Special rule for section 403(b) annuity contracts. (i) With 
respect to an annuity contract described in section 403(b), the 
provisions of subparagraph (1) of this paragraph apply only to that 
portion of the contract which exceeds the limitations of Sec. 1.415-3, 
Sec. 1.415-6 and Sec. 1.415-7, whichever is applicable.

[[Page 675]]

    (ii) In addition, where the amount of the contribution under the 
section 403(b) annuity contract exceeds the applicable limitation, the 
exclusion allowance described in section 403(b)(2)(A) is reduced in the 
manner described in Sec. 1.415-6(e)(1)(ii).
    (3) Cross references to additional rules for section 403(b) annuity 
contracts. For additional rules relating to section 403(b) annuity 
contracts, see--
    (i) Section 1.415-1(f)(2) (relating to the plan year for such 
annuity contracts),
    (ii) Section 1.415-2(b)(7) (relating to the limitation year for such 
annuity contracts),
    (iii) Section 1.415-6(e) (relating to the applicability of the 
alternative limitations described in section 415(c)(4) to such annuity 
contracts),
    (iv) Sections 1.415-7(c)(2) and 1.415-7(h) (relating to rules for 
such annuity contracts for purposes of computing the defined 
contribution plan fraction),
    (v) Section 1.415-8(d) (relating to rules for such annuity contracts 
for purposes of combining plans), and
    (vi) Section 1.415-9(c) (relating to rules for such annuity 
contracts for purposes of determining the amount of a disqualified 
contribution to the annuity contract).
    (c) Certain accounts, annuities and bonds established for non-
employed spouse. Paragraph (b) of this section is not applicable to an 
account, annuity or bond as described in section 408(a), 408(b) or 409, 
respectively established for the benefit of the spouse of the individual 
who contributes to it for any year for which a deduction is allowable 
for the individual under section 220. For a special effective date with 
respect to this paragraph, see paragraph (f)(3) of this section.
    (d) Plan provisions--(1) In general. Although no specific plan 
provision is required under section 415 in order for a plan to establish 
or maintain its qualification, the plan provisions must preclude the 
possibility that the limitations imposed by section 415 will be 
exceeded. For example, a plan may include provisions which automatically 
freeze or reduce the rate of benefit accrual (in the case of a defined 
benefit plan) or the annual addition (in the case of a defined 
contribution plan) to a level necessary to prevent the limitations from 
being exceeded with respect to any participant. For rules relating to 
this type of plan provision and the definitely determinable benefit 
requirement for pension plans, see Sec. 1.401(a)-1(b)(1).
    (2) Special rule for profit-sharing and stock bonus plans. The use 
of a plan provision by a profit-sharing or stock bonus plan which 
automatically freezes or reduces the amount of annual additions to 
insure that the limitations of section 415 will not be exceeded must 
comply with the requirement set forth in Sec. 1.401-1(b)(1) (ii) and 
(iii) that such plans provide a definite predetermined formula for 
allocating the contributions made to the plan among the participants. 
Thus, if the operation of this provision involves discretionary action 
on the part of the employer, the definite predetermined allocation 
formula requirement will be violated. For example, if two defined 
contribution plans of one employer otherwise provide for aggregate 
contributions which may exceed the limits of section 415(c), the plan 
provisions must specify (without involving employer discretion) which 
plan will reduce contributions and allocations to prevent an excess 
annual addition and how the reduction will occur.
    (e) Rules for plans maintained by more than one employer--(1) Plans 
described in section 413(b) or section 413(c). This subparagraph 
provides for participants of a plan described in section 413(c) or 
section 413(b) (other than a plan described in section 414(f)). For 
purposes of applying the limitations of section 415 with respect to a 
participant of an employer maintaining the plan, benefits or 
contributions attributable to such participant from all of the employers 
maintaining the plan must be taken into account. Furthermore, in 
applying the limitations of section 415 with respect to such a 
participant, the total compensation received by the participant from all 
of the employers maintaining the plan may be taken into account.
    (2) Plans described in section 414(f). (i) This subparagraph 
provides rules for participants of a multiemployer plan described in 
section 414(f). For purposes of applying the limitations of section

[[Page 676]]

415 with respect to a participant of an employer maintaining the plan, 
only the benefits or contributions provided by the employer of such 
participant shall be taken into account. The benefits provided by an 
employer under such a plan shall equal the excess of the plan benefit 
over the plan benefit computed as if the participant had no covered 
service with that employer.
    (ii) As an alternative to applying the limitations of section 415 
with respect to a participant of an employer maintaining the 
multiemployer plan in the manner described in subdivision (i) of this 
subparagaph, the rules described in subparagraph (1) of this paragraph 
may be used for purposes of applying the section 415 limitations in 
connection with that participant.
    (iii) For rules relating to the limitation year for a multiemployer 
plan, see Sec. 1.415-2(b)(6). See also Sec. 1.415-8(e) for a special 
rule relating to the aggregation of multiemployer plans.
    (f) Rules relating to the effective date of section 415--(1) In 
general. Except as otherwise provided in this paragraph, Secs. 1.415-1 
through 1.415-10 are applicable for plan years beginning after 1975 and 
for limitation years ending with or within plan years beginning after 
1975. However, for all such plan years and limitation years through the 
plan year beginning before January 7, 1981, a reasonable interpretation 
of the rules set forth in section 415 of the Code and in Rev. Rul. 75-
481, 1975-2 C.B. 188, may be relied upon.
    (2) Plan year for certain annuity contracts and individual 
retirement plans. For purposes of section 415 and Secs. 1.415-1 through 
1.415-10--
    (i) An annuity contract described in section 403(b) shall be 
considered to have a plan year coinciding with the taxable year of the 
individual on whose behalf the contract has been purchased, and
    (ii) An individual retirement plan (as described in section 
7701(a)(37)) shall be considered to have a plan year coinciding with the 
taxable year of the individual on whose behalf the plan is maintained,

unless the individual demonstrates to the satisfaction of the 
Commissioner that a different 12 month period should be considered to be 
the plan year.
    (3) Special effective date for certain accounts, annuities and bonds 
established for non-employed spouse. Nothwithstanding subparagraph (1) 
of this paragraph, the provisions of section 415(a)(3) and paragraph (c) 
of this section are not applicable until taxable years beginning after 
December 31, 1976.
    (4) Special rules for certain defined contribution plans with 
respect to the first limitation year to which section 415 applies. In 
the case of a defined contribution plan whose plan year does not 
coincide with the limitation year, the rules of this subparagraph shall 
be effective with respect to applying the limitations described in 
section 415(c) and Sec. 1.415-6 for the first limitation year to which 
section 415 and Secs. 1.415-1 through 1.415-10 apply.
    (i) Annual additions (as defined in section 415(c)(2) and 
Sec. 1.415-6(b)) which are allocated under the plan prior to the first 
day of the first plan year to which section 415 and Secs. 1.415-1 
through 1.415-10 are effective do not have to be taken into account.
    (ii) The amount of compensation (as defined in Sec. 1.415-2(d)) 
taken into account in applying the limitations may include compensation 
for the entire limitation year.
    (5) Special effective date for special benefit limitation with 
respect to certain collectively bargained plans. Notwithstanding 
subparagraph (1) of this paragraph, section 415(b)(7) is not applicable 
until limitation years beginning after December 31, 1978.
    (6) Special effective date for excess contributions to section 
403(b) annuity contracts. (i) Notwithstanding subparagraph (1) of this 
paragraph, the provisions of Sec. 1.415-6(e)(1)(ii) (relating to the 
manner in which contributions to a section 403(b) annuity contract which 
exceed the limitations of section 415(c)(1) are treated) are only 
applicable to taxable years beginning after January 24, 1980.
    (ii) For all prior taxable years for which the limitations of 
section 415 are applicable to section 403(b) annuity contracts, any 
contribution to the account of an individual under a section 403(b) 
annuity contract for a taxable year which exceeds the limitations of

[[Page 677]]

section 415(c)(1), instead of being treated in the manner described in 
Sec. 1.415-6(e)(1)(ii), shall reduce the exclusion allowance under 
section 403(b)(2) for such taxable year to the extent of the excess.
    (7) Special effective date for rules relating to change of 
limitation year. Notwithstanding subparagraph (1) of this paragraph, the 
provisions of Sec. 1.415-2(b)(4) (relating to the effect of a change of 
the limitation year) are required to be applied only for changes in 
limitation years which occur after January 7, 1981. These provisions may 
also be used for all prior changes in limitation years. However, if the 
provisions of Sec. 1.415-2(b)(4) are not used for changes in limitation 
years which occur prior to January 7, 1981, the requirements of 
Sec. 2.01(4) of Rev. Rul. 75-481, 1975-2 C.B. 188, shall be applicable 
with respect to such changes.
    (8) Special effective date for TRASOP's. The limitations of section 
415 apply to an Employee Stock Ownership Plan under section 301(d) of 
the Tax Reduction Act of 1975 (``TRASOP''). The earliest date on which 
the first plan year of a TRASOP may begin is January 22, 1974. 
Therefore, notwithstanding subparagraph (1) of this paragraph, the 
limitations of section 415 are applicable for TRASOP plan years 
beginning before 1975 and for limitation years ending with or within 
plan years beginning before 1975. However, the aggregation rules of 
Sec. 1.415-8 do not apply to a limitation year of a TRASOP ending with 
or within a plan year beginning before 1975.
    (9) Transitional rules. For special transitional rules, see--
    (i) Section 1.415-4 (relating to a transitional rule for defined 
benefit plans),
    (ii) Section 1.415-7(b)(2) (relating to the defined benefit plan 
fraction applicable to certain participants),
    (iii) Section 1.415-7(d) (relating to transitional rules for the 
defined contribution plan fraction), and
    (iv) Section 1.415-7(g) (relating to a special rule for certain 
plans in effect on September 2, 1974).
    (g) Supersession. Section 11.415(c)(4)-1 (relating to special 
elections for section 403(b) annuity contracts purchased by educational 
organizations, hospitals and home health service agencies) of the 
Temporary Income Tax Regulations under the Employee Retirement Income 
Security Act of 1974 is superseded by this section and Secs. 1.415-2 
through 1.415-10.

[T.D. 7748, 46 FR 1697, Jan. 7, 1981]



Sec. 1.415-2  Definitions and special rules.

    (a) General application. Unless otherwise provided in the 
appropriate section, for purposes of Secs. 1.415-1 through 1.415-10, the 
following definitions and special rules shall apply.
    (b) Limitation year--(1) In general. (i) Unless the election 
described in subdivision (ii) of this subparagraph is made, the 
limitation year, with respect to any qualified plan maintained by the 
employer, is the calendar year.
    (ii) Instead of using the calendar year, an employer may elect to 
use any other consecutive twelve month period as the limitation year. 
This includes a fiscal year with an annual period varying from 52 to 53 
weeks, so long as the fiscal year satisfies the requirements of section 
441(f). If the case of a group of employers which constitute either a 
controlled group of corporations (within the meaning of section 414(b) 
as modified by section 415(h)) or trades or businesses (whether or not 
incorporated) which are under common control (within the meaning of 
section 414(c) as modified by section 45(h)), the election to use a 
consecutive twelve month period other than the calendar year as the 
limitation year must be made by all members of the group that maintain a 
qualified plan.
    (2) Method of election to use a limitation year other than the 
calendar year or to change limitation year. (i) The election described 
in subparagraph (1)(ii) of this paragraph shall be made by the adoption 
of a written resolution by the employer. This requirement is satisfied 
if the election is made in connection with the adoption, by the 
employer, of the plan or any amendments to such plan.
    (ii) This resolution will not be considered a change of the 
limitation year, if it is adopted or modified on or before the later of 
the adoption date of the first amendment conforming an existing plan to 
the Employee Retirement Income Security Act of 1974, or December 31, 
1976.

[[Page 678]]

    (3) Election of multiple limitation years. Any employer that 
maintains more than one qualified plan may elect to use different 
limitation years for each such plan in accordance with rules determined 
by the Commissioner. The rule described in this subparagraph also 
applies to a controlled group of employers (within the meaning of 
section 414 (b) or (c), as modified by section 415(h)).
    (4) Effect of change of limitation year. (i) Once established, the 
limitation year may be changed only by making the election in the manner 
described in subparagraph (2) of this paragraph.
    (ii) Any change in the limitation year must be a change to a twelve-
month period commencing with any day within the current limitation year.
    (iii) For purposes of this paragraph, the limitations of section 415 
are to be applied in the normal manner to the new limitation year. 
Moreover, the limitations of section 415 are to be separately applied to 
a ``limitation period'' which begins with the first day of the current 
limitation year and which ends on the day before the first day of the 
first limitation year for which the change is effective. The dollar 
limitation with respect to this limitation period is determined by 
multiplying (A) the applicable dollar limitation for the calendar year 
in which the limitation period ends by (B) a fraction, the numerator of 
which is the number of months (including any fractional parts of a 
month) in the limitation period, and the denominator of which is 12. 
This adjustment of the dollar limitation only applies to a defined 
contribution plan.
    (iv) For a special effective date with respect to this paragraph, 
see Sec. 1.415-1(f)(7).
    (v) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. In 1981, an employer with a qualified defined contribution 
plan using the calendar year as the limitation year elects to change the 
limitation year to a period beginning July 1 and ending June 30. Because 
of this change, the plan must satisfy the limitations of section 415(c) 
for the limitation period beginning January 1, 1981 and ending June 30 
of that year. In applying the limitations of section 415(c) to this 
limitation period, the amount of compensation taken into account may 
only include compensation for this period. Furthermore, the dollar 
limitation for this period is the otherwise applicable dollar limitation 
for calendar year 1981, multiplied by \6/12\.

    (5) Limitation year for years prior to effective date. The 
limitation year for all years prior to the effective date of section 415 
is the consecutive twelve-month period which corresponds to the first 
limitation year of a plan after the effective date of section 415. (See 
paragraph (b)(1) of this section for rules relating to the determination 
of a plan's limitation year.)
    (6) Limitation year for multiemployer plans. In the case of a 
multiemployer plan (as defined in section 414(f)), the limitation year 
is the calendar year unless the plan administrator elects otherwise 
under paragraph (b)(2) of this section.
    (7) Limitation year for individuals on whose behalf section 403(b) 
annuity contracts have been purchased. (i) The limitation year of an 
individual on whose behalf a section 403(b) annuity contract has been 
purchased by an employer is determined in the following manner.
    (ii) If the individual is not in control (within the meaning of 
section 414 (b) or (c) as modified by section 415(h)) of any employer, 
the limitation year is the calendar year. However, the individual may 
elect to change the limitation year to another twelve-month period. To 
do this, the individual must attach a statement to his income tax return 
filed for the taxable year in which the change is made. Any change in 
the limitation year must comply with the rules set forth in paragraph 
(b)(4) of this section.
    (iii) If the individual is in control (within the meaning of section 
414 (b) or (c) as modified by section 415(h)) of an employer, the 
limitation year is to be the limitation year of that employer.
    (8) Limitation year for individuals on whose behalf individual 
retirement plans are maintained. The limitation year of an individual on 
whose behalf an individual retirement plan (as described in section 
7701(a)(37)) is maintained shall be determined in the manner described 
in paragraph (b)(7) of this section.
    (c) Defined benefit and defined contribution plan--(1) Defined 
benefit plan.

[[Page 679]]

A ``defined benefit plan'' means a plan described in section 414(j).
    (2) Defined contribution plan. A ``defined contribution plan'' means 
a plan described in section 414(i). It includes a money purchase pension 
plan (as described in Sec. 1.401-1(b)(1)(i)), such as a target benefit 
plan (as described in Sec. 1.410(a)-4(a)(1)). A hybrid plan (as defined 
in section 414(k)) is to be treated as a defined contribution plan to 
the extent that benefits payable under the plan are based upon the 
individual account of the participant.
    (d) Compensation--(1) General definition. Except as otherwise 
provided, compensation within the meaning of section 415(c)(3) includes 
all remuneration described in paragraph (d)(2) of this section and 
excludes all other forms of remuneration. Paragraph (d)(3) of this 
section provides examples of types of remuneration not includible in 
compensation within the meaning of section 415(c)(3). Paragraphs (d)(4) 
and (d)(5) of this section provide rules regarding the payment of 
compensation in the limitation year. Paragraph (d)(6) of this section 
provides a special rule for determining the compensation of employees of 
controlled groups or affiliated service groups. Paragraph (d)(7) of this 
section provides a special rule for applying the limitations of section 
415(c) when a section 403(b) annuity is aggregated with a qualified plan 
of a controlled employer. Paragraphs (d)(8) and (d)(9) of this section 
are reserved for special rules for leased employees and for permanent 
and total disability, respectively. Paragraphs (d)(10) and (d)(11) of 
this section provide additional definitions of compensation that are 
treated as satisfying section 415(c)(3). Paragraph (d)(12) of this 
section permits optional use of prior regulations. Paragraph (d)(13) of 
this section provides authority to the Commissioner to provide further 
additional definitions of compensation that satisfy section 415(c)(3).
    (2) Items includible as compensation. For purposes of applying the 
limitations of section 415, the term ``compensation'' includes all of 
the following--
    (i) The employee's wages, salaries, fees for professional services, 
and other amounts received (without regard to whether or not an amount 
is paid in cash) for personal services actually rendered in the course 
of employment with the employer maintaining the plan to the extent that 
the amounts are includible in gross income (including, but not limited 
to, commissions paid salesmen, compensation for services on the basis of 
a percentage of profits, commissions on insurance premiums, tips, 
bonuses, fringe benefits, and reimbursements or other expense allowances 
under a nonaccountable plan (as described in Sec. 1.62-2(c)).
    (ii) In the case of an employee who is an employee within the 
meaning of section 401(c)(1) and the regulations thereunder, the 
employee's earned income (as described in section 401(c)(2) and the 
regulations thereunder).
    (iii) Amounts described in sections 104(a)(3), 105(a), and 105(h), 
but only to the extent that these amounts are includible in the gross 
income of the employee.
    (iv) Amounts paid or reimbursed by the employer for moving expenses 
incurred by an employee, but only to the extent that at the time of the 
payment it is reasonable to believe that these amounts are not 
deductible by the employee under section 217.
    (v) The value of a non-qualified stock option granted to an employee 
by the employer, but only to the extent that the value of the option is 
includible in the gross income of the employee for the taxable year in 
which granted.
    (vi) The amount includible in the gross income of an employee upon 
making the election described in section 83(b).

Paragraphs (d)(2)(i) and (d)(2)(ii) of this section include foreign 
earned income (as defined in section 911(b)), whether or not excludable 
from gross income under section 911. Compensation described in paragraph 
(d)(2)(i) of this section is to be determined without regard to the 
exclusions from gross income in sections 931 and 933. Similar principles 
are to be applied with respect to income subject to sections 931 and 933 
in determining compensation described in paragraph (d)(2)(ii) of this 
section.
    (3) Items not includible as compensation. The term ``compensation'' 
does not include items such as--

[[Page 680]]

    (i) Contributions made by the employer to a plan of deferred 
compensation to the extent that, before the application of the section 
415 limitations to that plan, the contributions are not includible in 
the gross income of the employee for the taxable year in which 
contributed. In addition, employer contributions made on behalf of an 
employee to a simplified employee pension described in section 408(k) 
are not considered as compensation for the taxable year in which 
contributed. Additionally, any distributions from a plan of deferred 
compensation are not considered as compensation for section 415 
purposes, regardless of whether such amounts are includible in the gross 
income of the employee when distributed. However, any amounts received 
by an employee pursuant to an unfunded nonqualified plan is permitted to 
be considered as compensation for section 415 purposes in the year the 
amounts are includible in the gross income of the employee.
    (ii) Amounts realized from the exercise of a non-qualified stock 
option, or when restricted stock (or property) held by an employee 
either becomes freely transferable or is no longer subject to a 
substantial risk of forfeiture (see section 83 and the regulations 
thereunder).
    (iii) Amounts realized from the sale, exchange or other disposition 
of stock acquired under a qualified stock option.
    (iv) Other amounts which receive special tax benefits, such as 
premiums for group-term life insurance (but only to the extent that the 
premiums are not includible in the gross income of the employee), or 
contributions made by an employer (whether or not under a salary 
reduction agreement) towards the purchase of an annuity contract 
described in section 403(b) (whether or not the contributions are 
excludable from the gross income of the employee).
    (4) Compensation in limitation year. The compensation (as defined in 
paragraph (d)(2) of this section) actually paid or made available to an 
employee within the limitation year is the compensation used for 
purposes of applying the limitations of section 415.
    (5) Election to use compensation accrued during limitation year--(i) 
Years beginning after December 31, 1991. For limitation years beginning 
after December 31, 1991, an employer may not use accrued compensation. 
Any election previously made to use accrued compensation is not valid 
for limitation years beginning after December 31, 1991.
    (ii) De minimis accrued compensation. Notwithstanding paragraph 
(d)(5)(i) of this section, an employer may include in compensation 
amounts earned but not paid in a year because of the timing of pay 
periods and pay days if these amounts are paid during the first few 
weeks of the next year, the amounts are included on a uniform and 
consistent basis with respect to all similarly situated employees, and 
no compensation is included in more than one limitation period. No 
formal election is required to include the accrued compensation 
permitted under this de minimis rule. The rule described in this 
paragraph (d)(5)(ii) does not apply to a section 403(b) annuity contract 
or to an individual retirement plan (as defined in section 7701(a)(37)).
    (iii) Years beginning before January 1, 1992. For limitation years 
beginning before January 1, 1992, instead of using the compensation 
actually paid or made available to an employee during the limitation 
year, an employer may elect to use the compensation accrued for an 
entire limitation year for purposes of applying the limitations of 
section 415. In the case of a group of employers that constitute either 
a controlled group of corporations (within the meaning of section 414(b) 
as modified by section 415(h)) or trades or businesses (whether or not 
incorporated) that are under common control (within the meaning of 
section 414(c) as modified by section 415(h)), the election to use 
accrued compensation must be made by all members of the group that 
maintain a qualified plan. Once an election is made, it remains in 
effect until it is revoked by the employer or group of employers. The 
rule described in this paragraph (d)(5)(iii) does not apply to a section 
403(b) annuity contract or to an individual retirement plan (as defined 
in section 7701(a)(37)).

[[Page 681]]

If, in a particular limitation year beginning before January 1, 1992, a 
previously effective election to use accrued compensation is revoked or 
an election to use accrued compensation is made, any amounts taken into 
account for compensation purposes for any preceding limitation year may 
not be counted again in determining compensation for the particular 
limitation year.
    (6) Special rule for employees of controlled groups of corporations, 
etc. In the case of an employee of two or more corporations which are 
members of a controlled group of corporations (as defined in section 
414(b) as modified by section 415(h)), the term ``compensation'' for 
such employee includes compensation from all employers that are members 
of the group, regardless of whether the employee's particular employer 
has a qualified plan. This special rule is also applicable to an 
employee of two or more trades or businesses (whether or not 
incorporated) that are under common control (as defined in section 
414(c) as modified by section 415(h)), to an employee of two or more 
members of an affiliated service group as defined in section 414(m), and 
to an employee of two or more members of any group of employers who must 
be aggregated and treated as one employer pursuant to section 414(o).
    (7) Special rule when section 403(b) annuity is aggregated with 
qualified plan of controlled employer. If a section 403(b) annuity 
contract is combined or aggregated with a qualified plan of a controlled 
employer in accordance with either Sec. 1.415-7(h)(2)(i) or Sec. 1.415-
8(d)(2), the following rules apply:
    (i) In applying separately the limitations of section 415 (b) or (c) 
to the qualified plan and the limitations of section 415(c) and the 
exclusion allowance of section 403(b)(2)(A) to the section 403(b) 
annuity, compensation from the controlled employer may not be aggregated 
with compensation from the employer purchasing the section 403(b) 
annuity.
    (ii) However, in applying the limitations of section 415(c) in 
connection with the combining of the section 403(b) annuity with a 
qualified defined contribution plan or section 415(e) in connection with 
the aggregating of the section 403(b) annuity with a qualified defined 
benefit plan, the total compensation from both employers may be taken 
into account.
    (8) Special rules for leased employees. [Reserved]
    (9) Special rules for permanent and total disability. [Reserved]
    (10) Safe harbor rule with respect to plan's definition of 
compensation. If a plan defines compensation for purposes of applying 
the limitations of section 415 to include only those items specified in 
paragraph (d)(2)(i) of this section and to exclude all those items 
listed in paragraph (d)(3) of this section, if applicable, the plan will 
automatically be considered to be using a definition of compensation 
which satisfies section 415(c)(3).
    (11) Alternative definition of compensation. In lieu of defining 
compensation in accordance with paragraphs (d)(2) and (d)(3) of this 
section, for purposes of applying the limitations of section 415 in the 
case of employees other than self-employed individuals treated as 
employees within the meaning of section 401(c)(1), a plan may define 
compensation using either of the following definitions used for wage 
reporting purposes, as modified herein, and the definition will be 
considered automatically to satisfy section 415(c)(3):
    (i) Information required to be reported under sections 6041, 6051 
and 6052. Compensation is defined as wages within the meaning of section 
3401(a) and all other payments of compensation to an employee by his 
employer (in the course of the employer's trade or business) for which 
the employer is required to furnish the employee a written statement 
under sections 6041(d), 6051(a)(3), and 6052. See Secs. 1.6041-1(a), 
1.6041-2(a)(1), 1,6052-1, and 1.6052-2, and also see Sec. 31.6051-
1(a)(1)(i)(C) of this chapter. This definition of compensation may be 
modified to exclude amounts paid or reimbursed by the employer for 
moving expenses incurred by an employee, but only to the extent that at 
the time of the payment it is reasonable to believe that these amounts 
are deductible by the employee under section 217. Compensation under 
this paragraph (d)(11)(i) must be determined without regard to any rules

[[Page 682]]

under section 3401(a) that limit the remuneration included in wages 
based on the nature or location of the employment or the services 
performed (such as the exception for agricultural labor in section 
3401(a)(2)).
    (ii) Section 3401(a) wages. Compensation is defined as wages within 
the meaning of section 3401(a) (for purposes of income tax withholding 
at the source) but determined without regard to any rules that limit the 
remuneration included in wages based on the nature or location of the 
employment or the services performed (such as the exception for 
agricultural labor in section 3401(a)(2)).
    (12) Optional use of prior regulations. For years beginning before 
September 19, 1991, employers are permitted, in defining compensation 
for purposes of section 415(c)(3), to comply with either the provisions 
of this Sec. 1.415-2(d) or the prior regulation provisions of 
Sec. 1.415-2(d). See Sec. 1.415-2(d) as contained in the CFR edition 
revised as of April 1, 1991.
    (13) Additional rules. The Commissioner may in revenue rulings, 
notices, and other guidance of general applicability provide additional 
definitions of compensation that are treated as satisfying section 
415(c)(3).

[T.D. 7748, 46 FR 1698, Jan. 7, 1981, as amended by T.D. 8361, 56 FR 
47667, Sept. 19, 1991; 57 FR 10815, 10953, Mar. 31, 1992]



Sec. 1.415-3  Limitations for defined benefit plans.

    (a) General rules--(1) Maximum limitations. Under section 415(b) and 
this section, to satisfy the provisions of section 415(a) for any 
limitation year, the annual benefit (as defined in paragraph (b)(1)(i) 
of this section) to which a participant is entitled at any time under a 
defined benefit plan may not, during the limitation year, exceed the 
lesser of--
    (i) $75,000, or
    (ii) 100 percent of the participant's average compensation for his 
high 3 years of service.

As required in Sec. 1.415-1(d), in order to satisfy the limitations on 
benefits of this section, the plan provisions must preclude the 
possibility that any annual benefit exceeding these limitations will be 
payable at any time. Thus, a plan may fail to satisfy the limitations of 
this section even though no participant has actually accrued a benefit 
in excess of these limitations.
    (2) Adjustment to dollar limitation. The dollar limitation described 
in section 415(b)(1)(A) and paragraph (a)(1)(i) of this section is 
adjusted for cost of living increases under section 415(d) and 
Sec. 1.415-5(a). The adjusted figure is effective as of January 1 of 
each calendar year and is applicable to limitation years that end during 
that calendar year.
    (3) Average compensation for high 3 years of service. For purposes 
of applying the limitation on benefits described in this section, a 
participant's high 3 years of service is the period of 3 consecutive 
calendar years (or, the actual number of consecutive years of employment 
for those employees who are employed for less than 3 consecutive years 
with the employer) during which the employee had the greatest aggregate 
compensation (as defined in Sec. 1.415-2(d)) from the employer. For 
purposes of this subparagraph, in determining a participant's high 3 
years, the plan may use any 12 month period instead of the calendar year 
provided that it is uniformly and consistently applied.
    (b) Definitions of terms--(1) Annual benefit. (i) The term ``annual 
benefit'' means a benefit which is payable annually in the form of a 
straight life annuity under a plan. Such benefit does not include any 
benefits attributable to either employee contributions or rollover 
contributions (as defined in sections 402(a)(5), 403(a)(4), 408(d)(3) 
and 409(b)(3)(C)). Additionally, in applying the limitations on benefits 
described in paragraph (a)(1) of this section to the annual benefit of a 
participant, it is immaterial if the participant works beyond the normal 
retirement age as determined under the terms of the plan. Thus, for 
example, if an individual, who is subject to the dollar limitation of 
section 415(b)(1)(A) ($110,625 for 1980), retires in 1980 after working 
past the plan's normal retirement age of 65, the plan may only provide 
such individual with an annual benefit of $110,625 in 1980 and not the 
actuarial equivalent of the amount the individual would have been 
entitled to receive at age 65 in

[[Page 683]]

order to comply with the section 415(b) limitations.
    (ii) If the plan provides for a benefit which is not payable in the 
form of a straight life annuity, the benefit is adjusted in accordance 
with paragraph (c) of this section for purposes of applying the 
limitations on benefits described in paragraph (a)(1) of this section.
    (iii) If rollover contributions are made to the plan, the annual 
benefit attributable to these contributions is determined on the basis 
of reasonable actuarial assumptions. See paragraph (d) of this section 
for rules relating to employee contributions.
    (iv) For purposes of this paragraph, when there is a transfer of 
assets or liabilities from one qualified plan to another, the annual 
benefit attributable to the assets transferred does not have to be taken 
into account by the transferee plan in applying the limitations of 
section 415. The annual benefit payable on account of the transfer for 
any individual that is attributable to the assets transferred will be 
equal to the annual benefit transferred on behalf of such individual 
multiple by a fraction, the numerator of which is the total assets 
transferred and the denominator of which is the total liabilities 
transferred.
    (2) Retirement benefit. For purposes of this section, the term 
``retirement benefit'' means a benefit provided under the terms of a 
defined benefit plan which is subject to the limitations of section 
415(b) and this section.
    (c) Adjustment where form of benefit is other than straight life 
annuity--(1) In general. (i) Where a defined benefit plan provides a 
retirement benefit in any form other than a straight life annuity, the 
plan benefit is adjusted to a straight life annuity beginning at the 
same age which is the actuarial equivalent of such benefit in accordance 
with rules determined by the Commissioner. This adjustment is for 
purposes of applying the limitations on benefits described in paragraph 
(a)(1) of this section to the annual benefit of the participant.
    (ii) Examples of benefits that are not in the form of a straight 
life annuity are an annuity which includes a post-retirement death 
benefit and an annuity providing for a guaranteed number of payments.
    (2) Certain beneifts to which no adjustment is required. For 
purposes of the adjustment described in subparagraph (1) of this 
paragraph, the following values are not taken into account:
    (i) The value of a qualified joint and survivor annuity (as defined 
in section 401(a)(11)(G)(iii) and the regulations thereunder) provided 
by the plan to the extent that such value exceeds the sum of (A) the 
value of a straight life annuity beginning on the same date and (B) the 
value of any post-retirement death benefits which would be payable even 
if the annuity was not in the form of a joint and survivor annuity.
    (ii) The value of benefits that are not directly related to 
retirement benefits (such as pre-retirement disability and death 
benefits and post-retirement medical benefits).
    (iii) The value of benefits provided by the plan which reflect post-
retirement cost of living increases to the extent that such increases 
are in accordance with section 415(d) and Sec. 1.415-5.
    (3) Examples. The provisions of subparagraph (2)(i) of this 
paragraph may be illustrated by the following examples:

    Example (1). (i) Corporation ABC maintains a defined benefit plan 
that provides a benefit in the form of a joint and 100% suvivor annuity 
with a 10 year certain feature. The value of this benefit is equal to 
126% of the value of the same amount payable as a straight life annuity 
beginning on the same date. If the benefit were payable in the form of a 
joint and 100% survivor annuity, without a 10 year certain feature, its 
value would be equal to only 123% of the value of the same amount 
payable as a straight life annuity beginning on the same date. If the 
benefit were payable with a 10 year certain feature, but without the 
joint and 100% survivor aspect, its value would equal 110% of the value 
of the same amount payable as a straight life annuity beginning on the 
same date. Thus, the value of the postretirement death benefits which 
would be payable even if the annuity were not in the form of a joint and 
survivor annuity is 10%.
    (ii) Under subparagraph (2)(i) of this paragraph, the values which 
may be excluded for purposes of the adjustment required by subparagraph 
(1) of this paragraph are as follows: The value of the joint and 
survivor annuity provided by the plan (126%) to the extent that such 
value exceeds the sum of, the value of the straight life annuity 
beginning

[[Page 684]]

on the same date (100%) and the value of the post-retirement death 
benefits (10%). Therefore, the value of the joint and survivor annuity 
provided by the plan exceeds the value of the straight life annuity with 
the 10 year certain feature by 16% (126%-110%).
    (iii) Although 16% of the excess benefit attributable to the annity 
provided by this plan may, consequently, be ignored (because this 
represents the value added to the 10 year certain and life annuity 
benefit by the joint survivor feature), 10% of such excess benefit (the 
value added to the straight life annuity benefit by the 10 year certain 
feature) must be taken into account for purposes of adjusting the 
benefit under the plan to an actuarially equivalent straight life 
annuity. Thus, for example, if ABC Corporation were to provide a benefit 
equal to 95% of a participant's compensation for the high three years of 
service, the limitation of section 415(b)(1)(B) would be exceeded 
because the benefit under the plan would be the actuarial equivalent of 
a straight life annuity equal to 105% of a participant's compensation 
for the high three years.
    Example (2). Corporation XYZ maintains a nondiscriminatory defined 
benefit plan that provides a benefit which is equal to 100% of a 
participant's compensation for his high 3 years of service. For married 
participants, the benefit is payable in the form of a joint and 100% 
survivor annuity. While for participants who are not married, the 
benefit is payable in the form of a straight life annuity. The plan also 
provides that married participants can elect to receive their benefits 
in the form of a lump sum distribution which is the actuarial equivalent 
of a joint and 100% survivor annuity. The special rule set forth in 
subparagraph (2)(i) of this paragraph only applies, however, if the 
benefit is payable in the form of a qualified joint and survivor 
annuity. Any other forms of optional benefits must be adjusted to a 
straight life annuity in accordance with subparagraph (1) of this 
paragraph. Accordingly, because the benefit payable under the plan in 
the form of a lump sum distribution is the actuarial equivalent of a 
straight life annuity which is greater than 100% of a participant's 
compensation for his high 3 years, the limitation of section 
415(b)(1)(B) has been exceeded.

    (d) Employee contributions--(1) Mandatory contributions. Where a 
defined benefit plan provides for mandatory employee contributions (as 
defined in section 411(c)(2)(C)), the annual benefit attributable to 
such contributions is not taken into account for purposes of applying 
the limitations on benefits described in paragraph (a) of this section. 
The annual benefit attributable to mandatory contributions is determined 
by using the factors described in section 411(c)(2)(B) and the 
regulations thereunder, regardless of whether section 411 applies to 
that plan.
    However, the mandatory employee contributions are considered a 
separate defined contribution plan maintained by the employer that is 
subject to the limitations on contributions and other additions 
described in Sec. 1.415-6. (See Sec. 1.415-7 for provisions relating to 
the limitations applicable where an employer maintains a defined benefit 
and defined contribution plan for the same employee.)
    (2) Voluntary contributions. Where a defined benefit plan provides 
for voluntary employee contributions, these contributions are considered 
a separate defined contribution plan maintained by the employer which is 
subject to the limitations on contributions and other additions 
described in Sec. 1.415-6. (See Sec. 1.415-7 for provisions relating to 
the limitations applicable where an employer maintains a defined benefit 
and defined contribution plan for the same employee.)
    (3) Example: The provisions of this paragraph may be illustrated by 
the following example:

    Example. A is a participant in a defined benefit plan maintained by 
his employer. Under the terms of the plan A must make contributions to 
the plan in a stated amount to accrue benefits derived from employer 
contributions. These contributions are mandatory employee contributions 
within the meaning of section 411(c)(2)(C) and, thus, the annual benefit 
attributable to these contributions does not have to be taken into 
account for purposes of testing the annual benefit derived from employer 
contributions against the applicable limitation on benefits. However, 
these contributions are considered a separate defined contribution plan 
maintained by A's employer. Accordingly, with respect to the current 
limitation year: (1) the limitation on benefits (as described in 
paragraph (a)(1) of this section) is applicable to the annual benefit 
attributable to employer contributions to the defined benefit plan; (2) 
the limitation on contributions and other additions (as described in 
Sec. 1.415-6) is applicable to the defined contribution plan consisting 
of A's mandatory contributions; and (3) the provisions of Sec. 1.415-7 
(relating to the limitations where the employer maintains a defined 
benefit and defined contribution plan for the same employee) are 
applicable to the defined benefit and defined contribution plan in which 
A participates. These

[[Page 685]]

same limitations would also apply. If, instead of providing for 
mandatory employee contributions the plan permitted voluntary employee 
contributions, since both voluntary and mandatory employee contributions 
are treated as separate defined contribution plans maintained by the 
employer.

    (e) Adjustment where benefit begins before age 55. Where a defined 
benefit plan provides a retirement benefit beginning before age 55, the 
plan benefit is adjusted to the actuarial equivalent of a benefit 
beginning at age 55 in accordance with rules determined by the 
Commissioner. This adjustment is only for purposes of applying the 
dollar limitation described in section 415(b)(1)(A) to the annual 
benefit of the participant.
    (f) Total annual benefits not in excess of $10,000--(1) In general. 
The annual benefit (without regard to the age at which benefits 
commence) payable with respect to a participant under any defined 
benefit plan is not considered to exceed the limitations on benefits 
described in section 415(b)(1) and in paragraph (a)(1) of this section 
if--
    (i) The retirement benefits derived from employer contributions 
payable with respect to the participant under the plan and all other 
defined benefit plans of the employer do not in the aggregate exceed 
$10,000 for the limitation year, or for any prior limitation year, and
    (ii) The employer has not at any time, either before or after the 
effective date of section 415, maintained a defined contribution plan in 
which the participant participated.
    (2) Special rule with respect to participants in multiemployer 
plans. The special $10,000 exception set forth in subparagraph (1) of 
this paragraph is applicable to a participant in a multiemployer plan 
described in section 414(f) without regard to whether that participant 
ever participated in one or more other plans maintained by an employer 
who also maintains the multiemployer plan, provided that none of such 
other plans were maintained as a result of collective bargaining 
involving the same employee representative as the multiemployer plan.
    (3) Special rule with respect to employee contributions. For 
purposes of subparagraph (1)(ii) of this paragraph, if a defined benefit 
plan provides for employee contributions, whether voluntary or 
mandatory, these contributions will not be considered a separate defined 
contribution plan maintained by the employer. Thus, a contributory 
defined benefit plan may utilize the special dollar limitation provided 
for in this paragraph.
    (4) Computation of $10,000 amount. For purposes of subparagraph 
(1)(i) of this paragraph, the value of the retirement benefit payable 
under the plan is not adjusted upward for early retirement provisions 
and benefits which are not in the form of a straight life annuity 
(whether or not directly related to retirement benefits).
    (5) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example (1). B is a participant in a defined benefit plan maintained 
by this employer, X Corporation, which provides for a benefit payable in 
the form of a straight life annuity beginning at age 65. B's 
compensation for his high 3 years of service is $6,000. The plan does 
not provide for employee contributions and at no time has B been a 
participant in a defined contribution plan maintained by X. With respect 
to the current limitation year, B's retirement benefit under the plan is 
$9,500. Because B's retirement benefit does not exceed $10,000 and 
because B has at no time participated in a defined contribution plan 
maintained by X, the benefits payable under the plan are not considered 
to exceed the limitation on benefits otherwise applicable to B ($6,000). 
This result would remain the same, even if, under the terms of the plan, 
B's normal retirement age were age 50 or if the plan provided for 
employee contributions.
    Example (2). Assume the same facts as in example (1), except that 
the plan provides for a benefit payable in the form of a life annuity 
with a 10 year certain feature. Assume that after the adjustment 
described in paragraph (c) of this section, B's annual benefit under the 
plan for the current limitation year is $10,500. However, for purposes 
of applying the special rule provided in this paragraph for total 
benefits not in excess of $10,000, there is no adjustment required if 
the retirement benefit payable under the plan is not in the form of a 
straight life annuity. Therefore, because B's retirement benefit does 
not exceed $10,000, B may receive the full $9,500 benefit without the 
otherwise applicable benefit limitations of this section being exceeded.

    (g) Special rule for service of less than 10 years--(1) In general. 
Where a participant has less than 10 years of service

[[Page 686]]

with the employer at the time the participant begins to receive 
retirement benefits under the plan, the benefit limitations described in 
section 415(b) (1) and (4) and paragraphs (a)(1) and (f)(1) of this 
section are to be reduced by multiplying the otherwise applicable 
limitation by a fraction--
    (i) The numerator of which is the number of years of service with 
the employer as of, and including, the current limitation year, and
    (ii) The denominator of which is 10. For purposes of this 
subparagraph, the term ``year of service'' is to be determined on a 
reasonable and consistent basis.
    (2) Examples. The provision of this paragraph may be illustrated by 
the following examples:

    Example (1). C begins employment with Acme Corporation on January 1, 
1977, at the age of 58. Acme maintains only a noncontributory defined 
benefit plan which provides for a straight life annuity beginning at age 
65 and uses the calendar year for the limitation and plan year. Acme has 
never maintained a defined contribution plan. C becomes a participant in 
Acme's plan on January 1, 1978 and works through December 31, 1983, when 
he is age 65. C begins to receive benefits under the plan in 1984. C's 
average compensation for his high 3 years of service is $20,000. 
Furthermore, under the terms of Acme's plan, for purposes of computing 
C's nonforfeitable percentage in his accrued benefit derived from 
employer contributions, C has only 7 years of service with Acme (1977-
1983). Therefore, because C has less than 10 years of service with Acme 
at the time he begins to receive benefits under the plan, the maximum 
permissible annual benefit payable with respect to C is only $14,000 
($20,000 x 7/10).
    Example (2). Assume the same facts as in example (1), except that 
C's average compensation for his high 3 years is $8,000. Because C has 
less than 10 years of service with Acme at the time he begins to receive 
benefits, the maximum benefit payable with respect to C would be reduced 
to $5,600 ($8,000 x 7/10). However, the special rule for total benefits 
not in excess of $10,000, provided in paragraph (f) of this section, is 
applicable in this case. Accordingly, C may receive an annual benefit of 
$7,000 ($10,000 x 7/10) without the benefit limitations of this section 
being exceeded.
    Example (3). ABC corporation maintains a defined benefit plan. 
Instead of adjusting the benefit limitations in accordance with the 
method described in subparagraph (1) of this paragraph, the plan 
provides that the plan administrator may make the necessary adjustment 
by multiplying the otherwise applicable limitation by a fraction--(1) 
the numerator of which is the number of completed months of service with 
the employer, and (2) the denominator of which is 120. The plan further 
provides that a completed month of service with the employer is any 
calendar month in which the employee is credited with at least 83 hours 
of service. Provided that an hour of service is determined in a manner 
that is reasonable and consistent, the plan may use this alternative 
rule for making the adjustment required when a participant has less than 
10 years of service with the employer at the time he begins to receive 
benefits under the plan.

    (h) Benefits under certain collectively bargained plans. For a 
special rule affecting the compensation limitation described in section 
415(b)(1)(B) and paragraph (a)(1)(ii) of this section, see section 
415(b)(7). For a special effective date with respect to this rule, see 
Sec. 1.415-1(f)(5).

[T.D. 7748, 46 FR 1700, Jan. 7, 1981]



Sec. 1.415-4  Transitional rule for defined benefit plans.

    (a) In general. If all of the conditions described in paragraph (b) 
of this section are satisfied, the annual benefit payable to an 
individual who was a participant in a defined benefit plan at any time 
before October 3, 1973, will not be considered to exceed the limitations 
of section 415(b) and Sec. 1.415-3(a). In the case of an individual who 
was a participant in more than one defined benefit plan at any time 
before October 3, 1973, the annual benefit payable to that individual 
from each plan will be deemed not to exceed the limitations of section 
415(b) and Sec. 1.415-3(a) if the benefit from each plan satisfies all 
of the conditions described in paragraph (b) of this section.
    (b) Conditions for application of transitional rule. The conditions 
are--
    (1) The annual benefit payable to the participant does not exceed 
100 percent of that participant's annual rate of compensation (as 
defined in paragraph (c) of this section) on October 2, 1973, or, if 
earlier, as of the date the participant separated from the service of 
the employer.
    (2) The annual benefit payable to the participant does not exceed 
the annual benefit which would have been payable to the participant at 
any time if--

[[Page 687]]

    (i) All the terms and conditions of the plan which were actually in 
effect on October 2, 1973 (or if earlier, on the date the participant 
separated from the service of the employer) had remained in effect, and
    (ii) The participant's compensation taken into account for 
determining benefits under the plan for any period after October 2, 
1973, did not exceed his annual rate of compensation (as defined in 
paragraph (c) of this section) on that date.
    (3) The annual benefit payable to a participant who separated from 
the service of the employer before October 2, 1973, does not exceed the 
participant's nonforfeitable accrued benefit under the plan as of the 
date he separated from service.
    (c) Special rules--(1) Annual rate of compensation. For purposes of 
this section, a participant's annual rate of compensation for a 
particular calendar year shall be the greater of--
    (i) The participant's compensation for that calendar year as 
determined in accordance with the rules provided in Sec. 1.415-2(d), or
    (ii) The compensation which would be used to determine benefits 
under the plan if the employee separated from the service of the 
employer on October 2, 1973, or, if earlier, the employee's actual date 
of separation from the service of the employer.
    (2) Cost-of-living adjustments. (i) If the plan, as in existence on 
October 2, 1973, provided for a post-retirement cost of living 
adjustment to benefits, the adjustment may be taken into account in 
determining the participant's allowable benefit under paragraph (b) of 
this section. However, under paragraph (b)(2) of this section, if a plan 
is amended after October 2, 1973 to provide for cost-of-living benefit 
increases for retired participants, the transitional rule of this 
section will not apply to any increased benefit attributable to the 
amendment.
    (ii) Any cost-of-living increase in the dollar limitation described 
in section 415(b)(1)(A) under section 415(d) and Sec. 1.415-5(a) may be 
taken advantage of by an individual who is otherwise using the 
transitional rule set forth in this section. Thus, for example, if, due 
to cost-of-living increases under section 415(d) and Sec. 1.415-5(a), 
the dollar limitation for 1981 is greater than $110,625, to the extent 
allowed under section 415(b), a plan may provide that an individual who 
is otherwise receiving a benefit of $110,625 per year under the 
transitional rule of this section, may receive the greater amount in 
1981.
    (3) Retirement benefit beginning before age 55. If a defined benefit 
plan provides a retirement benefit beginning before age 55, no actuarial 
adjustment of the benefit which can be provided under the transitional 
rule of this section is required to be made.
    (4) Retirement benefit payable in a form other than a straight life 
annuity. If a defined benefit plan, as in existence on October 2, 1973, 
provided a retirement benefit in a form other than a straight life 
annuity, no actuarial adjustment (as otherwise required under 
Sec. 1.415-3(c)) of the benefit which can be provided under the 
transitional rule of this section is required to be made. However, if 
the plan is amended after October 2, 1973, to provide a benefit of 
greater value than the benefit provided under the plan as of October 2, 
1973, the transitional rule of this section will not apply to the 
increase in the value of the benefit attributable to the amendment. (See 
paragraph (b)(2)(i) of this section.)
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example (1). N, a participant in a noncontributory defined benefit 
plan maintained by his employer, retired on February 17, 1969, and 
became eligible to receive benefits under the plan. At that time, N had 
attained age 65, the normal retirement age under the plan. N's annual 
rate of compensation on February 17, 1969, was $90,000. Under the terms 
of the plan, as in effect on February 17, 1969, N was entitled to an 
annual benefit of $86,000, which was N's accrued nonforfeitable benefit 
as of that date. Because the annual benefit payable with respect to N 
(i) does not exceed 100 percent of N's compensation on February 17, 
1969, (ii) does not exceed the annual benefit to which N was entitled on 
retirement, and (iii) did not exceed N's nonforfeitable accrued benefit 
on retirement, the plan may provide an annual benefit of $86,000 with 
respect to N for limitation years to which section 415 applies without 
violating the limitations imposed by section 415(b) and Sec. 1.415-3.

[[Page 688]]

    Example (2). Assume the same facts as in example (1) except that on 
February 17, 1969, when N retired and became eligible to receive 
benefits under the plan, N had not attained the age of 55. Because the 
adjustment required under section 415(b)(2)(C) for retirement benefits 
beginning before age 55 is only applicable to the dollar limitation 
described in section 415(b)(1)(A), under paragraph (c)(3) of this 
section, no actuarial adjustment of the annual benefit of $86,000 
payable with respect to N is required to be made. Therefore, the plan 
may pay annual benefits of $86,000 to N, even though N retires and is 
eligible to receive benefits before age 55.

[T.D. 7748, 46 FR 1703, Jan. 7, 1981]



Sec. 1.415-5  Cost of living adjustments for defined benefit plans.

    (a) Dollar limitation--(1) In general. Under section 415(d)(1)(A), 
the dollar limitation described in section 415(b)(1)(A) applicable to 
defined benefit plans for limitation years to which section 415 applies 
is adjusted annually to take into account increases in the cost of 
living. The adjustment of the dollar limitation is made by multiplying 
an annual adjustment factor by $75,000. For purposes of this paragraph, 
the annual adjustment factor is to be determined by the Commissioner.
    (2) Effective date of adjustment. The adjusted dollar limitation 
applicable to defined benefit plans is effective as of January 1 of each 
calendar year and applies with respect to limitation years ending with 
or within that calendar year.
    (3) Application of adjusted figure. The adjusted dollar limitation 
is applicable to employees who are participants in a defined benefit 
plan and to employees who have retired or otherwise terminated their 
service under the plan with a nonforfeitable right to accrued benefits, 
regardless of whether they have actually begun to receive such benefits. 
However, for purposes of this subparagraph, the annual benefit payable 
to a terminated participant, which is otherwise limited by the dollar 
limitation, may only be increased in accordance with cost-of-living 
adjustments of the dollar limitation if the plan specifically provides 
for such post-retirement adjustments.
    (b) Average compensation for high 3 years of service limitation--(1) 
In general. Under section 415(d)(1)(C), with regard to participants who 
have separated from service with a nonforfeitable right to an accrued 
benefit, the compensation limitation described in section 415(b)(1)(B) 
applicable to limitation years to which section 415 applies may be 
adjusted annually to take into account increases in the cost of living. 
For any limitation year beginning after the separation occurs, the 
adjustment of the compensation limitation is made by multiplying the 
annual adjustment factor (as defined in paragraph (b)(2) of this 
section) by the compensation limitation applicable to the participant in 
the limitation year he separated from the service of the employer. In 
the case of a participant who has separated from service prior to the 
first limitation year to which section 415 applies, the cost-of-living 
adjustment of the compensation limitation under this paragraph for all 
limitation years prior to the effective date of section 415 is to be 
determined as provided by the Commissioner. For purposes of the 
adjustment described in this subparagraph, the annual benefit payable to 
a terminated participant, which is otherwise limited by the compensation 
limitation, may only be increased in accordance with cost-of-living 
adjustments of the compensation limitation if the plan specifically 
provides for such post-retirement adjustments.
    (2) Annual adjustment factor for compensation limitation. For any 
limitation year beginning after the separation occurs, the annual 
adjustment factor is a fraction, the numerator of which is the adjusted 
dollar limitation for the limitation year in which the compensation 
limitation is being adjusted and the denominator of which is the 
adjusted dollar limitation for the limitation year in which the 
participant separated from service. In determining the adjusted dollar 
limitation for purposes of computing the annual adjustment factor under 
this subparagraph, the rule provided in paragraph (a)(2) of this section 
(relating to the effective date of the adjusted dollar limitation) shall 
be applicable.
    (3) Example. The provisions of this paragraph may be illustrated by 
the following example:


[[Page 689]]


    Example. X is a participant in a qualified defined benefit plan 
maintained by his employer. The plan has a calendar year limitation 
year. Under the terms of the plan, X is entitled to a benefit consisting 
of a straight life annuity equal to 100 percent of X's compensation for 
his high 3 years of service. X's average compensation for his high 3 
years is $20,000. X separates from the service of his employer on 
October 3, 1980, with a nonforfeitable right to his accrued benefit, and 
begins to receive benefit payments on November 1, 1980. Assume that the 
adjusted dollar limitation for 1980 is $100,000 and that the adjusted 
dollar limitation for 1981 is $110,000. For the limitation year 
beginning January 1, 1981 (the first limitation year beginning after X 
separates from service), the compensation limitation applicable to X may 
be adjusted for cost of living increases by multiplying the annual 
adjustment factor by $20,000. The annual adjustment factor for this 
limitation year is a fraction, the numerator of which is $110,000 (the 
adjusted dollar limitation for the limitation year in which the 
compensation limitation is being adjusted) and the denominator of which 
is $100,000 (the adjusted dollar limitation for the limitation year in 
which X separates from service). Thus, for the limitation year beginning 
January 1, 1981, if the plan provides for post-retirement cost of living 
adjustments, X's maximum annual benefit could be increased to $22,000 
($110,000/$100,000 x $20,000).

    (c) Automatic cost of living adjustments of dollar limitation--(1) 
General rule. A defined benefit plan may include a provision which 
provides for an annual automatic cost-of-living adjustment of the dollar 
limitation described in section 415(b)(1)(A) in accordance with 
paragraph (a) of this section. However, the provision may only provide 
for scheduled annual increases in the dollar limitation which become 
effective no sooner than the date determined in accordance with 
paragraph (a)(2) of this section.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Plan A is a defined benefit plan. Effective January 1, 
1976, the plan was amended to limit all participants' annual plan 
benefits, determined on a straight life annuity basis, to $75,000. The 
amendment also provides that, ``as of January 1 of each calendar year, 
the dollar limitation as determined by the Commissioner of Internal 
Revenue for that calendar year will become effective as the Maximum 
Permissible Dollar Amount of the plan for that calendar year. The 
Maximum Permissible Dollar Amount for a calendar year applies to 
limitation years ending with or within that calendar year.'' The 
amendment providing for an automatic cost-of-living adjustment of the 
dollar limitation of Plan A is an example of a provision which satisfies 
the requirements of subparagraph (1) of this paragraph.

[T.D. 7748, 46 FR 1704, Jan. 7, 1981]



Sec. 1.415-6  Limitation for defined contribution plans.

    (a) General rules--(1) Maximum limitations. Under section 415(c) and 
this section, to satisfy the provisions of section 415(a) for any 
limitation year, the annual additions (as defined in paragraph (b) of 
this section credited to the account of a participant in a defined 
contribution plan (as defined in section 414(i))) for the limitation 
year may not exceed the lesser of--
    (i) $25,000, or
    (ii) 25 percent of the participant's compensation (as defined in 
subparagraph (3) of this paragraph) for the limitation year.
    (2) Adjustment to dollar limitation. The dollar limitation described 
in section 415(c)(1)(A) and subparagraph (1)(i) of this paragraph is 
adjusted for cost of living increases under section 415(d) and paragraph 
(d) of this section. The adjusted figure is effective as of January 1 of 
each calendar year and applies to limitation years that end during that 
calendar year.
    (3) Participant's compensation. For purposes of this section, the 
term ``participant's compensation'' for any limitation year has the same 
meaning as set forth in Sec. 1.415-2(d). The term ``participant's 
compensation'' includes all compensation actually paid or made available 
to the individual for the entire limitation year even though the 
individual may not have been a participant for the entire limitation 
year.
    (4) Section 403(b) annuity contracts. For special rules with respect 
to section 403(b) annuity contracts purchased by educational 
organizations, hospitals and home health service agencies, see paragrpah 
(e) of this section.
    (b) Annual additions--(1) In general--(i) Limitation years beginning 
after December 31, 1986. For limitation years beginning after December 
31, 1986, or such later date provided in paragraph (b)(1)(iii) of this 
section, the term ``annual addition'' means, for purposes of

[[Page 690]]

this section, the sum, credited to a participant's account for any 
limitation year, of:
    (A) Employer contributions;
    (B) Employee contributions; and
    (C) Forfeitures.

Contributions do not fail to be annual additions merely because they are 
excess deferrals, excess contributions, or excess aggregate 
contributions or merely because excess contributions or excess aggregate 
contributions are corrected through distribution or recharacterization. 
Excess deferrals that are distributed in accordance with Sec. 1.402(g)-
1(e) (2) or (3) are not annual additions.
    (ii) Limitation years beginning before January 1, 1987. For 
limitation years beginning before January 1, 1987, or such later date 
provided in paragraph (b)(1)(iii) of this section, the term ``annual 
addition'' means, for purposes of this section, the sum, credited to a 
participant's account for any limitation year, of:
    (A) Employer contributions;
    (B) The lesser of the amount of employee contributions in excess of 
6 percent of compensation (as defined in paragraph (a)(3) of this 
section) for the limitation year, or one-half of the employee 
contributions for that year; and
    (C) Forfeitures.
    (iii) Certain collectively bargained plans. In the case of a plan 
maintained pursuant to one or more collective bargaining agreements 
between employee representatives and one or more employers ratified 
before March 1, 1986, for contributions or benefits pursuant to a 
collective bargaining agreement, the date specified in this paragraph 
is:
    (A) September 31, 1991, in the case of paragraph (b)(1)(i) of this 
section; and
    (B) October 1, 1991, in the case of paragraph (b)(1)(ii) of this 
section.
    (2) Employer contributions. (i) For purposes of paragraph (b)(1)(i) 
of this section, the term ``annual additions'' includes employer 
contributions which are made under the plan. Furthermore, the 
Commissioner may in an appropriate case, considering all of the facts 
and circumstances treat transactions between the plan and the employer 
or certain allocations to participants' accounts as giving rise to 
annual additions.
    (ii) If, in a particular limitation year, an employer contributes an 
amount to a participant's account because of an erroneous forfeiture in 
a prior limitation year, or because of an erroneous failure to allocate 
amounts in a prior limitation year, the contribution will not be 
considered an annual addition with respect to the participant for that 
particular limitation year, but will be considered an annual addition 
for the limitation year to which it relates. An example of a situation 
in which an employer contribution might occur under the circumstances 
described in the preceding sentence is a retroactive crediting of 
service for an employee under 29 CFR 2530.200(b)-2(a)(3) (regulations 
promulgated by the Department of Labor) in accordance with an award of 
back pay. For purposes of this subdivision, if the amount so contributed 
in the particular limitation year takes into account actual investment 
gains attributable to the period subsequent to the year to which the 
contribution relates, the portion of the total contribution which 
consists of such gains is not considered as an annual addition for any 
limitation year. The rule described in this subdivision is only 
applicable for purposes of applying the limitations of section 415.
    (iii) The restoration of an employee's accrued benefits by the 
employer in accordance with section 411(a)(3)(D) or section 411(a)(7)(C) 
will not be considered an annual addition for the limitation year in 
which the restoration occurs. (See Sec. 1.411(a)-7(d)(6)(iii)(B).)
    (iv) The transfer of funds from one qualified plan to another will 
not be considered an annual addition for the limitation year in which 
the transfer occurs.
    (v) In the case of a defined contribution plan (such as a money 
purchase pension plan) to which an employer makes a contribution in 
order to reduce an accumulated funding deficiency (as defined in section 
412(a)), the contribution will be considered an annual addition for the 
limitation year when the contribution was otherwise required to have 
been made. The special rule provided in the preceding sentence is 
available however, only if the contribution is allocated to those 
participants who would have received an

[[Page 691]]

addition if the contribution had been timely made. For purposes of 
determining the amount of the annual addition under this subdivision, 
any reasonable amount of interest paid by the employer is disregarded. 
However, any interest paid by the employer that is in excess of a 
reasonable amount, as determined by the Commissioner, is taken into 
account as an annual addition for the limitation year when the 
contribution was otherwise required to have been made.
    (vi) In the case of a defined contribution plan (such as a money 
purchase pension plan) for which there has been a waiver of the minimum 
funding standard in a prior limitation year in accordance with section 
412(d), that portion of an employer contribution in a subsequent 
limitation year which, if not for the waiver, would have otherwise been 
required in the prior limitation year under section 412(a) will be 
considered an annual addition for the prior limitation year. For 
purposes of determining the amount of such annual addition for the prior 
limitation year, any reasonable amount of interest paid by the employer 
in addition to the actual make-up contribution is disregarded. However, 
any interest paid by the employer that is in excess of a reasonable 
amount, as determined by the Commissioner, is taken into account as an 
annual addition for the prior limitation year.
    (3) Employee contributions. For purposes of paragraph (b)(1)(ii) of 
this section, the term ``annual additions'' includes, to the extent 
employee contributions would otherwise be taken into account under this 
section as an annual addition, mandatory employee contributions (as 
defined in section 411(c)(2)(C) and the regulations thereunder) as well 
as voluntary employee contributions. The term ``annual additions'' does 
not include--
    (i) Rollover contributions (as defined in section 402(a)(5), 
403(a)(4), 408(d)(3) and 409(b)(3)(C)),
    (ii) Repayments of loans made to a participant from the plan,
    (iii) Repayments of amounts described in section 411(a)(7)(B) (in 
accordance with section 411(a)(7)(C)) and section 411(a)(3)(D) (see 
Sec. 1.411(a)-7(d)(6)(iii)(B)),
    The direct transfer of employee contributions from one qualified 
plan to another.

However, the Commissioner may in an appropriate case, considering all of 
the facts and circumstances, treat transactions between the plan and the 
employee or certain allocations to participants' accounts as giving rise 
to annual additions.
    (4) Contributions other than cash. For purposes of this paragraph, a 
contribution by the employer or employee of property other than cash 
will be considered to be a contribution in an amount equal to the fair 
market value (as defined in Sec. 20.2031-1 of the Estate Tax 
Regulations) of the property on the date the contribution is made. The 
contribution described in this subparagraph may, however, constitute a 
prohibited transaction within the meaning of section 4975(c)(1).
    (5) Forfeitures. With respect to a particular limitation year, 
forfeitures (as well as any income attributable to the forfeiture) will 
be considered to be an annual addition to the plan if such forfeitures 
are allocated to the account of the participant as of any day within 
that limitation year.
    (6) Excess annual additions. If, as a result of the allocation of 
forfeitures, a reasonable error in estimating a participant's annual 
compensation, a reasonable error in determining the amount of elective 
deferrals (within the meaning of section 402(g)(3)) that may be made 
with respect to any individual under the limits of section 415, or under 
other limited facts and circumstances that the Commissioner finds 
justify the availability of the rules set forth in this paragraph 
(b)(6), the annual additions under the terms of a plan for a particular 
participant would cause the limitations of section 415 applicable to 
that participant for the limitation year to be exceeded, the excess 
amounts shall not be deemed annual additions in that limitation year if 
they are treated in accordance with any one of the following:
    (i) The excess amounts in the participant's account must be 
allocated and reallocated to other participants in the plan. However, if 
the allocation or reallocation of the excess amounts pursuant to the 
provisions of the plan causes

[[Page 692]]

the limitations of section 415 to be exceeded with respect to each plan 
participant for the limitation year, then these amounts must be held 
unallocated in a suspense account. If a suspense account is in existence 
at any time during a particular limitation year, other than the 
limitation year described in the preceding sentence, all amounts in the 
suspense account must be allocated and reallocated to participants' 
accounts (subject to the limitations of section 415) before any employer 
contributions and employee contributions which would constitute annual 
additions may be made to the plan for that limitation year.
    (ii) The excess amounts in the paticipant's account must be used to 
reduce employer contributions for the next limitation year (and 
succeeding limitation years, as necessary) for that participant if that 
participant is covered by the plan of the employer as of the end of the 
limitation year. However, if that participant is not covered by the plan 
of the employer as of the end of the limitation year, then the excess 
amounts must be held unallocated in a suspense account for the 
limitation year and allocated and reallocated in the next limitation 
year to all of the remaining participants in the plan in accordance with 
the rules set forth in paragraph (b)(6)(i) of this section. Furthermore, 
the excess amounts must be used to reduce employer contributions for the 
next limitation year (and succeeding limitation years, as necessary) for 
all of the remaining participants in the plan. For purposes of this 
subdivision, excess amounts may not be distributed to participants or 
former participants.
    (iii) The excess amounts in the participant's account must be held 
unallocated in a suspense account for the limitation year and allocated 
and reallocated in the next limitation year to all of the participants 
in the plan in accordance with the rules provided in paragraph (b)(6)(i) 
of this section. The excess amounts must be used to reduce employer 
contributions for the next limitation year (and succeeding limitation 
years, as necessary) for all of the participants in the plan. For 
purposes of this subdivision, excess amounts may not be distributed to 
participants or former participants.
    (iv) Notwithstanding paragraph (b)(6) (i), (ii), or (iii) of this 
section, the plan may provide for the distribution of elective deferrals 
(within the meaning of section 402(g)(3)) or the return of employee 
contributions (whether voluntary or mandatory), and for the distribution 
of gains attributable to those elective deferrals and employee 
contributions, to the extent that the distribution or return would 
reduce the excess amounts in the participant's account. These 
distributed or returned amounts are disregarded for purposes of section 
402(g), the actual deferral percentage test of section 401(k)(3), and 
the actual contribution percentage test of section 401(m)(2). However, 
the return of mandatory employee contributions may result in 
discrimination in favor of highly compensated employees. If the plan 
does not provide for the return of gains attributable to the returned 
employee contributions, such earnings will be considered as an employee 
contribution for the limitation year in which the returned contribution 
was made. For limitation years beginning after December 31, 1995, if a 
plan does not provide for the distribution of gains attributable to the 
distributed elective deferrals, such earnings will be considered as an 
employer contribution for the limitation year in which the distributed 
elective deferral was made. If a suspense account is in existence at any 
time during the limitation year in accordance with this subparagraph, 
investment gains and losses and other income may, but need not, be 
allocated to the suspense account. To the extent that investment gains 
or other income or investment losses are allocated to the suspense 
account, the entire amount allocated to participants from the suspense 
account, including any such gains or other income or less any such 
losses, is considered as the annual addition. See Sec. 1.401(a)-2(b) for 
provisions relating to the disposition of a suspense account in 
existence upon termination of a plan.
    (7) Time when annual additions credited. (i) For purposes of this 
paragraph, an annual addition is credited to the account of a 
participant for a particular limitation year if it is allocated to

[[Page 693]]

the participant's account under the terms of the plan as of any date 
within that limitation year. However, an amount is not deemed allocated 
as of any date within a limitation year if such allocation is dependent 
upon participation in the plan as of any date subsequent to such date.
    (ii) For purposes of this subparagraph, employer contributions shall 
not be deemed credited to a participant's account for a particular 
limitation year, unless the contributions are actually made to the plan 
no later than 30 days after the end of the period described in section 
404(a)(6) applicable to the taxable year with or within which the 
particular limitation year ends. If, however, contributions are made by 
an employer exempt from Federal income tax under section 501(a), the 
contributions must be made to the plan no later than the 15th day of the 
sixth calendar month following the close of the taxable year (or fiscal 
year, if no taxable year) with or within which the particular limitation 
year ends.
    (iii) For purposes of this subparagraph, employee contributions, 
whether voluntary or mandatory, shall not be deemed credited to a 
participant's account for a particular limitation year, unless the 
contributions are actually made to the plan no later than 30 days after 
the close of that limitation year. However, in the case of employee 
contributions to an employee stock ownership plan which meets the 
requirements of either section 301(d) of the Tax Reduction Act of 1975 
(89 Stat. 38, Sec. 1.46-7) and the regulations thereunder (Sec. 1.46-8) 
or section 409A and the regulations thereunder, such contributions shall 
be deemed credited to a participant's account in the limitation year for 
which the contribution is allocated to that account under the terms of 
the plan, provided that the contributions, or pledges to make the 
contributions, are actually made no later than the period described in 
section 404(a)(6) applicable to the taxable year with or within which 
the particular limitation year ends.
    (iv) For purposes of this paragraph, amounts contributed to an 
individual retirement plan (as described in section 7701(a)(37)) are 
treated as allocated to the individual's account as of the last day of 
the limitation year ending with or within the taxable year for which the 
contribution is made.
    (c) Examples. The provisions of paragraphs (a) and (b) of this 
section may be illustrated by the following examples:

    Example (1). P is a participant in a qualified profit-sharing plan 
maintained by his employer, ABC Corporation. The limitation year for the 
plan is the calendar year. P's compensation (as defined in paragraph 
(a)(3) of this section) for the current limitation year is $20,000 
consisting exclusively of salary. Because the compensation limitation 
described in section 415(c)(1)(B) applicable to P for the current 
limitation year is lower than the dollar limitation described in section 
415(c)(1)(A) (as adjusted for cost of living increases), the maximum 
annual addition which can be allocated to P's account for the current 
limitation year is $5,000 (25 percent of $20,000).
    Example (2). Assume the same facts as in Example (1), except that 
P's compensation for the current limitation year is $140,000. The 
maximum amount of annual additions that may be allocated to P's account 
in the current limitation year may not exceed the lesser of $35,000 (25 
percent of $140,000) or the dollar limitation as in effect as of January 
1 of the calendar year in which the current limitation year ends.
    Example (3). Assume the same facts as in Example (1), except that 
P's compensation for the current limitation year consists of $20,000 
salary and a bonus which is paid to P after the end of the current 
limitation year. Because the bonus was not actually paid or made 
available to P within the current limitation year, P's compensation for 
that year, for purposes of computing the compensation limitation 
described in section 415(c)(1)(B), may not include the bonus. However, 
if ABC Corporation had elected under Sec. 1.415-2(d)(4) to use the 
compensation accrued for the current limitation year, then the amount of 
the bonus which accrued within the current limitation year could have 
been taken into account.
    Example (4). Employer N maintains a qualified profit-sharing plan 
which uses the calendar year as its plan year and its limitation year. 
N's taxable year is a fiscal year beginning June 1 and ending May 31. 
Under the terms of the profit-sharing plan maintained by N, employer 
contributions are made to the plan two months after the close of N's 
taxable year and are allocated as of the last day of the plan year 
ending within the taxable year. Thus, employer contributions for the 
1977 calendar year limitation year are made on July 31, 1978 (the date 
that is two months after the close of N's taxable year ending May 31, 
1978) and are allocated as of

[[Page 694]]

December 31, 1977. Because the employer contributions are actually made 
to the plan no later than 30 days after the end of the period described 
in section 404(a)(6) with respect to N's taxable year ending May 31, 
1978, the contributions will be considered annual additions for the 1977 
calendar year limitation year.
    Example (5). Assume the same facts as in example (4), except that 
the plan year for the profit-sharing plan maintained by N is the 12-
month period beginning on March 1 and ending on February 28. Under the 
terms of the plan, an employer contribution which is made to the plan on 
July 31, 1978, is allocated to participants' accounts as of February 28, 
1978. Because the last day of the plan year is in the 1978 calendar year 
limitation year, and because, under the terms of the plan, employer 
contributions are allocated to participants' accounts as of the last day 
of the plan year, the contributions are considered annual additions for 
the 1978 calendar year limitation year.
    Example (6). XYZ Corporation maintains a profit-sharing plan to 
which a participant may make voluntary employee contributions for any 
year not to exceed 10 percent of the participant's compensation for the 
year. The plan permits a participant to make retroactive make-up 
contributions for any year for which he contributed less than 10 percent 
of compensation. XYZ uses the calendar year as the plan year and the 
limitation year. Under the terms of the plan, voluntary employee 
contributions are credited to a participant's account for a particular 
limitation year if such contributions are allocated to the participant's 
account as of any date within that limitation year. Participant A's 
compensation is as follows:

                    Limitation year and compensation

1976.............................................................$10,000
1977.............................................................$12,000
1978.............................................................$14,000
1979.............................................................$16,000

Participant A makes no voluntary employee contributions during 
limitation years 1976, 1977 and 1978. On October 1, 1979, participant A 
makes a voluntary employee contribution of $5,200 (10 percent of A's 
aggregate compensation for limitation years 1976, 1977, 1978 and 1979 of 
$52,000). Under the terms of the plan, $1,000 of this 1979 contribution 
is allocated to A's account as of limitation year 1976; $1,200 is 
allocated to A's account of limitation year 1977; $1,400 is allocated to 
A's account as of limitation year 1978, and $1,600 is allocated to A's 
account as of limitation year 1979. However, under the rule set forth in 
paragraph (b)(7)(iii) of this section, employee contributions will not 
be considered credited to a participant's account for a particular 
limitation year for section 415 purposes unless the contributions are 
actually made to the plan no later than 30 days after the close of that 
limitation year. Thus, A's voluntary employee contribution of $5,200 
made on October 1, 1979 would be considered as credited to A's account 
only for the 1979 calendar year limitation year, notwithstanding the 
plan provisions. (See section 415(c)(2)(B) and paragraph (b)(1)(ii) of 
this section for provisions relating to the amount of A's contribution 
that would be considered an annual addition to A's account for the 1979 
calendar year limitation year.)

    (d) Cost-of-living adjustment for defined contribution plans--(1) In 
general. Under section 415(d)(1)(B), the dollar limitation described in 
section 415(c)(1)(A) applicable to limitation years to which section 415 
applies is adjusted annually to take into account increases in the cost 
of living. See Sec. 1.415-5(a) for the procedure for making this 
adjustment and the effective date of the adjusted dollar limitation.
    (2) Automatic adjustments with respect to dollar limitation. A 
defined contribution plan may include a provision which provides for an 
annual automatic cost of living adjustment of the dollar limitation 
described in section 415(c)(1)(A).
    (e) Special election for section 403(b) contracts purchased by 
educational organizations, hospitals and home health service agencies--
(1) In general. (i) An annuity contract described in section 403(b) is 
treated as a defined contribution plan for purposes of the limitations 
on

[[Page 695]]

contributions imposed by section 415. Thus, section 403(b) annuity 
contracts are subject to the rules regarding the amount of annual 
additions which may be made to a participant's account for any 
limitation year under section 415(C)(1) and paragraph (a)(1) of this 
section. Section 403(b) annuity contracts are also subject to the 
limitations imposed by section 403(b)(2)(A) with respect to the amount 
of employer contributions for the purchase of an annuity contract that 
may be excluded from the gross income of the employee on whose behalf 
the annuity contract is purchased. Therefore, unless a special election 
has been made as described in section 415(c)(4) and subparagraph (2) of 
this paragraph, the excludable amount of a contribution toward the 
purchase of a section 403(b) annuity contract for a particular taxable 
year is the lesser of the exclusion allowance computed under section 
403(b)(2)(A) for that taxable year or the limitation imposed by section 
415(c)(1) for the limitation year ending with or within that taxable 
year.
    (ii) If the amount of contributions for an individual under a 
section 403(b) annuity contract for a taxable year exceeds the 
limitation of section 415(c)(1), then for purposes of computing the 
exclusion allowance under section 403(b)(2)(A) for future taxable years, 
the excess contribution is considered as an amount contributed by the 
employer for an annuity contract which was excludable from the 
employee's gross income for a prior taxable year under section 
403(b)(2)(A)(ii). Thus, for future taxable years the exclusion allowance 
under section 403(b)(2)(A) is reduced by the amount of the excess 
contribution even though that amount was not excludable from the 
employee's gross income in the taxable year when it was made. For a 
special effective date for the rule provided in this subdivision, see 
Sec. 1.415-1(f)(6).
    (iii) For purposes of the limitation imposed by section 415(c)(1), 
the amount contributed toward the purchase of a section 403(b) annuity 
contact is treated as allocated to the employee's account as of the last 
day of the limitation year ending with or within the taxable year during 
which the contribution is made.
    (iv) For rules relating to the limitation year applicable to an 
individual on whose behalf a section 403(b) annuity contract has been 
purchased, see Sec. 1.415-2(b)(7).
    (2) Alternative limitations. (i) Under section 415(c)(4) and this 
paragraph, a special election is permitted with respect to section 
403(b) annuity contracts (including custodial accounts treated as 
section 403(b) annuity contracts) purchased by educational organizations 
(as described in section 170(b)(1)(A)(ii)), home health service agencies 
(as described in paragraph (e)(2)(vi) of this section) and hospitals. 
Instead of the compensation limitation described in section 415(c)(1)(B) 
otherwise applicable to the amount of annual additions that may be made 
to the account of a participant in a defined contribution plan in any 
limitation year, an individual on whose behalf a section 403(b) annuity 
contract has been purchased may elect to have substituted for such 
limitation the amounts described in subparagraph (3) (``(A) election 
limitation'') or (4) (``(B) election limitation'') of this paragraph. 
Instead of the exclusion allowance determined under section 403(b)(2)(A) 
otherwise applicable for the taxable year with or within which the 
limitation year ends to an individual on whose behalf a section 403(b) 
annuity contract has been purchased, an individual may elect to have 
substituted for such exclusion allowance the amount described in 
paragraph (e)(5) (``(C) election limitation'') of this section. The 
election shall be made at the time and in the manner prescribed in 
subparagraph (6) of this paragraph.
    (ii) With respect to any limitation or taxable year, an election by 
an individual to have any one of the alternative limitations described 
in paragraph (e) (3), (4) or (5) of this section apply to contributions 
made on his behalf by the employer with respect to any section 403(b) 
annuity contract precludes an election to have any other of the 
alternative limitations apply for any future limitation or taxable year 
with respect to any section 403(b) annuity contract purchased by any 
employer of such individual.
    (iii) With respect to any limitation year, an election by an 
individual to

[[Page 696]]

have paragraph (e)(3) of this section (``(A) election limitation'') 
apply to contributions made on his behalf by the employer with respect 
to any section 403(b) annuity contract precludes an election to have any 
of the alternative limitations apply for any future limitation or 
taxable year with respect to any section 403(b) annuity contract 
purchased by any employer of such individual.
    (iv) Any election made under this paragraph is irrevocable.
    (v) The election made by the individual under this paragraph shall 
be controlling for all prior taxable years in which, in accordance with 
Sec. 11.415(c)(4)-1(b), the individual had taken advantage of an 
alternative limitation, even if inconsistent with the alternative 
limitation used in determining income tax liability for those taxable 
years under that section. An individual, who took advantage of an 
alternative limitation under Sec. 11.415(c)(4)-1(b) which is 
inconsistent with the one finally elected, may correct this 
inconsistency for each prior open taxable year in either of two ways. 
The individual may redetermine income tax liability as though none of 
the alternative limitations applied for that taxable year. 
Alternatively, the individual may recompute income tax liability for the 
particular taxable year in a manner consistent with the alternative 
limitation elected by the individual under this paragraph rather than 
the limitation originally used in accordance with Sec. 11.415(c)(4)-
1(b). Furthermore, if an individual, who had taken advantage of an 
alternative limitation in prior taxable years under Sec. 11.415(c)(4)-
1(b), elects under this paragraph not to have any of the alternative 
limitations apply, the individual, will, nevertheless, be considered to 
have elected the alternative limitation used under Sec. 11.415(c)(4)-
1(b). However, the rule described in the preceding sentence is not 
applicable if the individual recomputes income tax liability for all 
prior open taxable years in which an alternate limitation was taken 
advantage of under Sec. 11.415(c)(4)-1(b) as though none of the 
alternative limitations applied for those taxable years. For purposes of 
section 6654 (relating to the failure of an individual to pay estimated 
tax), a difference in tax for such years resulting from a difference in 
these limitations is not treated as an underpayment. This rule only 
applies to the extent the difference in tax is due to the election of 
one of the alternative limitations or to a final election not to use one 
of the alternative limitations.
    (vi) For purposes of this paragraph, a home health service agency is 
an organization described in section 501(c)(3) which is exempt from tax 
under section 501(a) and which has been determined by the Secretary of 
Health, Education and Welfare to be a home health service agency under 
section 1395x(o) of Title 42 of the United States Code.
    (3) ``(A) election limitation.'' For the limitation year that ends 
with or within the taxable year in which an individual eligible to make 
a special election separates from the service of his employer (and only 
for that limitation year), the ``(A) election limitation'' is the 
exclusion allowance computed under section 403(b)(2)(A) for the 
individual's taxable year in which the separation occurs (without regard 
to section 415). However, in determining this limitation, there may only 
be taken into account the individual's years of service for the employer 
(as defined in section 403(b)(4) and the regulations thereunder) and 
contributions made by the employer (as described in section 
403(b)(2)(A)(ii) and regulations thereunder) during the period of years 
(not exceeding 10) ending on the date of separation. For purposes of 
this subparagraph, all service for the employer performed within the 
period beginning ten years before the date of separation and ending on 
the separation date must be taken into account. However, the ``(A) 
election limitation'' may not exceed the dollar limitation described in 
section 415(c)(1)(A) (as adjusted for cost-of-living increases under 
section 415(d)(1) and paragraph (d) of this section) applicable to the 
individual for the limitation year.
    (4) ``(B) election limitation.'' For any limitation year with 
respect to an individual eligible to make a special election, the ``(B) 
election limitation'' is equal to the least of the following amounts--
    (i) $4,000, plus 25 percent of the participant's includible 
compensation (as

[[Page 697]]

defined in section 403(b)(3) and the regulations thereunder) for the 
taxable year with or within which the limitation year ends.
    (ii) The amount of the exclusion allowance determined under section 
403(b)(2)(A) and the regulations thereunder for the taxable year with or 
within which the limitation year ends.
    (iii) $15,000.
    (5) ``(C) election limitation.''  For any taxable year with respect 
to an individual eligible to make a special election, the ``(C) election 
limitation'' is the lesser of the dollar limitation described in section 
415(c)(1)(A) (as adjusted for cost-of-living increases under section 
415(d)(1) and paragraph (d) of this section) or the compensation 
limitation described in section 415(c)(1)(B) applicable to the 
individual for the limitation year ending with or within that taxable 
year. For purposes of determining the compensation limitation under this 
subparagraph for a particular limitation year, the term ``compensation'' 
has the same meaning as set forth in Sec. 1.415-2(d).
    (6) Time and method of making election. (i) With respect to any 
taxable year, an election by an individual to take advantage of any of 
the alternative limitations described in subparagraphs (3), (4) or (5) 
of this paragraph is made by determining income tax liability for that 
taxable year in a way which is consistent with one of the alternative 
limitations. However, an individual is only considered to have made an 
election for a taxable year when the use of one of the alternative 
limitations is necessary to support the exclusion from gross income 
reflected in the individual's income tax return for that taxable year.
    (ii) In the case of an individual who, in accordance with 
Sec. 11.415(c)(4)-1(b), took advantage of one of the alternative 
limitations for prior taxable years, the election described in this 
paragraph to take advantage of an alternative limitation will be 
effective only if the following two conditions are satisfied. The first 
condition is that the election must be made (in the manner described in 
subdivision (i) of this subparagraph) in the individual's income tax 
return for the taxable year immediately following the taxable year in 
which final regulations under section 415 are published in the Federal 
Register. The second condition is that if the individual's election is 
different from the limitation used under Sec. 11.415(c)(4)-1(b) in 
determining income tax liability for prior taxable years, the individual 
must correct this inconsistency by recomputing income tax liability for 
all such prior open taxable years in accordance with paragraph (e)(2)(v) 
of this section. See paragraph (e)(2)(v) of this section for rules 
relating to an individual who had taken advantage of an alternative 
limitation in prior taxable years under Sec. 11.415(c)(4)-1(b) but does 
not elect any of the alternative limitations for the taxable year 
immediately following the taxable yar in which final regulations under 
section 415 are published in the Federal Register.
    (iii) This subdivision provides a special rule for those individuals 
who, in accordance with Sec. 11.415(c)(4)-1(b), took advantage of one of 
the alternative limitations for prior taxable years, but who are not 
participating in a section 403(b) annuity program in the taxable year 
following the taxable year in which final regulations under section 415 
are published in the Federal Register. In such a situation, the election 
described in this paragraph to take advantage of an alternative 
limitation (or, alternatively, not to elect any of the alternative 
limitations) is made by the individual by attaching a statement to the 
income tax return for the taxable year following the taxable year in 
which final section 415 regulations are published in the Federal 
Register. The statement must include the individual's name, address, 
Social Security number, the name of the section 403(b) annuity program 
in which the individual participated and a statement indicating the 
election being made. See paragraph (e)(2)(v) of this section for rules 
relating to the situation where the individual described in this 
subdivision chooses not to elect any of the alternative limitations.
    (7) Examples: The provisions of this paragraph may be illustrated by 
the following examples:

    Example (1). Doctor M is an employee of H Hospital (an organization 
described in section 501(c)(3) and exempt from taxation

[[Page 698]]

under section 501(a)) for the entire 1976 calendar year. M is not in 
control of any employer within the meaning of section 414 (b) or (c), as 
modified by section 415(h). M uses the calendar year as the taxable year 
and limitation year. M has includable compensation (as defined in 
section 403(b)(3) and the regulations thereunder) and compensation (as 
defined in paragraph (a)(3) of this section) for taxable year 1976 of 
$30,000, and M has 4 years of service (as defined in Sec. 1.403(b)-1(f)) 
with H as of December 31, 1976. During M's prior service with H, H had 
contributed a total of $12,000 on M's behalf for annuity contracts 
described in section 403(b), which amount was excludable from M's gross 
income for such prior years. Thus, for the limitation year ending with 
or within taxable year 1976, M's exclusion allowance determined under 
section 403(b)(2)(A) is $12,000 ((.20  x  $30,000 4) -- $12,000). The 
limitation imposed by section 415(c)(1) that is applicable to M for 
limitation year 1976 is the lesser of $26,825 (the amount described in 
section 415(c)(1)(A) adjusted under section 415(d)(1)(b) for limitation 
year 1976) or $7,500 (the amount described in section 415(c)(1)(B)). 
Absent the special elections provided in section 415(c)(4) and this 
paragraph, $7,500 would be the maximum contribution H could make for 
annuity contracts described in section 403(b) on M's behalf for 
limitation year 1976 without increasing M's gross income for taxable 
year 1976. However, because H is an organization described in section 
415(c)(4), M may make a special election with respect to amounts 
contributed by H on M's behalf for section 403(b) annuity contracts for 
1976. Assume that M does not separate from the service of H during 1976 
and that, therefore, the ``(A) election limitation'' described in 
section 415(c)(4)(A) and subparagraph (3) of this paragraph is not 
available to M. If M elects the ``(B) election limitation'' for 1976, H 
could contribute $11,500 on M's behalf for annuity contracts described 
in section 403(b) for that year (the least of $11,500 (the amount 
described in section 415(c)(4)(B)(i))); $12,000 (the amount described in 
section 415(c)(4)(B)(ii)); and $15,000 (the amount described in section 
415(c)(4)(B)(iii)). If M elects the ``(C) election limitation'' for 
1976, H could only contribute up to $7,500 (the lower of the amounts 
described in section 415(c)(1) (A) or (B)) for section 403(b) annuity 
contracts on M's behalf for 1976 without increasing M's gross income for 
that year.
    Example (2). Assume the same facts as in example (1) except that H 
had contributed a total of $18,000 on M's behalf for annuity contracts 
in prior years, which amount was excludable from M's gross income for 
such prior years. Accordingly, for 1976, M's exclusion allowance 
determined under section 403(b)(2)(A) is $6,000 ((.20  x  $30,000  x  
4)--$18,000). The limitation imposed by section 415(c)(1) applicable to 
M for 1976 is $7,500 (the lesser of the amount described in section 
415(c)(1) (A) or (B)). Absent the special elections provided in section 
415(c)(4) and this paragraph, $6,000 would be the maximum amount H could 
contribute for annuity contracts described in section 403(b) on M's 
behalf for 1976 without increasing M's gross income for that year. 
However, if M elects the ``(c) election limitations'' for 1976, H may 
contribute up to $7,500 without increasing M's gross income for that 
year.
    Example (3). G, a teacher, is an employee of E, an educational 
organization described in section 170(b)(1)(A)(ii). G uses the calendar 
year as the taxable year and G uses the 12-month consecutive period 
beginning July 1 as the limitation year. G has includible compensation 
(as defined in section 403(b)(3) and the regulations thereunder) for 
taxable year 1976 of $12,000 and G has compensation (as defined in 
paragraph (a)(3) of this section) for the limitation year ending with or 
within taxable year 1976 of $12,000. G has 20 years of service (as 
defined in Sec. 1.403(b)-1(f)) as of May 30, 1976, the date G separates 
from the service of E. During G's service with E before taxable year 
1976, E had contributed $34,000 toward the purchase of a section 403(b) 
annuity contract on G's behalf, which amount was excludable from G's 
gross income for such prior years. Of this amount, $19,000 was so 
contributed and excluded during the 10 year period ending on May 30, 
1976. For the taxable year 1976, G's exclusion allowance determined 
under section 403(b)(2)(A) is $14,000 ((.20  x  $12,000  x  20) -- 
$34,000). Absent the special elections described in section 415(c)(4) 
and this paragraph, $3,000 (the lesser of G's exclusion allowance for 
taxable year 1976 or the section 415(c)(1) limitation applicable to G 
for the limitation year ending with or within such taxable year) would 
be the maximum excludable contribution E could make for section 403(b) 
annuity contracts on G's behalf for the limitation year ending with or 
within taxable year 1976. However, because E is an organization 
described in section 415(c)(4), G may make a special election with 
respect to amounts contributed on G's behalf by E for section

[[Page 699]]

403(b) annuity contracts for the limitation year ending with or within 
taxable year 1976.
Because G has separated from the service of E during such taxable year, 
G may elect the ``(A) election limitation'' as well as the ``(B) 
election limitation'' or the ``(C) election limitation.'' If G elects 
the ``(A) election limitation'' for the limitation year ending with or 
within taxable year 1976, E could contribute up to $5,000 ((.20  x  
$12,000  x  10) -$19,000) on G's behalf for section 403(b) annuity 
contracts for such limitation year without increasing G's gross income 
for the taxable year with or within which such limtation year ends. If G 
elects the ``(B) election limitation'' for such limitation year, E could 
contribute $7,000 (the least of $7,000 (the amount described in section 
415(c)(4)(B)(i)); $14,000 (the amount described in section 
415(c)(4)(B)(ii)); and $15,000 (the amount described in section 
415(c)(4)(B)(iii)). If G elects the ``(C) election limitation'' for 
taxable year 1976, E could contribute $3,000 (the lesser of the amounts 
described in section 415(c)(1) (A) or (B)).

    (f) Special rules with respect to the application of section 
415(c)(1)(B) with section 404(e)(4). For special rules relating to the 
application of the compensation limitation described in section 
415(c)(1)(B) with the minimum allowable deduction described in section 
404(e)(4) in the case of a plan which provides contributions for 
employees, some or all of whom are employees within the meaning of 
section 401(c)(1), see the regulations under section 404(e).
    (g) Special rules for employee stock ownership plans--(1) General 
definitions. For purposes of this paragraph--(i) An employee stock 
ownership plan is a plan which meets the requirements of either section 
4975(e)(7) and the regulations thereunder, or whichever of the following 
is applicable: section 301(d) of the Tax Reduction Act of 1975 (89 Stat. 
38, 26 CFR 1.46-7) and the regulations thereunder (26 CFR 1.46-8) or 
section 409A and the regulations thereunder.
    (ii) The term ``employer securities'' means, in the case of an 
employee stock ownership plan within the meaning of section 4975(e)(7) 
and the regulations thereunder, qualifying employer securities within 
the meaning of section 4975(e)(8), that are also described in section 
301(d)(9)(A) of the Tax Reduction Act of 1975 and the regulations 
thereunder or section 409A(l) and the regulations thereunder, whichever 
is applicable. In the case of an employee stock ownership plan described 
in section 301(d)(2) of the Tax Reductions Act of 1975 or section 409A, 
whichever is applicable, such term means employer securities within the 
meaning of section 301(d)(9)(A) of that Act and the regulations 
thereunder or section 409A(l) and the regulations thereunder, which ever 
is applicable.
    (iii) An individual is considered to own more than 10 percent of the 
employer's stock if, without regard to stock held under the employee 
stock ownership plan, the individual owns (after application of section 
1563(e), relating to constructive ownership of stock) more than 10 
percent of the total combined voting power of all classes of stock 
entitled to vote or more than 10 percent of the total value of shares of 
all classes of stock.
    (2) Special dollar limitation. In the case of an employee stock 
ownership plan which meets the requirements of paragraph (g)(3) of this 
section, the applicable dollar limitation for a limitation year equals 
the sum of--
    (i) The dollar amount described in section 415(c)(1)(A) (as so 
adjusted for that limitation year), and
    (ii) The lesser of the amount determined under paragraph (g)(2)(i) 
of this section or the amount of employer securities within the meaning 
of paragraph (g)(1)(ii) of this section contributed to the employee 
stock ownership plan.
    (3) Employee stock ownership plans to which the special dollar 
limitation applies. For purposes of this paragraph, the special dollar 
limitation is only applicable to an employee stock ownership plan for a 
particular limitation year for which no more than one-third of the 
employer contributions for the limitation year are allocated to 
employees who are officers, shareholders owning more than 10 percent of 
the employer's stock (as determined under subparagraph (1)(iii) of this 
paragraph), or whose compensation for the limitation year exceeds twice 
the dollar amount described in section 415(c)(1)(A) (as adjusted for 
cost-of-living increases under section 415(d)(1) and paragraph (d) of 
this section).
    (4) Cash contributions treated as contributions of employer 
securities. For purposes of the special dollar limitation--

[[Page 700]]

    (i) In the case of an employee stock ownership plan in which the 
employer makes cash contributions which are used in a direct acquisition 
of employer securities, the cash contributions are treated as a 
contribution of employer securities for the limitation year, provided 
that the securities are employer securities within the meaning of 
paragraph (g)(1)(ii) of this section and are allocated to participants 
under the terms of the plan as of any date within that limitation year. 
However, this subdivision is not applicable unless the following two 
conditions are satisfied. The first condition is that the employer must 
contribute the cash to the plan no later than 30 days after the end of 
the period described in section 404(a)(6) applicable to the taxable year 
with or within which the particular limitation year ends. The second 
condition is that the employer securities must be purchased no later 
than 60 days after the end of the period described in the preceding 
sentence.
    (ii) In the case of an employee stock ownership plan to which an 
exempt loan as described in Sec. 54.4975-7(b) has been made, the 
employer's contribution of both principal and interest used to repay the 
exempt loan for the limitation year will be treated as a contribution of 
employer securities for that limitation year, provided that the 
securities allocated to participants are employer securities within the 
meaning of paragraph (g)(1)(ii) of this section.
    (5) Amounts considered as annual additions. For purposes of applying 
the limitations of section 415(c)(1) and this section and for the 
special dollar limitation, in the case of an employee stock ownership 
plan to which an exempt loan as described in Sec. 54.4975-7(b) has been 
made, the amount of employer contributions which is considered an annual 
addition for the limitation year is calculated with respect to employer 
contributions of both principal and interest used to repay the exempt 
loan for that limitation year.
    (6) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example (1). Employee N is a participant in an employee stock 
ownership plan maintained by his employer, M Corporation, which meets 
the requirements of section 4975(e)(7) and the regulations thereunder. 
The plan also meets the requirements set forth in subparagraph (3) of 
this paragraph. M does not maintain any other qualified plan. The 
limitation year for the plan is the calendar year. For 1977, N has 
compensation (as defined in paragraph (a)(3) of this section) of 
$160,000. Without the special dollar limitation described in 
subparagraph (2) of this paragraph, under section 415(c)(1), N could 
only have annual additions of $28,175 (the lesser of the dollar 
limitation described in section 415(c)(1)(A) as adjusted for cost of 
living increases ($28,175) or the compensation limitation described in 
section 415(c)(1)(B) (25% of $160,000=$40,000)) made to his account for 
the 1977 limitation year. Under the special dollar limitation, N would 
be able to have annual additions of $56,350 ($28,175 x 2) made to his 
account for the 1977 limitation year, provided that amounts contributed 
in excess of $28,175 consist solely of employer securities. However, N 
is also subject to the compensation limitation described in section 
415(c)(1)(B). Therefore, even under the special dollar limitation, N may 
only have annual additions of $40,000 made to his account for the 1977 
limitation year: Provided, That amounts contributed in excess of $28,175 
consist solely of employer securities within the meaning of paragraph 
(g)(1)(ii) of this section.
    Example (2). Assume the same facts as in example (1), except that 
N's compensation for 1977 is $300,000. Because the compensation 
limitation (25% of $300,000=$75,000) is greater than the special dollar 
limitation of $56,350, N can have annual additions of $56,350 made to 
his account for the 1977 limitation year, provided that amounts 
contributed in excess of $28,175 consist solely of employer securities.

    (h) Special rules for level premium annuity contracts under plans 
benefiting owner-employees--(1) In general. The compensation limitation 
described in section 415(c)(1)(B) will not be less than the contribution 
described in section 401(e) which is made for the benefit of an owner-
employee (within the meaning of section 401(c)(3)) for a limitation year 
provided that--
    (i) The annual additions with respect to such owner-employee for the 
limitation year consist solely of the contributions described in this 
paragraph, and
    (ii) The owner-employee is not a participant at any time during the 
limitation year in a defined benefit plan maintained by the employer.
    (2) Application of the non-discrimination rules. In the case of a 
plan which

[[Page 701]]

provides contributions for employees who are not owner-employees, that 
plan will not be treated as failing to satisfy the non-discrimination 
rules of section 401(a)(4) merely because contributions made on behalf 
of employees who are not owner-employees are not permitted to exceed the 
compensation limitation described in section 415(c)(1)(B).
    (3) Additional rules. For additional rules concerning contributions 
described in section 401(e), see Sec. 1.401(e)-4.

[T.D. 7748, 46 FR 1705, Jan. 7, 1981, as amended by T.D. 8357, 56 FR 
40549, Aug. 15, 1991; 57 FR 10290, Mar. 25, 1992; T.D. 8581, 59 FR 
66181, Dec. 23, 1994]



Sec. 1.415-7  Limitation in case of defined benefit and defined contribution plan for same employee.

    (a) Overall limitation--(1) In general. Under section 415(e) and 
this section, in any case in which an individual has at any time 
participated in a defined benefit plan and also has at any time 
participated in a defined contribution plan maintained by the same 
employer, to satisfy the provisions of section 415(a), the sum of the 
defined benefit plan fraction (as defined in paragraph (b) of this 
section) and the defined contribution plan fraction (as defined in 
paragraph (c) of this section) with respect to that participant for any 
limitation year may not exceed 1.4.
    (2) Application of overall limitation to employee stock ownership 
plan. An employee stock ownership plan which qualifies for, and takes 
advantage of, the special dollar limitation provided in section 
415(c)(6) and Sec. 1.415-6(g) is still subject to the 1.4 limitation of 
paragraph (a)(1) of this section.
    (b) Defined benefit plan fraction--(1) In general. For purposes of 
paragraph (a) of this section, the defined benefit plan fraction 
applicable to a participant for any limitation year is a fraction--
    (i) The numerator of which is the projected annual benefit (as 
defined in subparagraph (3) of this paragraph) of the participant under 
the plan (determined as of the close of the limitation year), and
    (ii) The denominator of which is the projected annual benefit (as 
defined in subparagraph (3) of this paragraph) of the participant under 
the plan (determined as of the close of the limitation year) if the plan 
provided such participant the maximum benefit allowable under 
Sec. 1.415-3.

In the event a participant has participated in more than one defined 
benefit plan maintained by the employer, the numerator of the defined 
benefit plan fraction is the sum of the projected annual benefits under 
all of the defined benefit plans.
    (2) Participants described in section 2004(d)(2) of the Employee 
Retirement Income Security Act of 1974. For purposes of this paragraph, 
in the case of a participant described in section 2004(d)(2) of the 
Employee Retirement Income Security Act of 1974 (Pub. L. 93-406, 88 
Stat. 987), the defined benefit plan fraction applicable to such 
participant is deemed not to exceed 1.0 for any limitation year to which 
section 415 and this section apply.
    (3) Projected annual benefit. For purposes of this section, a 
participant's ``projected annual benefit'' is equal to the annual 
benefit (as defined in Sec. 1.415-3(b)(1)(i)) to which a participant in 
a defined benefit plan would be entitled under the terms of the plan 
based upon the following assumptions:
    (i) The participant will continue employment until reaching normal 
retirement age as determined under the terms of the plan (or current 
age, if that is later).
    (ii) The participant's compensation for the limitation year under 
consideration will remain the same until the date the participant 
attains the age described in subdivision (i) of this subparagraph.
    (iii) All other relevant factors used to determine benefits under 
the plan for the limitation year under consideration will remain 
constant for all future limitation years.
    (c) Defined contribution plan fraction--(1) In general. For purposes 
of paragraph (a) of this section, the defined contribution plan fraction 
applicable to a participant for any limitation year is a fraction--
    (i) The numerator of which is the sum of the annual additions to the 
participant's account as of the close of the limitation year and for all 
prior limitation years, and

[[Page 702]]

    (ii) The denominator of which is the sum of the maximum amount of 
annual additions which could have been made under section 415(c) 
Sec. 1.1415-6(a) (determined without regard to the special dollar 
limitation provided for employee stock ownership plans under section 
415(c)(6) and Sec. 1.415-6(g)) for the limitation year and for each 
prior limitation year of the participant's service with the employer 
(regardless of whether a plan was in existence during those years).
For purposes of this paragraph, the term ``annual additions'' has the 
same meaning as set forth in Sec. 1.415-6(b).
    (2) Special rules for certain annuity contracts and individual 
retirement plans. (i) Except as provided in subdivision (ii) of this 
subparagraph, in computing the defined contribution plan fraction 
applicable to an individual on whose behalf a section 403(b) annuity 
contract has been purchased, the amount which is included in the 
denominator of such fraction for a particular limitation year is the 
maximum amount which could have been contributed under the limitations 
of section 415(c) and Sec. 1.415-6(a) applicable to the individual for 
the particular limitation year. However, if the individual elects an 
alternative limitation described in either section 415(c)(4)(A) or 
section 415(c)(4)(B) for a particular limitation year, the denominator 
of the fraction for such limitation year is the maximum amount which 
could have been contributed under the applicable limitations of section 
415(c) and Sec. 1.415-6(a), as modified by the alternative limitation 
elected.
    (ii) This subdivision provides a rule for computing the defined 
contribution plan fraction with respect to an individual on whose behalf 
a section 403(b) annuity has been purchased prior to commencing 
employment with an employer which the individual controls (within the 
meaning of section 414 (b) or (c), as modified by section 415(h)) and 
which maintains a defined benefit plan. In this situation, the 
controlled employer is considered to be maintaining the section 403(b) 
annuity contract as a defined contribution plan under the rules of 
paragraph (h)(2)(i) of this section. However, for all years prior to 
commencing employment with the controlled employer, the individual does 
not have any years of service (within the meaning of subparagraph 
(1)(ii) of this paragraph) with that employer. Thus, for each limitation 
year in which such individual did not have a year of service with the 
controlled employer, the denominator of the defined contribution plan 
fraction applicable to the individual is deemed to equal the numerator 
of that fraction.
    (iii) The rules described in this paragraph also apply to an 
individual on whose behalf an individual retirement plan (as described 
in section 7701(a)(37)) has been maintained.
    (iv) See paragraph (h)(4) of this section for special rules relating 
to the aggregation of a section 403(b) annuity contract and a qualified 
plan.
    (d) Special transitional rules for defined contribution plan 
fraction. For purposes of determining the defined contribution plan 
fraction under paragraph (c) of this section for any limitation year 
beginning after December 31, 1975, the following rules shall apply with 
respect to limitation years before the first limitation year to which 
section 415 and this section apply.
    (1) The aggregate amount taken into account under paragraph 
(c)(1)(i) of this section in determining the numerator of the defined 
contribution plan fraction is deemed not to exceed the aggregate amount 
taken into account under paragraph (c)(1)(ii) of this section in 
determining the denominator of the fraction. Thus, for example, if the 
aggregate amount of actual annual additions to the plan for all such 
limitation years is $500,000, while the aggregate amount in the 
denominator is $250,000, under the rule set forth in this subparagraph, 
the defined contribution plan fraction is $250,000 divided by $250,000, 
or 100 percent.
    (2) The amount taken into account under section 415(c)(2)(B)(i) for 
each such limitation year is an amount equal to--
    (i) The amount by which the aggregate amount of employee 
contributions (whether voluntary or mandatory) for all limitation years 
beginning before

[[Page 703]]

January 1, 1976, during which the employee was a participant in the plan 
exceeds 10 percent of the employee's aggregate compensation from the 
employer for all such limitation years, divided by
    (ii) The number of full limitation years (counting any part of a 
limitation year as a full limitation year) beginning before January 1, 
1976, during which the employee was a participant in the plan. 
Therefore, for purposes of computing the numerator of a participant's 
defined contribution plan fraction for limitation years beginning after 
December 31, 1975, no employee contributions made to the plan before the 
first limitation year to which section 415 and this section apply are 
taken into account as annual additions if the aggregate amount of the 
contributions does not exceed 10 percent of the employee's aggregate 
compensation from the employer for all limitation years prior to the 
first such limitation year.
    (3) The special transitional rule concerning employee contributions 
provided for in paragraph (d)(2) of this section does not apply to any 
employee contributions (whether voluntary or mandatory) made on or after 
October 2, 1973, to the extent that these contributions exceed the 
maximum amount of employee contributions permitted under the plan as in 
effect on October 2, 1973. For purposes of the preceding sentence, plan 
amendments approved by the Internal Revenue Service before October 2, 
1973, and actually put into effect before January 1, 1974, are 
considered in effect on October 2, 1973. Therefore, for purposes of 
computing the numerator of the defined contribution plan fraction for 
limitation years beginning after December 31, 1975, employee 
contributions made between October 2, 1973 and prior to the first 
limitation year to which section 415 and this section apply which exceed 
the maximum amount the employee was permitted to contribute under the 
provisions of the plan as in effect on October 2, 1973, are taken into 
account as annual additions (within the meaning of Sec. 1.415-
6(b)(1)(ii)).
    (4) For purposes of this paragraph, the participant's aggregate 
compensation for all years (whichever are applicable under either 
paragraph (d)(1) or (2) of this section) with the employer before the 
first limitation year to which section 415 applies equals the product of 
the participant's compensation during the first limitation year to which 
section 415 applies times the number of such applicable years. However, 
this special rule is available only if records necessary for the 
determination of the participant's aggregate compensation for all such 
applicable years with the employer before the first limitation year to 
which section 415 applies are not available.
    (e) Examples. The provisions of paragraphs (a) through (d) of this 
section may be illustrated by the following examples:

    Example (1). (i) S is an employee of T Corporation and is a 
participant in both the noncontributory defined benefit plan and 
noncontributory defined contribution plan maintained by the corporation. 
S became an employee of T on July 1, 1966. S became a participant in the 
defined benefit plan maintained by T on January 1, 1968 and he became a 
participant in the defined contribution plan maintained by T on January 
1, 1970. T uses the calendar year as the limitation year for both plans. 
The current limitation year is 1978. S's compensation (as defined in 
Sec. 1.415-2(d)) from T is as follows:

------------------------------------------------------------------------
                     Limitation year                       Compensation 
------------------------------------------------------------------------
1966....................................................          $3,000
1967....................................................           6,000
1968....................................................           6,000
1969....................................................           8,000
1970....................................................           8,000
1971....................................................           8,000
1972....................................................           9,000
1973....................................................          10,000
1974....................................................          10,000
1975....................................................          11,000
1976....................................................          11,000
1977....................................................          12,000
1978....................................................          12,000
------------------------------------------------------------------------

    (ii) S's projected annual benefit (as defined in paragraph (b)(3) of 
this section) as of the close of the current limitation year under the 
terms of the plan is $9,000. S's compensation for the current limitation 
year is $12,000. Therefore, the defined benefit plan fraction applicable 
to S for the current limitation year is .75 or 75 percent (9,000 
 12,000). S's defined contribution compensation limitation (as 
described in section 415(c)(1)(B)) for the current limitation year is 
$3,000 (25 percent of $12,000). For all limitation years beginning 
before January 1, 1978, the maximum aggregate amount of annual additions 
which could have been allocated to S's account under the defined 
contribution plan is

[[Page 704]]

$25,500 (aggregate compensation of $102,000 for all years of service 
with T Corporation  x  25 percent). Assume that annual additions 
totaling $11,400 have been allocated to S's account as of the end of the 
current limitation year. Therefore, S's defined contribution plan 
fraction as of the end of the current limitation year equals

         $11,400          ........      $11,400                         
      ------------            =          ----       = 40 or 40 percent  
     $25,500+$3,000       ........      $28,500                         
                                                                        

Because the sum (115 percent) of the defined benefit plan fraction (75 
percent) and the defined contribution plan fraction (40 percent) 
applicable to S for the current limitation year does not exceed 140 
percent, the limitations of section 415(e) and this section are not 
exceeded.

    Example (2). Assume the same facts as in example (1) except that the 
defined contribution plan maintained by T Corporation provides for 
mandatory employee contributions of 6% of compensation and voluntary 
employee contributions of 10% of compensation. Assume further that S 
made the maximum allowable employee contributions under the plan for 
each limitation year (including the current limitation year) during 
which he was a participant. For limitation years beginning before 
January 1, 1976, S made total employee contributions of $8,960. However, 
because of the special transitional rule applicable to the defined 
contribution plan fraction with respect to employee contributions for 
limitation years beginning before January 1, 1976 (as described in 
paragraph (d)(2) of this section), only $560 of the total employee 
contributions of $8,960 made by S will be considered an annual addition 
for each of those limitation years in which S was a participant in the 
plan total employee contributions for limitation years in which S 
participated in the plan beginning before January 1, 1976 of $8,960 
minus $5,600 (10 percent of total compensation of $56,000 for such 
years) divided by 6 (the number of such years in which S was a 
participant in the plan). Thus, in determining the numerator of the 
defined contribution plan fraction applicable to S, because S was a 
participant in the plan for 6 limitation years beginning before January 
1, 1976, the total amount of employee contributions that must be taken 
into account as annual additions for such limitation years is $3,360 
($560  x  6). For limitation years beginning after January 1, 1976, S 
made contributions of $1,760 (for limitation year 1976), $1,920 (for 
limitation year 1977) and $1,920 (for limitation year 1978, the current 
limitation year). The amount of annual additions attributable to such 
contributions under section 415(c)(2)(B) is $880 (for limitation year 
1976), $960 (for limitation year 1977) and $960 (for the current 
limitation year), for a total of $2,800. Thus, the defined contribution 
plan fraction applicable to S for the current limitation year is

    $3,360+$2,800+$11,400      ......     $17,560                       
      ------------------          =    ----          = 62 or 62         
           $28,500             ......     $28,500      percent          
                                                                        

Because the sum (137 percent) of the defined benefit plan fraction (75 
percent) and the defined contribution plan fraction (62 percent) 
applicable to S for the current limitation year does not exceed 140 
percent, the limitations of section 415(e) and this section are not 
exceeded.
    Example (3). (i) A is an employee of M Corporation and is a 
participant in both the noncontributory defined benefit plan and 
noncontributory defined contribution plan maintained by the corporation. 
A became an employee of M on January 1, 1969 and immediately became a 
participant in both plans. M uses the calendar year as the limitation 
year for both plans. The current limitation year is 1978. A's 
compensation (as defined in Sec. 1.415-2(d)) from M is as follows:

------------------------------------------------------------------------
                     Limitation year                       Compensation 
------------------------------------------------------------------------
1969....................................................        $100,000
1970....................................................         120,000
1971....................................................         130,000
1972....................................................         160,000
1973....................................................         200,000
1974....................................................         240,000
1975....................................................         280,000
1976....................................................         320,000
1977....................................................         400,000
1978....................................................         460,000
------------------------------------------------------------------------

    (ii) A is a participant described in section 2004(d)(2) of the 
Employee Retirement Income Security Act of 1974. A's projected annual 
benefit (as defined in paragraph (b)(3) of this section) as of the close 
of the current limitation year under the terms of the defined benefit 
plan is $100,000. The defined benefit dollar limitation (as described in 
section 415(b)(1)(A)) applicable to A for the current limitation year is 
$90,150. Absent the provisions of paragraph (b)(2) of this section, the 
defined benefit plan fraction applicable to A for the current limitation 
year would be 1.11 or 111 percent. However, under the provisions of 
paragraph (b)(2) of this section, for purposes of computing the overall 
1.4 limitation imposed by section 415(e) and this section applicable to 
A for the current limitation year and all future limitation years, A's 
defined benefit plan fraction is considered to equal 1.0 or 100 percent.
    (iii) A's defined contribution dollar limitation (as described in 
section 415(c)(1)(A)) for the current limitation year is $30,050. For 
the 9 limitation years ending before January 1, 1978, the maximum amount 
of annual additions which could have been allocated to A's account under 
the defined contribution plan is $230,000 ($25,000  x  7, plus $26,825 
(adjusted figure for 1976) and $28,175 (adjusted figure

[[Page 705]]

for 1977)). Assume that annual additions totaling $60,000 ($10,000 of 
this amount being attributable to the current limitation year) have been 
allocated to A's account as of the close of the current limitation year. 
A's defined contribution plan fraction computed as of the end of the 
current limitation year is .23 or 23 percent

                                              $60,000                                                           
                                            ----------              = 23 or 23 percent                          
                                         $230,000+$30,050                                                       
                                                                                                                

Because the sum (123 percent) of the defined benefit plan fraction (1.0 
or 100 percent) and the defined contribution plan fraction (.23 or 23 
percent) for the current limitation year does not exceed 1.4 or 140 
percent, the limitations of section 415(e) and this section are not 
violated.
    Example (4). (i) J is an employee of M Corporation and is the only 
participant in the defined contribution plan maintained by the 
corporation. M uses the calendar year as the limitation year for the 
plan. The current limitation year is 1980. For all limitation years 
prior to 1980, the maximum allowable contribution was made to the plan. 
Thus, J's defined contribution plan fraction as of the end of 1979 is 
1.0 or 100 percent. In 1980, before any contributions had been made to 
the defined contribution plan, the defined contribution plan is 
converted into a defined benefit plan. The defined benefit plan provides 
a benefit in the form of a straight life annuity equal to 50% of a 
participant's compensation for the high 3 years of service, but not less 
than the amount purchasable by J's account balance. J's average 
compensation for the high 3 years is $50,000.
    (ii) As a result of the conversion of the defined contribution plan 
into the defined benefit plan, J becomes subject to the 1.4 limitation 
of section 415(e) and this section because he has at one time 
participated in a defined contribution plan and has at one time 
participated in a defined benefit plan maintained by M. Although the 
defined contribution plan is no longer in existence, J must still take 
the defined contribution plan fraction into account. A defined 
contribution plan fraction must continue to be taken into account 
regardless of whether the plan has been converted into another plan or 
whether the plan is terminated and distributions are made to 
participants.
    (iii) Even though J is subject to the limitations of section 415(e) 
and this section, in computing the defined benefit plan fraction, the 
special rule set forth in Sec. 1.415-3(b)(1)(iv) is applicable based on 
the facts of this example. That rule provides that when there is a 
transfer of assets or liabilities from one qualified plan to another, 
the annual benefit attributable to the assets transferred does not have 
to be taken into account by the transferee plan in applying the 
limitations of section 415. (For purposes of section 415, a conversion 
of a defined contribution plan into a defined benefit plan is considered 
such a transfer.) Assume that one-half of J's annual benefit under the 
defined benefit plan is attributable to the assets transferred from the 
defined contribution plan. This means that by applying the special rule 
set forth in Sec. 1.415-3(b)(1)(iv), only one-half of J's projected 
annual benefit must be taken into account in computing J's defined 
benefit plan fraction. Accordingly, because J's defined benefit plan 
fraction is only 25 percent (\1/2\ of 50% of high 3 years of 
compensation ($12,500) divided by 100% of high 3 years of compensation 
($50,000)) and not 50 percent (which would have been the case absent the 
special rule of Sec. 1.415-3(b)(1)(iv), the 140 percent limitation of 
section 415(e) and this section is not violated.
    (f) Special rules where records are not available for past periods--
(1) In general. The rules described in paragraph (f) (2) and (3) of this 
section apply only if the plan is unable to compute the defined 
contribution plan fraction because of the unavailability of records with 
respect to limitation years ending before the first limitation year to 
which section 415 applies to the plan.
    (2) Defined contribution plan fraction for first limitation year to 
which section 415 applies to a plan. For purposes of paragraph (c) of 
this section, the defined contribution plan fraction for the first 
limitation year to which section 415 and this section apply to a plan 
equals the following fraction:
    (i) The numerator of the fraction is the sum of the participant's 
account balance as of the valuation date under the plan immediately 
preceding November 2, 1975, plus any additions to the participant's 
account made subsequent to that valuation date and through the end of 
the first limitation year to which section 415 applies to the plan. In 
determining the participant's account balance as of the valuation date 
under the plan immediately preceding November 2, 1975, for purposes of 
this subdivision, one-half of all employee contributions (whether 
voluntary or mandatory) are not taken into account.
    (ii) The denominator of the fraction is the sum of the maximum 
allowable annual additions under section 415(c) and Sec. 1.415-6 for 
each limitation year, including the first limitation year to which 
section 415 applies to the plan, in which the participant had a year of

[[Page 706]]

service with the employer (see Sec. 1.415-3(g)(1) for rules relating to 
the determination of a year of service). In determining the maximum 
allowable annual additions for purposes of this subdivision, the 
compensation limitation (as described in section 415(c)(1)(B)) taken 
into account for all of such limitation years is the applicable 
compensation limitation for the first limitation year to which section 
415 applies to the plan and the dollar limitation taken into account for 
each such limitation year is the dollar limitation described in section 
415(c)(1)(A), as adjusted for cost-of-living increases under section 
415(d)(1)(B).
    (3) Defined contribution plan fraction for future limitation years. 
For purposes of paragraph (c) of this section, with respect to all 
limitation years after the first limitation year to which section 415 
applies to the plan, the defined contribution plan fraction for the 
current limitation year equals a fraction. The numerator of the fraction 
is the amount determined under paragraph (g)(2)(i) of this section, plus 
any subsequent annual additions made to the participant's account 
through the end of the current limitation year. The denominator of the 
fraction equals the sum of--
    (i) The amount determined under subparagraph (2)(ii) of this 
paragraph, plus
    (ii) The sum of the maximum allowable annual additions under section 
415(c) and Sec. 1.415-6 for the current limitation year and all prior 
limitation years beginning after the end of the first limitation year to 
which section 415 applies to the plan.
    (g) Special rule for certain plans in effect on date of enactment. 
In the case of an individual who, on September 2, 1974, was a 
participant in a defined benefit and defined contribution plan 
maintained by the same employer and with respect to whom the sum of the 
defined benefit plan fraction and the defined contribution plan fraction 
for the limitation year during which such date falls (determined as of 
the close of that limitation year) exceeded 140 percent, the sum of such 
fractions may continue to exceed 140 percent for any particular future 
limitation year, but only if the conditions set forth in paragraph (g) 
(1) and (2) of this section are satisfied:
    (1) The defined benefit plan fraction of the participant computed as 
of the close of the particular limitation year does not exceed such 
fraction computed as of the close of the limitation year during which 
September 2, 1974, falls.
    (2) After September 2, 1974,
    (i) No employer contributions are allocated to the participant's 
account under any defined contribution plan,
    (ii) No forfeitures arising under any defined contribution plan are 
allocated to the participant's account,
    (iii) No voluntary employee contributions are made by the 
participant under any defined contribution or defined benefit plan, and
    (iv) No mandatory employee contributions are made by the participant 
under any defined contribution plan.
    (h) Special rules for section 403(b) annuity contracts--(1) In 
general. For purposes of section 415, the following rules shall apply:
    (i) In the case of an annuity contract described in section 403(b), 
the participant, on whose behalf the annuity contract is purchased, is 
considered to have exclusive control of the annuity contract. 
Accordingly, the participant, and not the participant's employer who 
purchased the section 403(b) annuity contract, is deemed to maintain the 
annuity contract.
    (ii) Any contributions by the employer for an annuity contract 
described in this subparagraph are not taken into account in computing 
the defined contribution plan fraction applicable to the participant for 
the limitation year.
    (2) Special rules under which the employer is deemed to maintain the 
annuity contract. (i) The provisions of this paragraph and not paragraph 
(h)(1) of this section apply for a particular limitation year with 
respect to a participant on whose behalf a section 403(b) annuity 
contract is purchased, if that participant is in control of any employer 
within the meaning of section 414 (b) or (c), as modified by section 
415(h). Under these circumstances, the section 403(b) annuity contract 
for the benefit of the participant is treated as a defined contribution 
plan maintained by both the

[[Page 707]]

controlled employer and the participant for that limitation year.
    (ii) The provisions of this paragraph also apply for a particular 
limitation year if a participant on whose behalf a section 403(b) 
annuity contract is purchased has elected, under section 415(c)(4)(D) 
and Sec. 1.415-6(e)(6), to have the provisions of section 415(c)(4)(C) 
and Sec. 1.415-6(e)(5) apply for the taxable year with or within which 
such limitation year ends. In such a case, the exclusion allowance 
determined under section 403(b)(2)(A) is not applicable to the annuity 
contract for the particular limitation year, and the annuity contract is 
treated as a defined contribution plan maintained by both the employer 
and the participant for that limitation year.
    (iii) For purposes of the limitations of section 415(e) and this 
section, where a section 403(b) annuity contract is treated as a defined 
contribution plan maintained by the employer under this subparagraph, 
any contributions made for the annuity contract for a participant are 
taken into account in computing the defined contribution plan fraction 
applicable to that participant for the limitation year. Thus, for 
example, if a doctor is employed by an educational organization which 
provides him with a section 403(b) annuity contract and also maintains a 
private practice as a shareholder owning more than 50 percent of a 
professional corporation, any qualified defined benefit plan of the 
professional corporation must be aggregated with the section 403(b) 
annuity contract for purposes of applying the limitations of section 
415(e) and this section.
    (3) Special rule with respect to salary reduction agreements. The 
rules provided in this paragraph are applicable whether or not the 
section 403(b) annuity contract is purchased in connection with a salary 
reduction agreement between the employer and participant.
    (4) Special rules relating to the aggregation of the annuity 
contract with a qualified plan. (i) Where a section 403(b) annuity 
contract is aggregated with a qualified defined benefit plan in a 
limitation year because of the application of the rules of paragraph 
(h)(2) of this section, all contributions made to the annuity contract 
for a participant in prior limitation years shall be taken into account 
in computing the participant's defined contribution plan fraction. 
However, the rule described in the preceding sentence is not applicable 
if the aggregation is solely attributable to the participant's election 
to have the provisions of section 415(c)(4)(C) apply. Accordingly, in 
any case in which aggregation is required as a result of the application 
of paragraph (h)(2)(ii) of this section, all contributions made to the 
annuity contract for a participant in prior limitation years in which 
paragraph (h)(1) of this section was applicable do not have to be taken 
into account in computing the defined contribution plan fraction 
applicable to the participant.
    (ii) Any contributions made to a section 403(b) annuity contract for 
a participant in any limitation year in which the rules of paragraph 
(h)(2)(ii) of this section are applicable shall be taken into account in 
subsequent limitation years even though the rules of such paragraph are 
no longer applicable.
    (iii) See paragraph (c)(2) of this section for special rules 
relating to the defined contribution plan fraction for a participant on 
whose behalf a section 403(b) annuity contract has been purchased.
    (5) Examples. The application of this paragraph may be illustrated 
by the following examples:

    Example (1). A is employed by a hospital which is described in 
section 501(c)(3) and exempt from tax under section 501(a). The hospital 
purchases an annuity contract described in section 403(b) on A's behalf 
for the current limitation year. The hospital also maintains a qualified 
defined benefit plan during the current limitation year in which A is a 
participant, but it does not maintain a qualified defined contribution 
plan during that limitation year. With respect to the annuity contract. 
A does not elect to have the provisions of section 415(c)(4)(C) apply 
for the current limitation year. Also, A is not in control of any 
employer within the meaning of section 414 (b) or (c), as modified by 
section 415(h). For purposes of section 415, under subparagraph (1) of 
this paragraph, A is considered to have exclusive control of the annuity 
contract. Therefore, because A (and not the hospital) is treated as 
maintaining the annuity contract and because the hospital does not 
maintain any defined contribution plan, the limitations of section

[[Page 708]]

415(e) and this section are not applicable to A for either the annuity 
contract or the hospital's defined benefit plan for the current 
limitation year.
    Example (2). Assume the same facts as in example (1), except that 
the hospital also maintains a qualified defined contribution plan during 
the limitation year in which A is a participant. Because the hospital is 
not considered to be maintaining the section 403(b) annuity contract, 
contributions made to the annuity contract on behalf of A during the 
current limitation year by the hospital are not taken into account in 
computing the defined contribution plan fraction applicable to A for the 
plans maintained by the hospital for that limitation year.
    Example (3). Assume the same facts as in example (1), except that A 
has elected to have the provisions of section 415(c)(4)(C) apply to the 
annuity contract for the current limitation year. Under the special 
rules contained in subparagraph (2) of this paragraph, the annuity 
contract is treated as a defined contribution plan maintained by the 
hospital as well as a defined contribution plan maintained by A. 
Accordingly, because the hospital is also maintaining a qualified 
defined benefit plan, the limitations of section 415(e) and this section 
are applicable to A for the annuity contract and the defined benefit 
plan maintained by the hospital in the current limitation year.
    Example (4). J is employed by a hospital which is described in 
section 501(c)(3) and exempt from tax under section 501(a). The hospital 
purchases an annuity contract described in section 403(b) on J's behalf 
for the current limitation year. The hospital does not maintain any 
qualified plans during that limitation year. However, for the limitation 
year, J is in control (within the meaning of section 414 (b) or (c), as 
modified by section 415(h)) of employer M. M maintains a qualified 
defined benefit plan during that limitation year. Under the special 
rules contained in subparagraph (2) of this paragraph, the annuity 
contract is treated as a defined contribution plan maintained by M (the 
controlled employer) as well as a defined contribution plan maintained 
by J. Therefore, because M is also maintaining a qualified defined 
benefit plan, the limitations of section 415(e) and this section are 
applicable to J for the annuity contract and the defined benefit plan 
maintained by M in the current limitation year.

    (i) Special rules for individual retirement plans. For purposes of 
section 415, an individual on whose behalf an individual retirement plan 
(as described in section 7701(a)(37)) is maintained is considered to 
have exclusive control of such plan. Therefore, the individual is 
treated as maintaining such plan. However, if that individual is in 
control of any employer within the meaning of section 414 (b) or (c), as 
modified by section 415(h), the individual retirement plan for the 
benefit of such individual is treated as a defined contribution plan 
maintained by both the controlled employer and such individual.

[T.D. 7748, 46 FR 1711, Jan. 7, 1981]



Sec. 1.415-8  Combining and aggregating plans.

    (a) In general. Under section 415(f) and this section, for purposes 
of applying the limitations of section 415 (b), (c), and (e) applicable 
to a participant for a particular limitation year--
    (1) All qualified defined benefit plans (without regard to whether a 
plan has been terminated) ever maintained by the employer will be 
treated as one defined benefit plan, and
    (2) All qualified defined contribution plans (without regard to 
whether a plan has been terminated) ever maintained by the employer will 
be treated as one defined contribution plan.
    (b) Annual compensation taken into account where employer maintains 
more than one defined benefit plan. If more than one qualified defined 
benefit plan is being aggregated under paragraph (a) of this section for 
a particular limitation year, in applying the defined benefit 
compensation limitation (as described in section 415(b)(1)(B)) to the 
annual benefit of a participant under each plan, the participant's high 
3 years of compensation is determined in accordance with Sec. 1.415-
3(a)(3).
    (c) Affiliated employers. Any qualified defined benefit plan or 
qualified defined contribution plan maintained by any member of a 
controlled group of corporations (within the meaning of section 414(b) 
as modified by section 415(h)) or by any trade or business (whether or 
not incorporated) under common control (within the meaning of section 
414(c) as modified by section 415(h)) is deemed maintained by all such 
members or such trades or businesses.
    (d) Section 403(b) annuity contracts--(1) In general. In the case of 
an annuity contract described in section 403(b), except as provided in 
subparagraph (2) of this paragraph, the participant on whose behalf the 
annuity contract is

[[Page 709]]

purchased is considered to have exclusive control of the annuity 
contract. Accordingly, the participant, and not the participant's 
employer who purchased the section 403(b) annuity contract, is deemed to 
maintain the annuity contract.
    (2) Special rules under which the employer is deemed to maintain the 
annuity contract. If a participant on whose behalf a section 403(b) 
annuity contract is purchased has elected to have the provisions of 
section 415(c)(4)(C) and Sec. 1.415-6(e)(5) apply for a taxable year, 
the annuity contract is treated as a defined contribution plan 
maintained by both the employer that purchased the annuity contract and 
the participant on whose behalf it was purchased for the limitation year 
which ends during such taxable year. Even if the election under section 
415(c)(4)(C) is not made, where a participant, on whose behalf a section 
403(b) annuity contract is purchased, is in control of any employer 
within the meaning of section 414 (b) or (c) as modified by section 
415(h) for a limitation year, the annuity contract for the benefit of 
the participant is treated as a defined contribution plan maintained by 
both the controlled employer and the participant for that limitation 
year. Thus, for example, if a doctor is employed by an educational 
organization which provides him with a section 403(b) annunity contract 
and also maintains a private practice as a shareholder owning more than 
50 percent of a professional corporation, any qualified defined 
contribution plan of the professional corporation must be combined with 
the section 403(b) annuity contract for purposes of applying the 
limitations of section 415(c) and Sec. 1.415-6. For purposes of this 
paragraph, it is immaterial whether the section 403(b) annuity contract 
is purchased as a result of a salary reduction agreement between the 
employer and the participant.
    (e) Multiemployer plans. Multiemployer plans, as defined in section 
414(f), shall not be aggregated with other multiemployer plans. However, 
where an employer maintains both a plan which is not a multiemployer 
plan and a multiemployer plan, the plan which is not a multiemployer 
plan shall be aggregated (based on its limitation year) with the 
multiemployer plan to the extent that benefits provided under the 
multiemployer plan are provided by such employer with respect to a 
common participant. See Sec. 1.415-1(e)(2) for a rule relating to the 
computation of the benefits provided by an employer under a section 
414(f) multiemployer plan.
    (f) Special rules for combining certain plans, etc. If a plan, 
annuity contract or arrangement is subject to a special limitation in 
addition to, or instead of, the regular limitations described in section 
415 (b) or (c), and is combined under this section with a plan which is 
subject only to the regular section 415 (b) or (c) limitations, the 
following rules shall apply:
    (1) Each plan, annuity contract or arrangement which is subject to a 
special limitation must meet its own applicable limitation and each plan 
subject to the regular limitations of section 415 must meet its 
applicable limitation.
    (2) The combined limitations shall be the larger of the applicable 
limitations.
    (g) Special priority rule for TRASOP's. For a special rule 
concerning allocations to a participant's account under an Employee 
Stock Ownership Plan under section 301(d) of the Tax Reduction Act of 
1975, see Sec. 1.46-6(d)(6)(v).
    (h) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example (1). M is an employee of ABC Corporation and XYZ 
Corporation. ABC maintains a qualified noncontributory defined benefit 
plan in which M participates and XYZ maintains a qualified defined 
contribution plan in which M participates. ABC Corporation and XYZ 
Corporation are members of a controlled group of corporations within the 
meaning of section 414(b) as modified by section 415(h). Because ABC 
Corporation and XYZ Corporation are members of a controlled group of 
corporations within the meaning of section 414(b) as modified by section 
415(h), M is treated as being employed by a single employer. Thus, M's 
annual benefit under the defined benefit plan maintained by ABC may not 
exceed the limitations of section 415(b) and Sec. 1.415-3; the annual 
additions to M's account under the defined contribution plan maintained 
by XYZ may not exceed the limitations of section 415(c) and Sec. 1.415-
6; and, in addition, the two plans may not exceed the limitations of 
section 415(e) and Sec. 1.415-7.

[[Page 710]]

    Example (2). Assume the same facts as in example (1), except that 
the qualified defined benefit plan maintained by ABC Corporation 
provides for employee contributions (whether mandatory or voluntary). 
Under Sec. 1.415-3(d), ABC Corporation will be considered to be 
maintaining a defined contribution plan consisting of M's contributions 
to the defined benefit plan. For purposes of applying the limitations of 
section 415(e) and Sec. 1.415-7, the qualified defined benefit plan 
maintained by ABC must be combined with the defined contribution plan 
which ABC is considered to maintain. In addition, because corporations 
ABC and XYZ are members of a controlled group of corporations (within 
the meaning of section 414(b), as modified by section 415(h)), for 
purposes of applying the limitations of section 415(c) and Sec. 1.415-6, 
the qualified defined contribution plan maintained by XYZ must be 
combined with the define contribution plan which ABC is considered to be 
maintaining and the defined contribution plans (as combined) must be 
aggregated with the qualified defined benefit plan maintained by ABC for 
purposes of the limitations imposed by section 415(e) and Sec. 1.415-7.

[T.D. 7748, 46 FR 1715, Jan. 7, 1981]



Sec. 1.415-9  Disqualification of plans and trusts.

    (a) In general. Under section 415(g) and this section, with respect 
to a particular limitation year, a plan (and the trust forming part of 
the plan) is disqualified in accordance with the rules provided in 
paragraph (b) of this section, if any of the following conditions exist:
    (1) Annual additions (as defined in Sec. 1.415-6(b)) with respect to 
the account of any participant in a qualified defined contribution plan 
maintained by the employer exceed the limitations of section 415(c) and 
Sec. 1.415-6.
    (2) The annual benefit (as defined in Sec. 1.415-3(b)(1)) of a 
participant in a qualifed defined benefit plan maintained by the 
employer exceeds the limitations of section 415(b) and Sec. 1.415-3.
    (3) The combination of annual additions with respect to the account 
of any participant in a qualified defined contribution plan and the 
projected annual benefit payable with respect to such participant in a 
qualified defined benefit plan maintained by the employer exceeds the 
limitations of section 415(e) and Sec. 1.415-7.

For purposes of this paragraph, the determination of whether a plan or a 
combination of plans exceeds the limitations imposed by section 415 for 
a particular limitation year is, except as otherwise provided, made by 
taking into account the aggregation of plan rules provided in sections 
415(f) and 414 (b) and (c) (as modified by section 415(h)).
    (b) Rules for disqualification of plans and trusts--(1) In general. 
Any plan (including a trust which forms part of such plan) that is 
disqualified in a particular limitation year under the rules set forth 
in this paragraph, shall be disqualified as of the first day of the 
first plan year containing any portion of the particular limitation 
year.
    (2) Single plan. In the case of a single qualified defined benefit 
plan maintained by the employer that provides an annual benefit (as 
defined in Sec. 1.415-3(b)(1)) in excess of the limitations of section 
415(b) and Sec. 1.415-3 for any particular limitation year, such plan is 
disqualifed in that limitation year. Similarly, if the employer only 
maintains a single defined contribution plan under which annual 
additions (as defined in Sec. 1.415-6(b)) allocated to the account of 
any participant exceed the limitations of section 415(c) and Sec. 1.415-
6 for any particular limitation year, such plan is also disqualifed in 
that limitation year.
    (3) More than one plan. In the event that the limitations of section 
415(b) and Sec. 1.415-3, or section 415(c) and Sec. 1.415-6 are exceeded 
for a particular limitation year with respect to any participant because 
of the application of the aggregation rules of section 415(f)(1) or 
section 414 (b) or (c), as modified by section 415(h), one or more of 
the plans shall be disqualifed in accordance with the rules set forth in 
this subparagraph. Similarly, if the limitations of section 415(e) and 
Sec. 1.415-7 are exceeded for a particular limitation year with respect 
to any participant because of the application of such aggregation rules 
(although if an individual participates in a defined contribution and 
defined benefit plan maintained by the same employer, these limitations 
may be exceeded even without the application of such aggregation rules), 
one or more of the plans

[[Page 711]]

shall be disqualified in accordance with the following rules:
    (i) If there are two plans and one of the plans has been terminated 
at any time including the last day of the particular limitation year, 
the plan which has not been so terminated (whether or not that plan is a 
multiemployer plan described in section 414(f)) is disqualified in that 
limitation year.
    (ii) If there are two plans and neither plan has been terminated at 
any time including the last day of the particular limitation year, and 
if one of the plans is a multiemployer plan described in section 414(f), 
the plan which is not a multiemployer plan is disqualified in that 
limitation year. For purposes of the preceding sentence, the 
determination of whether a plan is a multiemployer plan described in 
section 414(f) is made as of the last day of the particular limitation 
year.
    (iii) If there are two plans of an employer and neither plan has 
either been terminated at any time including the last day of the 
particular limitation year or determined to be a multiemployer plan 
described in section 414(f) as of such day, the employer may elect, in a 
manner determined by the Commissioner, the plan that is disqualified. If 
the two plans described in this subdivision are involved because of the 
application of section 414 (b) or (c), as modified by section 415(h), 
the employers of the controlled group may elect, in a manner determined 
by the Commissioner, the plan that is disqualified. However, the 
election described in the preceding sentence is not effective unless 
made by all of the employers within the controlled group. For purposes 
of this subdivision, the elected plan is disqualified in the particular 
limitation year.
    (iv) If the election described in subdivision (b)(3)(iii) of this 
paragraph is not made with respect to the two plans described in such 
subdivision, the Commissioner, taking into account all of the facts and 
circumstances, shall have the discretion to determine the plan that is 
disqualified in the particular limitation year. In making this 
determination, some of the factors that will be taken into account 
include, but are not limited to, the number of participants in each plan 
and the amount of benefits provided on an overall basis by each plan.
    (v) If more than two plans are involved, a plan or plans shall be 
disqualified in the particular limitation year in accordance with the 
principles contained in this subparagraph.
    (4) Special rules for simplified employee pension. If there are two 
or more plans and if one of the plans is a simplified employee pension 
(as defined in section 408(k)), the simplified employee pension shall 
not be disqualified until all of the other plans have been disqualified. 
However, if one of the plans has been terminated, the simplified 
employee pension shall be disqualified before the terminated plan. For 
purposes of this subparagraph, the disqualification of a simplified 
employee pension means that the simplified employee pension is no longer 
described under section 408(k).
    (c) Special rules concerning section 403(b) annuity contracts--(1) 
In general. If aggregating or combining a section 403(b) annuity 
contract and a qualified plan causes the applicable limitations of 
section 415 to be exceeded, the exclusion allowance under section 
403(b)(2) shall be adjusted first to the extent necessary to satisfy 
such limitations.
    (2) Aggregating section 403(b) annuity contract and qualified 
defined benefit plan. In the event that aggregating a section 403(b) 
annuity contract and a qualified defined benefit plan causes the 
limitations of section 415(e) and Sec. 1.415-7 to be exceeded with 
respect to a participant for a particular limitation year, the amount of 
the contribution to the annuity contract in excess of such limitations 
is treated as a disqualified contribution and therefore includable in 
the gross income of the participant for the taxable year with or within 
which that limitation year ends. Furthermore, for purposes of computing 
the exclusion allowance under section 403(b)(2)(A) for future taxable 
years with respect to such participant, the disqualified contribution is 
treated as an amount contributed by the employer for an annuity contract 
which was excludable from the participant's gross income under section 
403(b)(2)(A)(ii). Thus, for future taxable years, the exclusion 
allowance will be

[[Page 712]]

reduced by the amount of the disqualified contribution even though such 
amount was not excludable from the participant's gross income in the 
taxable year when it was made. See Sec. 1.415-7(c)(2) for special rules 
relating to the defined contribution plan fraction applicable to an 
individual on whose behalf a section 403(b) annuity contract has been 
purchased.
    (3) Combining section 403(b) annuity contract and qualified defined 
contribution plan. In the event that combining a section 403(b) annuity 
contract and a qualified defined contribution plan under the provisions 
of section 415(f)(1)(B) causes the limitations of section 415(c) and 
Sec. 1.415-6 applicable to a participant under the defined contribution 
plan to be exceeded for a particular limitation year, the excess of the 
contributions to the annuity contract plus the annual additions to the 
plan over such limitations is treated as a disqualified contribution to 
the annuity contract and therefore includable in the gross income of the 
participant for the taxable year with or within which that limitation 
year ends. Furthermore, for purposes of computing the exclusion 
allowance under section 403(b)(2)(A) for future taxable years with 
respect to such participant, the disqualified contribution is treated as 
an amount contributed by the employer for an annuity contract which was 
excludable from the participant's gross income under section 
403(b)(2)(A)(ii). Thus, for future taxable years, the exclusion 
allowance will be reduced by the amount of the disqualified contribution 
even though such amount was not excludable from the participant's gross 
income in the taxable year when it was made.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example (1). N is employed by a hospital which purchases an annuity 
contract described in section 403(b) on N's behalf for the current 
limitation year. The current limitation year is N's first year of 
service with the hospital. Solely for the purpose of illustrating the 
rules set forth in this paragraph, assume that N is in control of the 
hospital within the meaning of section 414 (b) or (c), as modified by 
section 415(h). Therefore, under section 415(e)(5), the section 403(b) 
annuity contract is treated as a defined contribution plan maintained by 
the hospital and N. The hospital also maintains a qualified defined 
contribution plan during the current limitation year in which N 
participates, but it does not maintain any other qualified plan. N's 
compensation (within the meaning of Sec. 1.415-2(d)) from the hospital 
for the current limitation year is $20,000. N does not elect any of the 
alternative limitations provided in section 415(c)(4) for the section 
403(b) annuity contract. For the current limitation year, the hospital 
contributes $3,000 for the section 403(b) annuity contract on N's 
behalf, which is within the limitations applicable to N under the 
annuity contract (i.e., the lesser of the exclusion allowance under 
section 403(b)(2)(A) ($4,000) or the limitations of section 415(c)(1) 
($5,000)). The hospital also contributes $3,000 to the qualified plan on 
N's behalf for the current limitation year (which represents the only 
annual additions allocated to N's account under the plan for such year), 
which is within the $5,000 limitation of section 415(c)(1) applicable to 
N under the plan. However, under section 415(f)(1)(B), for purposes of 
applying the limitations of section 415(c) and Sec. 1.415-6, the 
hospital is considered to maintain only one defined contribution plan 
and thus, all contributions to the annuity contract and to the regular 
plan must be combined. Because the total combined contributions ($6,000) 
exceed the section 415(c) limitation applicable to N under the plan 
($5,000), under the special rules contained in this paragraph, $1,000 of 
the $3,000 contributed to the section 403(b) annuity contract is 
considered a disqualified contribution and therefore currently 
includable in N's gross income. Furthermore, in computing N's exclusion 
allowance for the section 403(b) annuity contract for future taxable 
years, besides the $3,000 contributed to the qualified plan, the $3,000 
contributed for the section 403(b) annuity contract is also considered 
an amount contributed by the employer and excludable from N's gross 
income for purposes of section 403(b)(2)(A)(ii), even though only $2,000 
of this amount was excludable from N's gross income.
    Example (2). Assume the same facts as in example (1), except that 
instead of the defined contribution plan the hospital maintains a 
qualified defined benefit plan during the current limitation year in 
which N participates. Because the hospital is considered to be 
maintaining a defined contribution plan (in the form of a section 403(b) 
annuity contract) in addition to its defined benefit plan, the 
limitations of section 415(e) and Sec. 1.415-7 are applicable to N for 
the current limitation year. If N's defined benefit plan fraction for 
the current limitation year is 1.0, then to satisfy the limitations of 
section 415(e) and Sec. 1.415-7, N's defined contribution plan fraction 
may not exceed .4 for the current limitation year. This means that only

[[Page 713]]

$2,000 (i.e. 40% of $5,000--the applicable limitation to N for the 
annuity contract under the special rule set forth in Sec. 1.415-
7(c)(2)(i)) could have been contributed to the annuity contract on N's 
behalf for the current limitation year without violating the 1.4 
limitation of section 415(e) and Sec. 1.415-7. However, because the 
hospital contributed $3,000 to the section 403(b) annuity contract on 
N's behalf, under the special rules contained in this paragraph, $1,000 
of this amount is considered a disqualified contribution and therefore 
currently includable in N's gross income. Furthermore, in computing N's 
exclusion allowance for the section 403(b) annuity contract for future 
taxable years, the $3,000 contributed to the annuity contract is 
considered the amount contributed by the employer and excludable from 
N's gross income for purposes of section 403(b)(2)(A)(ii), even through 
only $2,000 of this amount was excludable from N's gross income.

[T.D. 1716, 46 FR 1716, Jan. 7, 1981]



Sec. 1.415-10  Special aggregation rules.

    (a) General rules relating to aggregation of plans during limitation 
year--(1) Scope of aggregation rules. This section provides rules for 
those situations in which two or more existing plans, which previously 
were unaggregated, are aggregated during a particular limitation year on 
or after the effective date of section 415 and these regulations, and as 
a result, the limitations of section 415 (b), (c) or (e) are exceeded 
for that limitation year. The rules described in this section are also 
applicable with respect to the aggregation of benefits under a 
multiemployer plan described in section 414(f) that previously were not 
required to be aggregated.
    (2) Controlling date of aggregation. For purposes of this section, 
plans which are not aggregated as of the first day of a limitation year 
will not be considered aggregated for that limitation year. 
Notwithstanding the preceding sentence, if a section 403(b) annuity 
contract is aggregated with a qualified plan because of the election by 
the individual on whose behalf the annuity contract is purchased to have 
the provisions of section 415(c)(4)(C) apply for the taxable year, the 
annuity contract and the plan are deemed to be aggregated as of the 
first day of the limitation year ending with or within such taxable 
year.
    (3) Aggregation of additions and benefits. If plans are aggregated 
under this section, the following rules shall apply:
    (i) All annual additions credited to a participant's account under a 
defined contribution plan prior to the aggregation of such plan shall be 
taken into account in computing the participant's defined contribution 
plan fraction for purposes of applying the limitations of section 415(e) 
to the aggregated plans.
    (ii) The annual benefit or projected annual benefit (whichever is 
applicable) of a participant under a defined benefit plan prior to the 
aggregation of such plan shall be taken into account for purposes of 
applying the limitations of section 415(b) or section 415(e) to the 
aggregated plans.
    (iii) For a special rule relating to the aggregation of 
contributions to a section 403(b) annuity contract upon the aggregation 
of the annuity contract with a qualified plan, see Sec. 1.415-
7(h)(4)(i).
    (b) Aggregation of defined benefit plans. In the case of an 
individual who is a participant in two or more defined benefit plans and 
with respect to whom the limitations of section 415(b) and Sec. 1.415-3 
are exceeded for a particular limitation year because of the aggregation 
of the plans for that limitation year, the limitations of section 415(b) 
and Sec. 1.415-3 may be exceeded for that limitation year and for future 
limitation years provided that there is no increase in the participant's 
accrued benefit derived from employer contributions during the period 
within which these limitations are being exceeded.
    (c) Aggregation of defined benefit and defined contribution plan. In 
the case of an individual who has at any time participated in a defined 
benefit plan and also has at any time participated in a defined 
contribution plan and with respect to whom the limitations of section 
415(e) and Sec. 1.415-7 are exceeded for a particular limitation year 
because of the aggregation of the plans for that limitation year, the 
limitations of section 415(e) and Sec. 1.415-7 may be exceeded for that 
limitation year and for future limitation years provided that the 
following conditions are complied with during that period:
    (1) The participant's accrued benefit derived from employer 
contributions in

[[Page 714]]

the defined benefit plan is not increased.
    (2) No employer contributions are allocated to the participant's 
account under any defined contribution plan.
    (3) No forfeitures arising under any defined contribution plan are 
allocated to the participant's account.
    (4) No voluntary employee contributions are made by the participant 
under any defined benefit or defined contribution plan.
    (5) No mandatory employee contributions are made by the participant 
under any defined contribution plan.
    (d) Limitation year for aggregated plans. If the plans which are 
aggregated under this section have different limitation years, 
subparagraph (1) or (2) of this paragraph must be complied with.
    (1) The relevant employer or employers must elect the limitation 
year that is to be controlling. This election shall be made by the 
adoption of a written resolution by the employer or employers. See 
Sec. 1.415-2(b)(4) for rules relating to a change in the limitation 
year.
    (2) The employer or employers may continue to use different 
limitation years for each plan in accordance with rules determined by 
the Commissioner.

If, in accordance with paragraph (d)(1) of this section, one limitation 
year is elected, and if the plans which are aggregated covered at least 
one common participant prior to being aggregated, that limitation year 
shall be applicable for past years for purposes of computing the defined 
contribution fraction for those years. For special rules relating to the 
computation of the defined contribution plan fraction where records are 
not available for past periods, see Sec. 1.415-7(f).
    (e) The provisions of this section may be illustrated by the 
following examples:

    Example (1). J is an employee of two unrelated corporations, N and 
M. Each corporation has a qualified defined benefit plan in which J 
participates. Each plan provides a benefit which is equal to 75 percent 
of a participant's average compensation for his high 3 years of service 
and is payable in the form of a straight life annuity beginning at age 
65. J's average compensation (within the meaning of Sec. 1.415-2(d)) for 
his high three years of service from each corporation is $80,000. Each 
plan uses the calendar year for the limitation and plan year. In July, 
1978, N Corporation becomes a wholly owned subsidiary of M Corporation, 
and as a result, J is treated as being employed by a single employer 
under section 414(b). Therefore, because section 415(f)(1)(A) requires 
that all defined benefit plans of an employer be treated as one defined 
benefit plan, the two plans must be aggregated for purposes of applying 
the limitations of section 415. (Although, under paragraph (a)(2) of 
this section, since the plans were not aggregated as of the first day of 
the 1978 limitation year (January 1, 1978), they will not be considered 
aggregated until the limitation year beginning January 1, 1979.) As a 
result of such aggregation, J becomes entitled to a combined benefit 
which is equal to $120,000, which is in excess of the section 415(b) 
dollar limitation for 1979 of $98,100. However, under paragraph (b) of 
this section, the limitations of section 415(b) and Sec. 1.415-3 
applicable to J may be exceeded in this situation without plan 
disqualification, so long as J's accrued benefit derived from employer 
contributions is not increased during the period within which the 
limitations are being exceeded.
    Example (2). A, age 30, owns all of the stock of X Corporation and 
also owns 10 percent of the stock of Z Corporation. F, A's father, 
directly owns 75 percent of the stock of Z corporation. Both 
corporations have qualified defined contribution plans in which A 
participates and both plans use the calendar year for the limitation and 
plan year. A's compensation (within the meaning of Sec. 1.415-6(a)(3)) 
for 1976 is $40,000 from Z Corporation and $150,000 from X Corporation. 
During 1976, annual additions of $10,000 are credited to A's account 
under the plan of Z Corporation, while annual additions of $26,825 are 
credited to A's account under the plan of X Corporation. In both 
instances, the amount of annual additions represent the maximum 
allowable under section 415(c) and Sec. 1.415-6. On July 15, 1976, F 
dies, and A inherits all of F's stock in Z in 1976. Because under 
section 414(b), A is considered to be in control of X and Z 
Corporations, the two plans must be aggregated for purposes of applying 
the limitations of section 415. However, even though A's total annual 
additions for 1976 are $36,825, the limitations of section 415(c) and 
Sec. 1.415-6 are not violated for 1976, because, under paragraph (a)(2) 
of this section, the two plans are considered separate plans for that 
year since they were not aggregated as of the first day of that year.

[T.D. 1718, 46 FR 1718, Jan. 7, 1981]



Sec. 1.416-1  Questions and answers on top-heavy plans.

    The following questions and answers relate to special rules for top-
heavy plans under section 416 of the Internal

[[Page 715]]

Revenue Code of 1954, as added by section 240 of the Tax Equity and 
Fiscal Responsibility Act of 1982 (Pub. L. 97-248) (TEFRA), and amended 
by sections 524 and 713(f) of the Tax Reform Act of 1984 (Pub. L. 98-
369):

                            Table of Contents

    G--General Provisions
    T--Top-Heaviness Determinations
    V--Vesting Rules for Top-Heavy Plans
    M--Minimum Benefits Under Top-Heavy Plans

                          G. General Provisions

    G-1 Q. What requirement plans are subject to the top-heavy rules 
added to the Code by the Tax Equity and Fiscal Responsibility Act and 
amended by the Tax Reform Act of 1984?
    A. All stock bonus, pension, or profit-sharing plans intended to 
qualify under section 401(a), annuity contracts described in section 
403(a), and simplified employee pensions described in section 408(k) are 
subject to the new top-heavy rules added to the Code by the Tax Equity 
and Fiscal Responsibility Act and amended by the Tax Reform Act 
(``TRA'') of 1984.
    G-2 Q. Is a multiple employer plan subject to the top-heavy 
requirements of section 416?
    A. A multiple employer plan is subject to the requirements of 
section 416, but only with respect to each individual employer. Thus, if 
twelve employers contribute to a multiple employer plan and the accrued 
benefits for the key employees of one employer exceed 60 percent of the 
accrued benefits of all employees for such employer, the plan is top-
heavy with respect to that employer. A failure by the multiple employer 
plan to satisfy section 416 with respect to the employees of such 
employer means that all employers are maintaining a plan that is not a 
qualified plan.
    G-3 Q. As of what date must plan amendments to comply with top-heavy 
rules be effective?
    A. Amendments required to comply with the top-heavy rules must be 
effective as of the first day of the first plan year which begins after 
1983. See Sec. 1.401(b)-1 for the date by which such amendments must be 
adopted.

                     T. Top-Heaviness Determinations

    T-1 Q. What factors must be considered in determining whether a plan 
is top-heavy?
    A. (a) In order to determine whether a plan is top-heavy for a plan 
year, it is necessary to determine which employers will be treated as a 
single employer for purposes of section 416; what the determination date 
is for the plan year; which employees are or formerly were key 
employees; which former employees have not performed any service for the 
employer maintaining the plan at any time during the five-year period 
ending on the determination date; which plans of such employers are 
required or permitted to be aggregated to determine top-heavy status; 
and the present value of the accrued benefits (including distributions 
made during the plan year containing the determination date and the four 
preceding plan years) of key employees, former key employees, and non-
key employees.
    (b) All employers that are aggregated under section 414 (b), (c), 
and (m) must be taken into account as a single employer for the plan 
year in question, and those employees in all plans maintained by the 
employers that are aggregated must be categorized as key employees, as 
former key employees, or as non-key employees. See Question and Answer 
T-12 for the determination of which employees are or were key employees. 
All plans maintained by the employers in which a key employee 
participates, and certain other plans, must then be aggregated (the 
required aggregation group). See Question and Answer T-6 for rules 
concerning required aggregation. Other plans may in some cases be 
aggregated with the required aggregation group. See Question and Answer 
T-7 for rules concerning such permissive aggregation.
    (c) Once aggregated, all plans that are required to be aggregated 
will either be top-heavy or not top-heavy, depending upon whether the 
aggregation group is top-heavy. A plan or aggregation group will be 
considered top-heavy if the sum of the present value of the accrued 
benefits for key employees is more than 60 percent of the sum of the 
present value of accrued benefits of all employees.

[[Page 716]]

    (d) Except as otherwise stated, for purposes of section 416(g), an 
employee is an individual currently or formerly employed by an employer. 
Former key employees are non-key employees and are excluded entirely 
from the calculation to determine top-heaviness. In all cases, the 
present value of accrued benefits includes distributions made during the 
plan year containing the determination date and the preceding four plan 
years. See Questions and Answers T-24 and T-25 for rules concerning the 
account balances and present value of accrued benefits. For plan years 
beginning after December 31, 1984, the accrued benefit of an employee 
who has not performed any sevice for the employer maintaining the plan 
at any time during the five-year period ending on the determination date 
is excluded from the calculation to determine top-heaviness. However, if 
an employee performs no services for five years and then performs 
sevices, such employee's total accrued benefit is included in the 
calculation for top-heaviness.
    T-2 Q. To what extent are multiemployer plans and multiple employer 
plans to which an employer makes contributions on behalf of its 
employees treated as plans of that employer for top-heavy purposes?
    A. Multiemployer plans described in section 414(f) and multiple 
employer plans described in section 413(c) to which an employer makes 
contributions on behalf of its employees are treated as plans of that 
employer to the extent that benefits under the plan are provided to 
employees of the employer because of service with that employer.
    T-3 Q. Must a collectively-bargained plan be aggregated with other 
plans of the employer to determine whether some or all of the employer's 
plans are top-heavy?
    A. A collectively-bargained plan that includes a key employee of an 
employer must be included in the required aggregation group for that 
employer. See Question and Answer T-6 for rules concerning required 
aggregation. A collectively-bargained plan that does not include a key 
employee may be included in a permissive aggregation group. See Question 
and Answer T-7 for rules concerning permissive aggregation. However, the 
special rules in section 416 (b), (c), or (d) applicable to top-heavy 
plans do not apply with respect to any employee included in a unit of 
employees covered by an agreement which the Secretary of Labor finds to 
be a collective-bargaining agreement between employee representatives 
and one or more employers if there is evidence that retirement benefits 
were the subject of good faith bargaining between such employee 
representatives and such employer or employers. In determining whether 
there is a collective-bargaining agreement between employee 
representatives and one or more employers, the additional condition of 
section 7701(a)(46) must be satisfied after March 31, 1984.
    T-4 Q. How is a terminated plan treated for purposes of the top-
heavy rules?
    A. A terminated plan is treated like any other plan for purposes of 
the top-heavy rules. For purposes of section 416, a terminated plan is 
one that has been formally terminated, has ceased crediting service for 
benefit accruals and vesting, and has been or is distributing all plan 
assets to participants or their beneficiaries as soon as 
administratively feasible. Such a plan must be aggregated with other 
plans of the employer if it was maintained within the last five years 
ending on the determination date for the plan year in question and 
would, but for the fact that it terminated, be part of a required 
aggregation group for such plan year. Distributions which have taken 
place within the five years ending on the determination date must be 
accounted for in accordance with section 416(g)(3). No additional 
vesting, benefit accruals or contributions must be provided for 
participants in a terminated plan.
    T-5 Q. How are frozen plans treated for purposes of the top-heavy 
rules?
    A. For purposes of section 416, a frozen plan is one in which 
benefit accruals have ceased but all assets have not been distributed to 
participants or their beneficiaries. Such plans are treated, for 
purposes of the top-heavy rules, as any non-frozen plan. That is, such 
plans must provide minimum contributions or benefit accruals, limit the 
amount of compensation which can be

[[Page 717]]

taken into account in providing benefits, and provide top-heavy vesting. 
A frozen defined contribution plan may not be required to provide 
additional contributions because of the rule in section 416(c)(2)(B).
    T-6 Q. What is a required aggregation group?
    A. For purposes of determining whether the plans of an employer are 
top-heavy for a particular plan year, the required aggregation group 
includes each plan of the employer in which a key employee participates 
in the plan year containing the determination date, or any of the four 
preceding plan years. In addition, each other plan of the employer 
which, during this period, enables any plan in which a key employee 
participates to meet the requirements of section 401(a)(4) or 410 is 
part of the required aggregation group. This concept may be illustrated 
by the following examples:

    Example (1). An employer maintains two plans. Key employees 
participate in one plan, but not in the other. If the plan containing 
key employees independently satisfies the coverage and non-
discrimination rules of sections 410 and 401(a)(4), it may be tested 
independently to determine whether it is top-heavy. Also, the plan not 
covering key employees would not be part of a required aggregation group 
and would not need to be tested to determine whether it is top-heavy. 
However, if the plan containing key employees satisfies the coverage 
requirements of section 410(b) or the non-discrimination requirements of 
section 401(a)(4) only when it is considered together with the other 
plan in accordance with Sec. 1.410(b)-1(d)(3), the plan not covering key 
employees would be part of the required aggregation group.
    Example (2). A sole proprietor terminated a Keogh plan in 1981. In 
1982, the sole proprietor incorporated and established a corporate plan 
with a calendar-year plan year. For purposes of determining whether the 
corporate plan is top-heavy for its 1984 plan year, the terminated Keogh 
plan and the corporate plan would be part of a required aggregation 
group. The sole proprietor and the corporation would be treated as a 
single employer under section 414(c). Under Question and Answer T-4, the 
terminated plan would be aggregated with the corporate plan because it 
was maintained within the five-year period ending on the determination 
date for the 1984 plan year and because, but for the fact that it 
terminated, it would be aggregated with the corporate plan because it 
covered a key employee.

    T-7 Q. What is a permissive aggregation group?
    A. A permissive aggregation group consists of plans of the employer 
that are required to be aggregated, plus one or more plans of the 
employer that are not part of a required aggregation group but that 
satisfy the requirements of sections 401(a)(4) and 410 when considered 
together with the required aggregation group. This concept may be 
illustrated by the following examples:

    Example (1). (a) An employer maintains two plans:
    1. Plan A covers key employees and independently satisfies the 
requirements of sections 410 and 401(a)(4).
    2. Plan B covers no key employees. It also independently satisfies 
the requirements of sections 410 and 401(a)(4).
    (b) As indicated in Question and Answer T-6, Plan B is not required 
to be aggregated with Plan A. Further, if Plan B provided contributions 
or benefits that were not at least comparable to the contributions or 
benefits provided under Plan A, then Plan B could not be permissively 
aggregated with Plan A because the contributions and benefits would 
discriminate if the two plans were considered as a unit. However, if the 
benefits or contributions under Plan B were comparable to those under 
Plan A, the two plans would be permitted to be aggregated to determine 
whether or not the group consisting of both plans is top-heavy. If Plan 
A and Plan B are permitted to be aggregated, and if the permissive 
aggregation group is not top-heavy, then neither Plan A nor Plan B would 
be considered top-heavy.
    Example (2). (a) Employer W maintains two plans.
    1. Plan C covers salaried employees and independently satisfies the 
requirements of sections 410 and 401(a)(4).
    2. Plan D covers employees who are included in a unit of employees 
covered by an agreement which the Secretary of Labor has found to be a 
collective-bargaining agreement between employee representatives and the 
employer and retirement benefits were bargained for between employee 
representatives and the employer.
    (b) The fact that Plan D is a collectively-bargained plan does not 
necessarily mean that it may be permissively aggregated with Plan C. In 
order to be permissively aggregated with Plan C, Plan D must provide 
contributions or benefits with respect to service with Employer W that 
are at least comparable to the contributions or benefits provided under 
Plan C.


[[Page 718]]


    T-8 Q. May an employer permissively aggregate multiemployer plans, 
multiple employer plans and simplified employee pension plans to which 
the employer contributes with a plan covering key employees or a 
required aggregated group?
    A. Yes. Multiemployer plans, multiple employer plans and simplified 
employee pensions to which an employer makes contributions may be 
permissively aggregated with a plan covering key employees or with a 
required aggregation group if the contributions or benefits provided 
under the multiemployer plan, multiple employer plan or simplified 
employee pension by the employer are comparable to the contributions or 
benefits provided under the plan covering key employees or the plans in 
the required aggregation group. In making this determination, only the 
employer's contribution to the simplified employee pension may be used.
    T-9 Q. What plans will be treated as top-heavy if they are part of a 
required aggregation group that is top-heavy?
    A. In the case of plans that are required to be aggregated, each 
plan in the required aggregation group will be top-heavy if the group is 
top-heavy. No plan in the required aggregation group will be top-heavy 
if the group is not top-heavy.
    T-10 Q. If a required aggregation group is top-heavy, and one plan 
of the group satisfies the requirements of sections 416 (b), (c), and 
(d), may other plans in the group include provisions which do not 
satisfy sections 416 (b), (c) and (d)?
    A. No. Each plan in a required aggregation group is top-heavy if the 
group is top-heavy. Thus, each plan must contain provisions satisfying 
the requirements of sections 416 (b) and (d). If all the plans are 
defined contribution plans, only one plan need satisfy the requirements 
of section 416(c)(2) with respect to any non-key employee who 
participates in more than one of the plans. If all the plans are defined 
benefit plans, only one plan need satisfy the requirements of section 
416(c)(1) with respect to any non-key employee who participates in more 
than one of the plans. However, in the case of non-key employees who do 
not participate in more than one plan, each plan must separately provide 
the applicable minimum contribution or benefit with respect to each such 
employee. See Question and Answer M-12 in the case of employees who are 
covered under both a defined benefit and a defined contribution plan.
    T-11 Q. What plans will be treated as top-heavy if a permissive 
aggregation group is top-heavy?
    A. If a permissive aggregation group is top-heavy, only those plans 
that are part of the required aggregation group will be subject to the 
requirements of section 416 (b), (c) and (d). Plans that are not part of 
the required aggregation group will not be subject to these 
requirements. Thus, if an employer wishes to demonstrate that the plans 
maintained by the employer are not top-heavy, the employer need consider 
only the required aggregation group. If, after considering the required 
aggregation group, it is determined that the plans are not top-heavy, 
the requirements of section 416 (b), (c) and (d) will not apply to any 
of the plans. If, on the other hand, the plans required to be aggregated 
are top-heavy, the employer may wish to determine whether there are any 
plans that may be permissively aggregated to demonstrate that the plans 
are not top-heavy. Assuming that there are plans that are eligible for 
permissive aggregation, the employer may take these plans into 
consideration. If, after taking such plans into consideration, the net 
result is that the entire group is not top-heavy, the top-heavy 
requirements do not apply to any plan in the group.
    T-12 Q. For purposes of determining whether a plan is top-heavy for 
a plan year, who is a key employee?
    A. Under section 416(i)(1), a key employee is any employee 
(including any deceased employee) who at any time during the plan year 
containing the determination date for the plan year in question or the 
four preceding plan years (including plan years before 1984) is:
    1. An officer of the employer having annual compensation from the 
employer for a plan year greater than 150 percent of the dollar 
limitation in effect under section 415(c)(1)(A) for the calendar year in 
which such plan year

[[Page 719]]

ends (see Questions and Answers T-13, T-14, and T-15),
    2. One of the ten employees having annual compensation from the 
employer for a plan year greater than the dollar limitation in effect 
under section 415(c)(1)(A) for the calendar year in which such plan year 
ends and owning (or considered as owning within the meaning of section 
318) both more than a \1/2\ percent interest and the largest interests 
in the employer (see Question and Answer T-19),
    3. A 5-percent owner of the employer, or
    4. A 1-percent owner of the employer having annual compensation from 
the employer for a plan year more than $150,000 (see Questions and 
Answers T-16 and T-21).
    An individual may be considered a key employee in a plan year for 
more than one reason. For example, an individual may be both an officer 
and one of the ten largest owners. However, in testing whether a plan or 
group is top-heavy, an individual's accrued benefit is counted only 
once. The terms key employee, former key employee, and non-key employee 
include the beneficiaries of such individuals. This Question and Answer 
is illustrated by the following examples:

    Example (1). An employer maintains a calendar-year plan. An 
individual who was an employee of the employer and a 5-percent owner of 
the employer in 1986 was neither an employee nor an owner in 1987 or 
thereafter. Even though the individual is no longer an employee or owner 
of the employer, the individual would be treated as a key employee for 
purposes of determining whether the plan is top-heavy for each plan year 
through the 1991 plan year. However, for purposes of determining whether 
the plan is top-heavy for the 1992 plan year and for subsequent plan 
years, the individual would be treated as a former key employee.
    Example (2). The facts are the same as in example (1), except that 
the individual died in early 1987 and his total benefit under the plan 
was distributed to his beneficiary in 1987. Such distribution would be 
treated as the accrued benefit of the individual for each year through 
the 1991 plan year. However, such individual would be treated as a 
former key employee for purposes of determining whether the plan is top-
heavy for the 1992 plan year and for subsequent plan years. The 
conclusions are not affected by whether the beneficiary of the 
individual is a non-key employee or a key employee of the employer.

    T-13 Q. For purposes of defining a key employee, who is an officer?
    A. Whether an individual is an officer shall be determined upon the 
basis of all the facts, including, for example, the source of his 
authority, the term for which elected or appointed, and the nature and 
extent of his duties. Generally, the term officer means an 
administrative executive who is in regular and continued service. The 
term officer implies continuity of service and excludes those employed 
for a special and single transaction. An employee who merely has the 
title of an officer but not the authority of an officer is not 
considered an officer for purposes of the key employee test. Similarly, 
an employee who does not have the title of an officer but has the 
authority of an officer is an officer for purposes of the key employee 
test. In the case of one or more employers treated as a single employer 
under sections 414(b), (c), or (m), whether or not an individual is an 
officer shall be determined based upon his responsibilities with respect 
to the employer or employers for which he is directly employed, and not 
with respect to the controlled group of corporations, employers under 
common control or affiliated service group. A partner of a partnership 
will not be treated as an officer for purposes of the key employee test 
merely because he owns a capital or profits interest in the partnership, 
exercises his voting rights as a partner, and may, for limited purposes, 
be authorized and does in fact act as an agent of the partnership.
    T-14 Q. For purposes of determining whether a plan is top-heavy for 
a plan year, how many officers must be taken into account?
    A. There is no minimum number of officers that must be taken into 
account. Only individuals who are in fact officers within the meaning of 
Question and Answer T-13 must be considered. For example, a corporation 
with only one officer and two employees would have only one officer for 
purposes of section 416(i)(1)(A)(i). After aggregating all employees 
(including leased employees within the meaning of section 414(n)) of 
employers required to be aggregated under section 414(b), (c) or (m), 
there is a maximum limit to the number of officers that are to be taken

[[Page 720]]

into account as officers for the entire group of employers that are so 
aggregated. The number of employees an employer (including all employers 
required to be aggregated under section 414(b), (c), or (m)) has for the 
plan year containing the determination date is the greatest number of 
employees it had during that plan year or any of the four preceding plan 
years. For purposes of this Question and Answer, employees include only 
those individuals who perform services for the employer during a plan 
year. If the number of employees (including part-time employees) of all 
the employers aggregated under section 414(b), (c) or (m) is less than 
30 employees, no more than three individuals shall be treated as key 
employees for the plan year containing the determination date by reason 
of being officers. If the number of employees of all organizations 
aggregated under section 414(b), (c) or (m) is greater than 30 but less 
than 500, no more than 10% of the number of employees will be treated as 
key employees by reason of being officers. (If 10% of the number of 
employees is not an integer, the maximum number of individuals to be 
treated as key employees by reason of being officers shall be increased 
to the next integer). If the number of employees of employers aggregated 
under section 414 (b), (c) and (m) exceeds 500, no more than 50 
employees are to be considered as key employees by reason of being 
officers. This limited number of officers is comprised of the individual 
officers, selected from the group of all individuals who were officers 
in the plan year containing the determination date or any one of the 
four preceding plan years, who had annual plan year compensation (in the 
officer year) in excess of 150 percent of the dollar limitation in 
effect under section 415(c)(1)(A) for the calendar year in which the 
plan year ends and who had the largest annual plan-year compensation in 
that five-year period. (The definition of compensation contained in 
Question and Answer T-21 is to be used for this purpose.) In determining 
the officers of an employer, an employee who is an officer shall be 
counted as an officer for key employee purposes without regard to 
whether the employee is a key employee for any other reason. However, in 
testing whether the plan(s) is top-heavy, an individual's present value 
of accrued benefits is counted only once.

    Example. A company is testing to see if its plan is top-heavy for 
the 1985 plan year. In each year from 1980 through 1984 it has more than 
500 employees. Assume that (1) because of rapid turnover among officers, 
the individuals who are officers each year are different from the 
individuals who are officers in any preceding year, and (2) the annual 
plan year compensation of each officer exceeds 150 percent of the dollar 
limitation in effect under section 415(c)(1)(A) for the calendar year in 
which the plan year ends. Under the limitations, only a total of 50 
individuals would be considered to be key employees by virtue of being 
officers in testing for top-heaviness for the 1985 plan year. Further, 
the 50 individuals considered as key employees under this test would be 
determined by selecting the 50 out of 250 individuals (50 different 
officers each year) who had the highest annual plan-year compensation 
during the 1980-1984 period (while officers).

    T-15 Q. For purposes of section 416, do organizations other than 
corporations have officers?
    A. Yes. For purposes of the top-heavy rules, sole proprietorships, 
partnerships, associations, trusts, and labor organizations may have 
officers. This rule is effective for purposes of determining whether a 
plan is top-heavy for plan years which begin after February 28, 1985.
    T-16 Q. Who is a 1-percent owner of the employer?
    A. (a) If the employer is a corporation, a 1-percent owner is any 
employee who owns (or is considered as owning within the meaning of 
section 318) more than 1 percent of the value of the outstanding stock 
of the corporation or stock possessing more than 1 percent of the total 
combined voting power of all stock of the corporation. If the employer 
is not a corporation, a 1-percent owner is any employee who owns more 
than 1 percent of the capital or profits interest in the employer. The 
rules of subsections (b), (c), and (m) of section 414 do not apply for 
purposes of determining who is a 1-percent owner.
    (b) For purposes of determining who is a 1-percent owner, 5-percent 
owner, or top-ten owner, value means fair market value taking into 
account all facts and circumstances.

[[Page 721]]

    T-17 Q. Who is a 5-percent owner of the employer?
    A. If the employer is a corporation, a 5-percent owner is any 
employee who owns (or is considered as owning within the meaning of 
section 318) more than 5 percent of the value of the outstanding stock 
of the corporation or stock possessing more than 5 percent of the total 
combined voting power of all stock of the corporation. If the employer 
is not a corporation, a 5-percent owner is any employee who owns more 
than 5 percent of the capital or profits interest in the employer. The 
rules of subsections (b), (c), and (m) of section 414 do not apply for 
purposes of determining who is a 5-percent owner.
    T-18 Q. How do the rules of section 318 apply for purposes of 
determining ownership in an entity other than a corporation?
    A. For purposes of determining ownership is an entity other than a 
corporation, the rules of section 318 apply in a manner similar to the 
way in which they apply for purposes of determining ownership in a 
corporation. For non-corporate interests, capital or profits interest 
must be substituted for stock.
    T-19 Q. Which employees will be considered one of the top ten 
owners?
    A. (a) For purposes of determining whether a plan is top-heavy for a 
plan year, the top ten owners are the ten employees who (1) own (or are 
considered as owning within the meaning of section 318) during the plan 
year containing the determination date or any of the four preceding plan 
years both more than a \1/2\ percent ownership interest in value and the 
largest percentage ownership interests in value of any of the employers 
required to be aggregated under section 414(b), (c), or (m), and (2) 
have during the plan year of ownership annual plan year compensation 
from the employer more than the limitation in effect under section 
415(c)(1)(A) for the calendar year in which such plan year ends. The 
five years for which the test is made will be referred to as the 
``testing period.'' An employee whose annual plan year compensation 
exceeds the section 415(c)(1)(A) limit in effect for the calendar year 
in which a plan year in the testing period ends who has an ownership 
interest greater than \1/2\ percent in that plan year is considered to 
be one of the top ten owners unless at least ten other employees own a 
greater interest in the employer during any year of the testing period 
and have annual plan year compensation during such plan year of 
ownership greater than the section 415(c)(1)(A) limit in effect for the 
calendar year in which such plan year ends. Ownership each plan year is 
determined on the basis of percentage of ownership interest in total 
ownership value and not dollar amounts. Thus, an employee whose stock 
interest is valued at 15 percent of the total stock value of a 
corporation in year one that was worth $15,000 is ranked higher than an 
employee whose stock interest is valued at 5 percent of the total stock 
value of the same corporation in year three which is now worth $50,000.
    (b) If an employee's ownership interest changes during a plan year, 
his ownership interest for the year is the largest interest owned at any 
time during the year. If two employees have the same ownership interest 
in the employer during the testing period, the employee having the 
largest annual compensation from the employer for the plan year during 
any part of which that ownership interest existed shall be treated as 
having a larger interest. Thus, if 25 employees each own 4 percent in 
value of the employer during the testing period, the 10 employees with 
the largest single plan year compensation during this period will be 
considered the top ten owners. For purposes of this Question and Answer, 
compensation has the meaning set forth in Question and Answer T-21. This 
Question and Answer is illustrated by the following examples:

    Example 1. Corporation K maintains a calendar year defined 
contribution plan. On January 1, 1986, Corporation K has five owners who 
owned the following value percentages of K stock: A=50%, B=20%, C=15%, 
D=10%, and E=5%. On June 30, 1987, the five owners of Corporation K sold 
all of their shares of stock. The new owners and their respective 
ownership percentages were: F=40%, G=30%, H=10%, I=10%, and J=10%. 
Assume that, for 1986, A, B, C, D, and E had annual compensation from 
Corporation K greater than the section 415(c)(1)(A) limit and that,

[[Page 722]]

for 1987, F, G, H, I, and J also had compensation from Corporation K 
greater than the section 415(c)(1)(A) limit. For purposes of determining 
whether the plan is top-heavy for the 1991 plan year, the top ten owners 
will include A, B, C, D, E, F, G, H, I, and J because no 10 individuals 
during the testing period, 1986-1990, had a greater ownership interest 
than these individuals.
    Example 2. Assume the same facts in Example 1, except that on June 
1, 1988, F, G, H, I, and J sold their interests to new owners, K, L, M, 
N, and O. K, L, M, N, and O owned, respectively, 30%, 30%, 30%, 5% and 
5% of the value of the shares of X. Assume also that for 1988 K, L, M, 
N, and O earned more than the section 415(c)(1)(A) limitation. For 
purposes of determining whether the plan is top-heavy for the 1991 plan 
year, the top ten owners will include: A, B, F, K, G, L, M, and C 
because these eight individuals owned the highest value percentages of 
the Corporation K stock. Since D, H, I, and J owned equal 10% interests 
in value, the two employees of this group who had the largest annual 
plan year compensation during the plan years of their ownership will be 
the last 2 top ten owners.

    T-20 Q. For purposes of determining whether an employee is a key 
employee under section 416(i)(1)(A), what aggregation rules apply?
    A. In the case of ownership percentages, each employer that would 
otherwise be aggregated under section 414 (b), (c) and (m) is treated as 
a separate employer. (See section 416(i)(1)(C).) However, for purposes 
of determining whether an individual has compensation of $150,000, or 
whether an individual is a key employee by reason of being an officer or 
a top ten owner, compensation from each entity required to be aggregated 
under sections 414 (b), (c) and (m) is taken into account. These rules 
may be illustrated by the following example:

    Example. An individual owns two percent of the value of a 
professional corporation, which in turn owns a \1/10\th of 1 percent 
interest in a partnership. The entities must be aggregated in accordance 
with section 414(m). The individual performs services for the 
professional corporation and for the partnership. The individual 
receives compensation of $125,000 from the professional corporation and 
$26,000 from the partnership. The individual is considered to be a key 
employee with respect to the employer that comprises both the 
professional corporation and the partnership because he has a two 
percent interest in the professional corporation and because his 
combined compensation from both the professional corporation and the 
partnership is more than $150,000.

    T-21 Q. For purposes of testing whether an individual has 
compensation of more than $150,000, what definition of compensation must 
be used?
    A. The definition of compensation to be used is the definition in 
Sec. 1.415-2(d). In the case of an individual, including a self-employed 
individual, Sec. 1.415-2(d)(2)(i) excludes from compensation amounts 
contributed to a plan of deferred compensation. Alternatively, 
compensation that would be stated on an employee's Form W-2 for the 
calendar year that ends with or within the plan year may be used. A plan 
must use the same definition of compensation for all top-heavy purposes 
for which the definition in this Question and Answer must be used.
    T-22 Q. In the case of an employer who maintains a single plan, when 
must the determination whether the plan is top-heavy be made?
    A. Whether a plan is top-heavy for a particular plan year is 
determined as of the determination date for such plan year. The 
determination date with respect to a plan year is defined in section 
416(g)(4)(C) as (1) the last day of the preceding plan year, or (2) in 
the case of the first plan year, the last day of such plan year. 
Distributions made and the present value of accrued benefits are 
generally determined as of the determination date. (See Questions and 
Answers T-24 and T-25 for more specific rules.)
    T-23 Q. In the case of an aggregation group, when must the 
determination whether the group is top-heavy be made?
    A. When two or more plans constitute an aggregation group in 
accordance with section 416(g)(2), the following procedures are used to 
determine whether the plans are top-heavy for a particular plan year. 
First, the present value of the accrued benefits (including 
distributions for key employees and all employees) is determined 
separately for each plan as of each plan's determination date. The plans 
are then aggregated by adding together the results for each plan as of 
the determination dates for such plans that fall within the same 
calendar year. The combined results will indicate whether or not the

[[Page 723]]

plans so aggregated are top-heavy. These rules may be illustrated by the 
following example:

    Example. An employer maintains Plan A and Plan B, each containing a 
key employee. Plan A's plan year commences July 1 and ends June 30. Plan 
B's plan year is the calendar year. For Plan A's plan year commencing 
July 1, 1984, the determination date is June 30, 1984. For Plan B's plan 
year in 1985, the determination date is December 31, 1984. These plans 
are required to be aggregated. For each of these plans as of their 
respective determination dates, the present value of the accrued 
benefits for key employees and all employees are separately determined. 
The two determination dates, June 30, 1984, and December 31, 1984, fall 
within the same calendar year. Accordingly, the present values of 
accrued benefits as of each of these determination dates are combined 
for purposes of determining whether the group is top-heavy. If, after 
combining the two present values, the total results show that the group 
is top-heavy, Plan A will be top-heavy for the plan year commencing July 
1, 1984, and Plan B will be top-heavy for the 1985 calendar year.

    T-24 Q. How is the present value of an accrued benefit determined in 
a defined contribution plan?
    A. The present value of accrued benefits as of the determination 
date for any individual is the sum of (a) the account balance as of the 
most recent valuation date occurring within a 12-month period ending on 
the determination date, and (b) an adjustment for contributions due as 
of the determination date. In the case of a plan not subject to the 
minimum funding requirements of section 412, the adjustment in (b) is 
generally the amount of any contributions actually made after the 
valuation date but on or before the determination date. However, in the 
first plan year of the plan, the adjustment in (b) should also reflect 
the amount of any contributions made after the determination date that 
are allocated as of a date in that first plan year. In the case of a 
plan that is subject to the minimum funding requirements, the account 
balance in (a) should include contributions that would be allocated as 
of a date not later than the determination date, even though those 
amounts are not yet required to be contributed. Thus, the account 
balance will include contributions waived in prior years as reflected in 
the adjusted account balance and contributions not paid that resulted in 
a funding deficiency. The adjusted account balance is described in Rev. 
Rul. 78-223, 1978-1 C.B. 125. Also, the adjustment in (b) should reflect 
the amount of any contribution actually made (or due to be made) after 
the valuation date but before the expiration of the extended payment 
period in section 412(c)(10).
    T-25. Q. How is the present value of an accrued benefit determined 
in a defined benefit plan?
    A. The present value of an accrued benefit as of a determination 
date must be determined as of the most recent valuation date which is 
within a 12-month period ending on the determination date. In the first 
plan year of a plan, the accrued benefit for a current employee must be 
determined either (i) as if the individual terminated service as of the 
determination date or (ii) as if the individual terminated service as of 
the valuation date, but taking into account the estimated accrued 
benefit as of the determination date. For the second plan year of a 
plan, the accrued benefit taken into account for a current participant 
must not be less than the accrued benefit taken into account for the 
first plan year unless the difference is attributable to using an 
estimate of the accrued benefit as of the determination date for the 
first plan year and using the actual accrued benefit as of the 
determination date for the second plan year. For any other plan year, 
the accrued benefit for a current employee must be determined as if the 
individual terminated service as of such valuation date. For this 
purpose, the valuation date must be the same valuation date for 
computing plan costs for minimum funding, regardless of whether a 
valuation is performed that year.
    T-26. Q. What actuarial assumptions are used for determining the 
present value of accrued benefits for defined benefit plans?
    A. (a) There are no specific prescribed actuarial assumptions that 
must be used for determining the present value of accrued benefits. The 
assumptions used must be reasonable and need not relate to the actual 
plan and investment experience. The assumptions need not be the same as 
those used for

[[Page 724]]

minimum funding purposes or for purposes of determining the actuarial 
equivalence of optional benefits under the plan. The accrued benefit for 
each current employee is computed as if the employee voluntarily 
terminated service as of the valuation date. The present value must be 
computed using an interest and a post-retirement mortality assumption. 
Pre-retirement mortality and future increases in cost of living (but not 
in the maximum dollar amount permitted by section 415) may also be 
assumed. However, assumptions as to future withdrawals or future salary 
increases may not be used. In the case of a plan providing a qualified 
joint and survivor annuity within the meaning of section 401(a)(11) as a 
normal form of benefit, for purposes of determining the present value of 
the accrued benefit, the spouse of the participant may be assumed to be 
the same age as the participant.
    (b) Except in the case where the plan provides for a nonproportional 
subsidy, the present value should reflect a benefit payable commencing 
at normal retirement age (or attained age, if later). Thus, benefits not 
relating to retirement benefits, such as pre-retirement death and 
disability benefits and post-retirement medical benefits, must not be 
taken into account. Further, subsidized early retirement benefits and 
subsidized benefit options must not be taken into account unless they 
are nonproportional subsidies. See Question and Answer
T-27.
    (c) Where the plan provides for a nonproportional subsidy, the 
benefit should be assumed to commence at the age at which the benefit is 
most valuable. In the case of two or more defined benefit plans which 
are being tested for determining whether an aggregation group is top-
heavy, the actuarial assumptions used for all plans within the group 
must be the same. Any assumptions which reflect a reasonable mortality 
experience and an interest rate not less than five percent or greater 
than six percent will be considered as reasonable. Plans, however, are 
not required to use an interest rate in this range.
    T-27 Q. In determining the present value of accrued benefits in a 
defined benefit plan, what standards are applied toward determining 
whether a subsidy is nonproportional?
    A. A subsidy is nonproportional unless the subsidy applies to a 
group of employees that would independently satisfy the requirements of 
section 410(b). If two or more plans are considered as a unit for 
comparability purposes under Sec. 1.410(b)-1(d)(3), subsidies may be 
necessary in both plans or else the subsidy may be nonproportional. 
Thus, for example, in the case of a plan which provides an early 
retirement benefit after age 55 and 20 years of service equal to the 
normal retirement benefit without actuarial reduction and if the 
employees who may conceivably reach age 55 with 20 years of service 
would, as a group, satisfy the requirements of section 410(b), that 
subidy is proportional. However, in contrast, consider a plan that 
provides an early retirement benefit that is the actuarial equivalent of 
the normal retirement benefit. In determining the early retirement 
benefit, the plan imposes the section 415 limits only on the early 
retirement benefit (not on the normal retirement benefit before applying 
the early retirement reduction factors). In such a plan, a participant 
with a normal retirement benefit (before limitation by section 415) in 
excess of the section 415 limits will receive a subsidized early 
retirement benefit, whereas a participant with a lower normal retirement 
benefit will not. Thus, such a benefit would be a nonproportional 
subsidy if the group of individuals who are limited by the limitations 
under section 415 do not, by themselves, constitute a cross section of 
employees that could satisfy section 410(b).
    T-28 Q. For purposes of determining the present value of accrued 
benefits in either a defined benefit or defined contribution plan, are 
the accrued benefits attributable to employee contributions considered 
to be part of the accrued benefits?
    A. The accrued benefits attributable to employee contributions are 
considered to be part of the accrued benefits without regard to whether 
such contributions are mandatory or voluntary. However, the amounts 
attributable to deductible employee contributions (as

[[Page 725]]

defined in section 72(o)(5)(A)) are not considered to be part of the 
accrued benefits.
    T-29 Q. How are plans described in section 401(k) treated for 
purposes of the top-heavy rules?
    A. No special top-heavy rules are provided for plans described in 
section 401(k), except a transitional rule. For plan years beginning 
after December 31, 1984, amounts which an employee elects to defer are 
treated as employer contributions for purposes of determining minimum 
required contributions under section 416(c)(2). However, for plan years 
beginning prior to January 1, 1985, amounts which an employee elects to 
have contributed to a plan described in section 401(k) are not treated 
as employer contributions for these purposes. A plan described in 
section 401(k) which is top-heavy must provide minimum contributions by 
the employer and limit the amount of compensation which can be taken 
into account in providing benefits under the plan.
    T-30 Q. What distributions are added to the present value of accrued 
benefits in determining whether a plan is top-heavy for a particular 
plan year?
    A. Under section 416(g)(3)(A), distributions made within the plan 
year that includes the determination date and within the four preceding 
plan years are added to the present value of accrued benefits of key 
employees and non-key employees in testing for top-heaviness. However, 
in the case of distributions made after the valuation date and prior to 
the determination date, such distributions are not included as 
distributions in section 416(g)(3)(A) to the extent that such 
distributions are included in the present value of the accrued benefits 
as of the valuation date. In the case of the distribution of an annuity 
contract, the amount of such distribution is deemed to be the current 
actuarial value of the contract, determined on the date of the 
distribution. Certain distributions that are rolled over by the employee 
are not included as distributions. See Question and Answer T-32. A 
distribution will not fail to be considered in determining the present 
value of accrued benefits merely because it was made before the 
effective date of section 416. For purposes of this question and answer, 
distributions mean all distributions made by a plan, including all 
distributions of employee contributions made during and before the plan 
year.
    T-31 Q. Are benefits paid on account of death treated as 
distributions for purposes of section 416(g)(3)?
    A. Benefits paid on account of death are treated as distributions 
for purposes of section 416(g)(3) to the extent such benefits do not 
exceed the present value of accrued benefits existing immediately prior 
to death; benefits paid on account of death are not treated as 
distributions for purposes of section 416(g)(3) to the extent such 
benefits exceed the present value of accrued benefits existing 
immediately prior to death. The distribution from a defined contribution 
plan (including the cash value of life insurance policies) of a 
participant's account balance on account of death will be treated as a 
distribution for purposes of section 416(g)(3).
    T-32 Q. How are rollovers and plan-to-plan transfers treated in 
testing whether a plan is top-heavy?
    A. The rules for handling rollovers and transfers depend upon 
whether they are unrelated (both initiated by the employee and made from 
a plan maintained by one employer to a plan maintained by another 
employer) or related (a rollover or transfer either not initiated by the 
employee or made to a plan maintained by the same employer). Generally, 
a rollover or transfer made incident to a merger or consolidation of two 
or more plans or the division of a single plan into two or more plans 
will not be treated as being initiated by the employee. The fact that 
the employer initiated the distribution does not mean that the rollover 
was not initiated by the employee. For purposes of determining whether 
two employers are to be treated as the same employer, all employers 
aggregated under section 414(b), (c) or (m) are treated as the same 
employer. In the case of unrelated rollovers and transfers, (1) the plan 
making the distribution or transfer is to count the distribution as a 
distribution under section 416(g)(3), and (2) the plan accepting the 
rollover or transfer is not to consider the rollover or transfer as

[[Page 726]]

part of the accrued benefit if such rollover or transfer was accepted 
after December 31, 1983, but is to consider it as part of the accrued 
benefit if such rollover or transfer was accepted prior to January 1, 
1984. In the case of related rollovers and transfers, the plan making 
the distribution or transfer is not to count the distribution or 
transfer under section 416(g)(3) and the plan accepting the rollover or 
transfer counts the rollover or transfer in the present value of the 
accrued benefits. Rules for related rollovers and transfers do not 
depend on whether the rollover or transfer was accepted prior to January 
1, 1984.
    T-33 Q. How are the aggregate defined benefit and defined 
contribution limits under section 415(e) affected by the top-heavy 
rules?
    A. Section 416(h) modifies the aggregate limits in section 415(e) 
for super top-heavy plans and for top-heavy plans that are not super 
top-heavy but do not provide for an additional minimum contribution or 
benefit. A plan is a super top-heavy plan if the present value of 
accrued benefits for key employees exceeds 90% of the present value of 
the accrued benefits for all employees. In the case of a top-heavy 
aggregation group, the test is applied to all plans in the group as a 
whole. These present values are computed using the same rules as are 
used for determining whether the plan is top-heavy. In the case of a 
super top-heavy plan, in computing the denominators of the defined 
benefit and defined contribution fractions under section 415(e), a 
factor of 1.0 is used instead of 1.25 for all employees. In the case of 
a top-heavy plan that is not super top-heavy, the same rule applies 
unless each non-key employee who is entitled to a minimum contribution 
or benefit receives an additional minimum contribution or benefit. In 
the case of a defined benefit plan, the additional minimum benefit is 
one percentage point (up to a maximum of ten percentage points) for each 
year of service described in Question and Answer M-2 of the 
participant's average compensation for the years described in Question 
and Answer M-2. In the case of a defined contribution plan, the 
additional minimum contribution is one percent of the participant's 
compensation. If a plan does not provide the applicable additional one 
percent minimum or if a plan is super top-heavy, the factor of 1.25 may 
be used for an individual only if there are both no further accruals for 
that individual under any defined benefit plan and no further annual 
additions for that individual under any defined contribution plan until 
the combined fraction satisfies the rules of section
415(e) using the 1.0 factor for that individual. The rules contained in 
this Question and Answer apply for each limitation year that contains 
any portion of a plan year for which the plan is top-heavy. This 
Question and Answer may be illustrated by the following example:

    Example. A Corporation maintains a profit-sharing plan and a defined 
benefit plan, and these plans constitute a required aggregation group. 
Both plans use the calendar year for the plan year and the limitation 
year under section 415. The plans were determined to be top-heavy for 
plan year 1986. The plans use the 1.25 factor under section 415(e), and 
non-key employees covered by both the profit-sharing and the defined 
benefit plan accrue, under the defined benefit plan, 3% of compensation 
for each year of service (up to a maximum of 30%). The plans become 
super top-heavy for the 1990 plan year. In order to satisfy section 415, 
no further accruals and no further annual additions may take place for 
any employee covered by both plans until the combined defined benefit-
defined contribution fraction for such employee is less than 1.0, using 
the 1.0 factor in place of 1.25.

    T-34 Q. May plans be permissively aggregated to avoid being super 
top-heavy?
    A. Yes, plans may be permissively aggregated to avoid being super 
top-heavy.
    T-35 Q. What provisions must be contained in a plan to comply with 
the top-heavy requirements?
    A. Section 401(a)(10)(B) provides that a plan will qualify only if 
it contains provisions which will take effect if the plan becomes top-
heavy and which meet the requirements of section 416. See Questions and 
Answers T-39 and T-40 for rules on what provisions must be included. 
Under section 401(a)(10)(B)(ii), regulations may waive this requirement 
for some plans. See Question and Answer T-38 for a description of plans 
that need not include such provisions.

[[Page 727]]

    T-36 Q. For an employer who has no employee who has participated or 
is eligible to participate in both a defined benefit and defined 
contribution plan (or a simplified employee pension, ``SEP'') of that 
employer, what provisions must be in the plan(s) to comply with the top-
heavy requirements?
    A. (a) If the defined benefit plan has no participants who are or 
could be participants in a defined contribution plan of the employer (or 
vice versa), the defined benefit plan (or defined contribution plan) 
need not include provisions describing the defined benefit or defined 
contribution fractions for purposes of section 415 and, thus, the plan 
need not contain provisions to determine whether the plan is super top-
heavy or to change any plan provisions if the plan becomes super top-
heavy. Furthermore, if the plan contains a single benefit structure that 
satisfies the requirements of section 416 (b), (c), and (d) for each 
plan year without regard to whether the plan is top-heavy for such year, 
the plan need not include separate provisions to determine whether the 
plan is top-heavy or that apply if the plan is top-heavy. If the plan's 
single benefit structure does not assure that section 416 (b), (c), and 
(d) will be satisfied in all cases, then the plan must include three 
types of provisions.
    (b) First, the plan must contain provisions describing how to 
determine whether the plan is top-heavy. These provisions must include 
(1) the criteria for determining which employees are key employees (or 
non-key employees), (2) in the case of a defined benefit plan, the 
actuarial assumptions and benefits considered to determine the present 
value of accrued benefits, (3) a description of how the top-heavy ratio 
is computed, (4) a description of what plans (or types of plans) will be 
aggregated in testing whether the plan is top-heavy, and (5) a 
definition of the determination date and the valuation date applicable 
to the determination date. These determinations must be based on 
standards that are uniformly and consistently applied and that satisfy 
the rules set forth in section 416 and these Questions and Answers. The 
provisions in (1) and (3) above may be incorporated in the plan by 
reference to the applicable sections of the Internal Revenue Code 
without adversely affecting the qualification of the plan. However, the 
plan must state the definition of compensation for purposes of 
determining who is a key employee.
    (c) Second, the plan must specifically contain the following 
provisions that will become effective if the plan becomes top-heavy: 
vesting that satisfies the minimum vesting requirements of section 
416(b), benefits that will not be less than the minimum benefits set 
forth in section 416(c), and the compensation limitation described in 
section 416(d). The compensation limitation described in section 416(d) 
may be incorporated by reference. If a plan always meets the 
requirements of either section 416(b), (c) or (d), the plan need not 
include additional provisions to meet any such requirements.
    (d) Third, the plan must include provisions insuring that any change 
in the plan's benefit structure (including vesting schedules) resulting 
from a change in the plan's top-heavy status will not violate section 
411(a)(10). Thus, if a plan ceases being top-heavy, certain restrictions 
apply with respect to the change in the applicable vesting schedule.
    T-37 Q. For an employer who maintains or has maintained both a 
defined benefit and a defined contribution plan (or a simplified 
employee pension, ``SEP'') and some participants do or could participate 
in both types of plan, what provisions must be in the plans to comply 
with the top-heavy requirements?
    A. If an employer maintains (or has maintained) both a defined 
benefit plan and a defined contribution plan (or SEP), and the plans 
have or could have participants who participate in both types of plans, 
then the plans must contain more provisions than those described in 
Question and Answer T-36. First, the plans may exclude rules to 
determine whether the plan is top-heavy (or to apply when the plan is 
top-heavy) only if both plans contain a single benefit structure that 
satisfies sections 416 (b), (c), and (d) without regard to whether the 
plans are top-heavy. Second, unless the plans always satisfy the 
requirements of section 415(e) using the 1.0 factor in the defined

[[Page 728]]

benefit and defined contribution fractions as described in section 
416(h)(i), the plans must include provisions similar to those in 
Question and Answer T-36 (for top-heavy) to determine whether the plan 
is super top-heavy and to satisfy section 416(h) if it is.
    T-38 Q. Are any plans exempted from including top-heavy provisions?
    A. Section 401(a)(10)(B) exempts governmental plans (as defined in 
section 414(d)) from the top-heavy requirements and provides that 
regulations may exempt certain plans from including the top-heavy 
provisions. A plan need not include any top-heavy provisions if the 
plan: (1) is not top-heavy, and (2) covers only employees who are 
included in a unit of employees covered by a collective-bargaining 
agreement (if retirement benefits were the subject of good faith 
bargaining) or employees of employee representatives. The requirement 
set forth in section 7701(a)(46) must be met before an agreement will be 
considered a collective-bargaining agreement after March 31, 1984.
    T-39 Q. Must ratios be computed each year to determine whether a 
plan is top-heavy?
    A. No. In order to administer the plan, the plan administrator must 
know whether the plan is top-heavy. However, precise top-heavy ratios 
need not be computed every year. If, on examination, the Internal 
Revenue Service requests a demonstration as to whether the plan is top-
heavy (or super top-heavy; see Question and Answer T-33) the employer 
must demonstrate to the Service's satisfaction that the plan is not 
operating in violation of section 401(a)(10)(B). For purposes of any 
demonstration, the employer may use computations that are not precisely 
in accordance with this section but which mathematically prove that the 
plan is not top-heavy. For example, if the employer determined the 
present value of accrued benefits for key employees in a simplified 
manner which overstated that value, determined the present value for 
non-key employees in a simplified manner which understated that value, 
and the ratio of the key employee present value divided by the sum of 
the present values was less than 60 percent, the plan would not be 
considered top-heavy. This would be a sufficient demonstration because 
the simplified fraction could be shown to be greater than the exact 
fraction and, thus, the exact fraction must also be less than 60 
percent.
    Several methods that may be used to simplify the determinations are 
indicated below.
    (1) If the top-heavy ratio, computed considering all the key 
employees and only some of the non-key employees, is less than 60 
percent, then it is not necessary to accumulate employee data on the 
remaining non-key employees. Inclusion of additional non-key employees 
would only further decrease the ratio.
    (2) If the number of key employees is known but the identity of the 
key employees is not known (i.e. if the only key employees are officers 
and the limit on officers is applicable), the numerator may be 
determined by using a hypothetical ``worst case'' basis. Thus, in the 
case of a defined benefit plan, if the numerator of the top-heavy ratio 
were determined assuming each key employee's present value of accrued 
benefits were equal to the maximum section 415 benefits at the age that 
would maximize such present value, that assumption would only overstate 
the present value of accrued benefits for key employees. Thus, if that 
ratio is less than 60 percent, the plan is not top-heavy and accurate 
data on the key employees need not be collected.
    (3) If the employer has available present value of accrued benefit 
computations for key and non-key employees in a defined benefit plan, 
and these values differ from those that would be produced under Question 
and Answer T-25 only by inclusion of a withdrawal assumption, the 
present value for the key employees (but not the non-key employees) may 
be adjusted to a ``worst case'' value by dividing by the lowest possible 
probability of not withdrawing from plan participation before normal 
retirement age. If the top-heavy ratio based on this inflated key 
employee value is less than 60 percent, the present value need not be 
recomputed without the withdrawal assumption. The methods set forth in 
this answer may also be used to determine whether a plan is super top-
heavy by

[[Page 729]]

inserting ``90%'' for ``60%'' in the appropriate places.
    T-40 Q. Will a plan fail to qualify if it provides that the $200,000 
maximum amount of annual compensation taken into account under section 
416(d) for any plan year that the plan is top-heavy may be automatically 
increased in accordance with regulations under section 416?
    A. No.
    T-41 Q. If a plan provides benefits based on compensation in excess 
of $200,000 and the plan becomes top-heavy, must any accrued benefits 
attributable to this excess compensation be eliminated?
    A. No. For any year that a plan is top-heavy, section 416(d) 
provides that compensation in excess of $200,000 must not be taken into 
account. However, a top-heavy plan may continue to provide for any 
benefits attributable to compensation in excess of $200,000 to the 
extent such benefits were accrued before the plan was top-heavy. 
Furthermore, section 411(d)(6) will be violated if any individual's pre-
top-heavy benefit is reduced by either (1) a plan amendment adding the 
$200,000 restriction, or (2) an automatic change in the plan benefits 
structure imposing the $200,000 restriction due to the plan's becoming 
top-heavy.
    T-42 Q. Under a top-heavy defined benefit plan, are the requirements 
of section 416(d) satisfied if the annual compensation of an employee 
taken into account to determine plan benefits is limited to the amount 
currently described in section 416(d) for years during which the plan is 
top-heavy but higher compensation is taken into account for years before 
the plan became top-heavy?
    A. No. For the top-heavy plan to meet the requrements of section 
416(d), compensation for all years, including years before the plan 
became top-heavy, that is taken into account to determine plan benefits 
must not exceed the amount currently described in section 416(d). 
However, if the accrued benefit as of the end of the last plan year 
before the plan became top-heavy (ignoring any plan amendments after 
that date) is greater than the accrued benefit determined by limiting 
compensation in accordance with section 416(d), that higher accrued 
benefit as of the end of the last plan year before the plan became top-
heavy must not be reduced. Providing such higher accrued benefit will 
not cause the plan to violate section 416(d).
    T-43 Q. What happens to an individual who has ceased employment 
before a plan becomes top-heavy?
    A. If an individual has ceased employment before a plan becomes top-
heavy, such individual would not be required to receive any additional 
benefit accruals, contributions, or vesting, unless the individual 
returned to employment with the employer. See Questions and Answers V-3, 
M-4, and M-10. In addition, if the individual is receiving benefits 
based on annual compensation greater than $200,000, such benefits cannot 
be decreased.

                  V. Vesting Rules for Top-Heavy Plans

    V-1 Q. What vesting must be provided under a top-heavy plan?
    A. Under section 416(b), the accrued benefits attributable to 
employer contributions must be nonforfeitable in accordance with one of 
two statutory standards. Either such accrued benefits must be 
nonforfeitable after 3 years of service or the nonforfeitable portion of 
accrued benefits must be at least 20 percent after 2 years of service, 
40 percent after 3 years of service, 60 percent after 4 years of 
service, 80 percent after 5 years of service, and 100 percent after 6 
years of service. The accrued benefits attributable to employer 
contributions has the same meaning as under section 411(c) of the Code. 
As under section 411(a), the accrued benefits attributable to employee 
contributions must be nonforfeitable at all times.
    V-2 Q. What service must be counted in determining vesting 
requirements?
    A. All service required to be counted under section 411(a) must be 
counted for these purposes. All service permitted to be disregarded 
under section 411(a)(4) may similarly be disregarded under the schedules 
of section 416(b).
    V-3 Q. What benefits must be subject to the minimum vesting schedule 
of section 416(b)?
    A. All accrued benefits within the meaning of section 411(a)(7) must 
be

[[Page 730]]

subject to the minimum vesting schedule. These accrued benefits include 
benefits accrued before the effective date of section 416 and benefits 
accrued before a plan becomes top-heavy. However, when a plan becomes 
top-heavy, the accrued benefits of any employee who does not have an 
hour of service after the plan becomes top-heavy are not required to be 
subject to the minimum vesting schedule. Accrued benefits which have 
been forfeited before a plan becomes top-heavy need not vest when a plan 
becomes top-heavy.
    V-4 Q. May a top-heavy plan provide a minimum eligibility 
requirement of the later of age 21 or the completion of 3 years of 
service and provide that all benefits are nonforfeitable when accrued?
    A. Yes. For plan years which begin after December 31, 1984, a top-
heavy plan may provide a minimum eligibility requirement of the later of 
age 21, or the completion of 3 years of service, and provide that all 
benefits are nonforfeitable when accrued. For plan years which begin 
before January 1, 1985, ``25'' may be substituted for ``21'' in the 
preceding sentence.
    V-5 Q. What does nonforfeitable mean?
    A. In general, nonforfeitable has the same meaning as in section 
411(a). However, the minimum benefits required under section 416 (to the 
extent required to be nonforfeitable under section 416(b)) may not be 
forfeited under section 411(a)(3) (B) or (D). Thus, if benefits are 
suspended (ceased) during a period of reemployment, the benefit payable 
upon the subsequent resumption of payments must be actuarially increased 
to reflect the nonpayment of benefits during such period of re-
employment.
    V-6 Q. Will a class-year plan automatically satisfy the minimum 
vesting requirements in section 416(b) if it provides that contributions 
with respect to any plan year become nonforfeitable no later than the 
end of the third plan year following the plan year for which the 
contribution was made?
    A. No. Although this vesting schedule is similar to the 3-year 
minimum vesting schedule permitted by section 416(b)(1)(A), it does not 
satisfy that minimum. The 3-year vesting schedule in section 
416(b)(1)(A) requires that, after completion of 3 years of service, the 
entire accrued benefit of a participant be nonforfeitable. Under the 
class-year vesting schedule described above, a portion of a 
participant's accrued benefit (that portion attributable to 
contributions for the prior 3 years) is forfeitable regardless of the 
participant's years of service.
    V-7 Q. When a top-heavy plan ceases to be a top-heavy, may the 
vesting schedule be altered to a vesting schedule permitted without 
regard to section 416?
    A. When a top-heavy plan ceases to be top-heavy, the vesting 
schedule may be changed to one that would otherwise be permitted. 
However, in changing the vesting schedule, the rules described in 
section 411(a)(10) apply. Thus, the nonforfeitable percentage of the 
accrued benefit before the plan ceased to be top-heavy must not be 
reduced; also, any employee with five or more years of service must be 
given the option of remaining under the prior (i.e., top-heavy) vesting 
schedule.

                M. Minimum Benefits under Top-heavy Plans

    M-1 Q. Which employees must receive minimum contributions or 
benefits in a top-heavy plan?
    A. Generally, every non-key employee who is a participant in a top-
heavy plan must receive minimum contributions or benefits under such 
plan. However, see Questions and Answers M-4 and M-10 for certain 
exceptions. Different minimums apply for defined benefit and defined 
contribution plans.
    M-2 Q. What is the defined benefit minimum?
    A. (a) The defined benefit minimum requires that the accrued benefit 
at any point in time must equal at least the product of (i) an 
employee's average annual compensation for the period of consecutive 
years (not exceeding five) when the employee had the highest aggregate 
compensation from the employer and (ii) the lesser of 2% per year of 
service with the employer or 20%.
    (b) For purposes of the defined benefit minimum, years of service 
with the employer are generally determined under the rules of section 
411(a) (4), (5)

[[Page 731]]

and (6). However, a plan may disregard any year of service if the plan 
was not top-heavy for any plan year ending during such year of service, 
or if the year of service was completed in a plan year beginning before 
January 1, 1984.
    (c) In determining the average annual compensation for a period of 
consecutive years during which the employee had the largest aggregate 
compensation, years for which the employee did not earn a year of 
service under the rules of section 411(a) (4), (5), and (6) are to be 
disregarded. Thus, if an employee has received compensation from the 
employer during years one two, and three, and for each of these years 
the employee earned a year of service, then the employee's average 
annual compensation is determined by dividing the employee's aggregate 
compensation for these three years by three. If the employee fails to 
earn a year of service in the next year, but does earn a year of service 
in the fifth year, the employee's average annual compensation is 
calculated by dividing the employee's aggregate compensation for years 
one, two, three, and five by four. The compensation required to be taken 
into account is the compensation described in Question and Answer T-21. 
In addition, compensation received for years ending in plan years 
beginning before January 1, 1984, and compensation received for years 
beginning after the close of the last plan year in which the plan is 
top-heavy may be disregarded.
    (d) The defined benefit minimum is expressed as a life annuity (with 
no ancillary benefits) commencing at normal retirement age. Thus, if 
post-retirement death benefits are also provided, the 2% minimum annuity 
benefit may be adjusted. (See Question and Answer M-3.) The 2% minimum 
annuity benefit may not be adjusted due to the provision of pre-
retirement ancillary benefits. Normal retirement age has the same 
meaning as under section 411(a)(8).
    (e) Any accruals of employer-derived benefits, whether or not 
attributable to years for which the plan is top-heavy, may be used to 
satisfy the defined benefit minimums. Thus, if a non-key employee had 
already accrued a benefit of 20 percent of final average pay at the time 
the plan became top-heavy, no additional minimum accruals are required 
(although the accrued benefit would increase as final average pay 
increased). Accrued benefits attributable to employee contributions must 
be ignored. Accrued benefits attributable to employer and employee 
contributions have the same meaning as under section 411(c).
    M-3 Q. What defined benefit minimum must be received if an employee 
receives a benefit in a form other than a single life annuity or a 
benefit other than at normal retirement age?
    A. If the form of benefit is other than a single life annuity, the 
employee must receive an amount that is the actuarial equivalent of the 
minimum single life annuity benefit. If the benefit commences at a date 
other than at normal retirement age, the employee must receive at least 
an amount that is the acturial equivalent of the minimum single life 
annuity benefit commencing at normal retirement age. Thus, the employee 
may receive a lower benefit if the benefit commences before the normal 
retirement age and the employee must receive a higher benefit if the 
benefit commences after the normal retirement age. No specific actuarial 
assumptions are mandated providing different actuarial equivalents. 
However, the assumptions must be reasonable.
    M-4 Q. Which employees must accrue a minimum benefit in a top-heavy 
defined benefit plan?
    A. Each non-key employee who is a participant in a top-heavy defined 
benefit plan and who has at least one thousand hours of service (or 
equivalent service as determined under Department of Labor regulations, 
29 CFR 2530.200b-3) for an accrual computation period must accrue a 
minimum benefit in a top-heavy defined benefit plan for that accrual 
computation period. If the accrual computation period does not coincide 
with the plan year, a minimum benefit must be provided, if required, for 
both accrual periods within the top-heavy plan year. For a top-heavy 
plan that does not base accruals on accrual computation periods, minimum 
benefits must be credited for all periods of service required to be 
credited for benefit accrual. (See Sec. 1.410(a)-

[[Page 732]]

7). A non-key employee may not fail to accrue a minimum benefit merely 
because the employee was not employed on a specified date. Similarly, a 
non-key employee may not fail to accrue a minimum benefit because either 
(1) an employee is excluded from participation (or accrues no benefit) 
merely because the employee's compensation is less than a stated amount, 
or (2) the employee is excluded from participation (or accrues no 
benefit) merely because of a failure to make mandatory employee 
contributions.
    M-5 Q. Would the defined benefit minimum be satisfied if the plan 
provides a normal retirement benefit equal to the greater of the plan's 
projected formula or the projected minimum benefit and if benefits 
accrue in accordance with the fractional rule described in section 
411(b)(1)(C)?
    A. No. The fact that this fractional rule would not satisfy the 
defined benefit minimum may be illustrated by the following example. 
Consider a non-key employee, age 25, entering a top-heavy plan in which 
the projected minimum for the employee is greater than the projected 
benefit under the normal formula. Under the fractional rule, the 
employee's accrued benefit ten years later at age 35 would be 5% (20% 
x (10/40)). Under section 416, the employee's minimum accrued benefit 
after ten years of service must be at least 20%. Thus, because the 5% 
benefit is less than the 20% benefit required under section 416, such 
benefit would not satisfy the required minimum.
    M-6 Q. What benefit must an employer provide in a top-heavy defined 
benefit employee pay-all plan?
    A. The defined benefit minimum in an employee pay-all top-heavy plan 
is the same as that for a plan which has employer contributions. That 
is, the employer must provide the benefits specified in Question and 
Answer M-2.
    M-7 Q. What is the defined contribution minimum?
    A. The sum of the contributions and forfeitures allocated to the 
account of any non-key employee who is a participant in a top-heavy 
defined contribution plan must equal at least 3% of such employee's 
compensation (see Question and Answer T-21 for the definition of 
compensation) for that plan year or for the calendar year ending within 
the plan year. However, a lower minimum is permissible where the largest 
contribution made or required to be made for key employees is less than 
3%. The preceding sentence does not apply to any plan required to be 
included in an aggregation group if such plan enables a defined benefit 
plan required to be included in such group to meet the requirements of 
section 401(a)(4) or 410. The contribution made or required to be made 
on behalf of any key employee is equal to the ratio of the sum of the 
contributions made or required to be made and forfeitures allocated for 
such key employee divided by the compensation (not in excess of 
$200,000) for such key employee. Thus, the defined contribution minimum 
that must be provided for any non-key employee for a top-heavy plan year 
is the largest percentage of compensation (not in excess of $200,000) 
provided on behalf of any key employee for that plan year (if the 
largest percentage of compensation provided on behalf of any key 
employee for that plan year is less than 3%).
    M-8 Q. If an employer maintains two top-heavy defined contribution 
plans, must both plans provide the defined contribution minimum for each 
non-key employee who is a participant in both plans?
    A. No. If one of the plans provides the defined contribution minimum 
for each non-key employee who participates in both plans, the other plan 
need not provide an additional contribution for such employees. However, 
the other plan must provide the vesting required by section 416(b) and 
must limit compensation (based on all compensation from all aggregated 
employers) in providing benefits as required by section 416(d).
    M-9 Q. In the case of the waiver of minimum funding standards of 
section 412(d), how does section 416 treat the defined contribution 
minimum?
    A. For purposes of determining the contribution that is required to 
be made on behalf of a key employee, a waiver of the minimum funding 
requirements is disregarded. Thus, if a defined contribution plan 
receives a

[[Page 733]]

waiver of the minimum funding requirement, and if the minimum 
contribution required under the plan without regard to the waiver 
exceeds 3%, the exception described in Question and Answer M-7 does not 
apply even though no key employee receives a contribution in excess of 
3% and even though the amount required to be contributed on behalf of 
the key employee has been waived. Also, a waiver of the minimum funding 
requirements will not alter the requirements of section 416. Thus, in 
the case of the top-heavy defined contribution plan in which the non-key 
employee must receive an allocation, a waiver of the minimum funding 
requirements may eliminate a funding violation and such waiver will 
preclude a violation under section 416 even though the required 
contribution is not made. However, the adjusted account balance (as 
described in Rev. Rul. 78-223, 1978-1 C.B. 125) of the non-key employees 
must reflect the required minimum contribution even though such 
contribution was not made.
    M-10 Q. Which employees must receive the defined contribution 
minimum?
    A. Those non-key employees who are participants in a top-heavy 
defined contribution plan who have not separated from service by the end 
of the plan year must receive the defined contribution minimum. Non-key 
employees who have become participants but who subsequently fail to 
complete 1,000 hours of service (or the equivalent) for an accrual 
computation period must receive the defined contribution minimum. A non-
key employee may not fail to receive a defined contribution minimum 
because either (1) the employee is excluded from participation (or 
accrues no benefit) merely because the employee's compensation is less 
than a stated amount, or (2) the employee is excluded from participation 
(or accrues no benefit) merely because of a failure to make mandatory 
employee contributions or, in the case of a cash or deferred 
arrangement, elective contributions.
    M-11 Q. May either the defined benefit minimum or the defined 
contribution minimum be integrated with social security?
    A. No.
    M-12 Q. What minimum contribution or benefit must be received by a 
non-key employee who participates in a top-heavy plan?
    A. In the case of an employer maintaining only one plan, if such 
plan is a defined benefit plan, each non-key employee covered by that 
plan must receive the defined benefit minimum. If such plan is a defined 
contribution plan (including a target benefit plan), each non-key 
employee covered by the plan must receive the defined contribution 
minimum. In the case of an employer who maintains more than one plan, 
employees covered under only the defined benefit plan must receive the 
defined benefit minimum. Employees covered under only the defined 
contribution plan must receive the defined contribution minimum. In the 
case of employees covered under both defined benefit and defined 
contribution plans, the rules are more complicated. Section 416(f) 
precludes, in the case of employees covered under both defined benefit 
and defined contribution plans, either required duplication or 
inappropriate omission. Therefore, such employees need not receive both 
the defined benefit and the defined contribution minimums.
    There are four safe harbor rules a plan may use in determining which 
minimum must be provided to a non-key employee who is covered by both 
defined benefit and defined contribution plans. Since the defined 
benefit minimums are generally more valuable, if each employee covered 
under both a top-heavy defined benefit plan and a top-heavy defined 
contribution plan receives the defined benefit minimum, the defined 
benefit and defined contribution minimums will be satisfied. Another 
approach that may be used is a floor offset approach (see Rev. Rul. 76-
259, 1976-2 C.B. 111) under which the defined benefit minimum is 
provided in the defined benefit plan and is offset by the benefits 
provided under the defined contribution plan. Another approach that may 
be used in the case of employees covered under both defined benefit and 
defined contribution plans is to prove, using a comparability analysis 
(see Rev. Rul. 81-202, 1981-2 C.B. 93) that the plans are providing 
benefits at least equal to the defined

[[Page 734]]

benefit minimum. Finally, in order to preclude the cost of providing the 
defined benefit minimum alone, the complexity of a floor offset plan and 
the annual fluctuation of a comparability analysis, a safe haven minimum 
defined contribution is being provided. If the contributions and 
forfeitures under the defined contribution plan equal 5% of compensation 
for each plan year the plan is top-heavy, such minimum will be presumed 
to satisfy the section 416 minimums.
    M-13 Q. An employer maintains a defined benefit plan and a profit-
sharing plan. Both plans are top-heavy and are members of a required 
aggregation group. In order to meet the minimum contribution/minimum 
benefit requirements, the employer decides to contribute 5% of 
compensation to the profit-sharing plan. What happens if for a 
particular plan year there are no profits out of which to make 
contributions to the profit-sharing plan?
    A. In this particular situation, in order to satisfy the 
requirements of section 416(c), the employer must provide the defined 
contribution minimum, 5% of compensation. This rule is an exception to 
the general rule that an employer cannot make a contribution to a 
profit-sharing plan if there are no profits. Alternatively, the employer 
may provide the defined benefit minimum for this year.
    M-14 Q. What minimum contribution or benefit must be received by a 
non-key employee when he is covered under both a defined benefit plan 
and defined contribution plan (both of which are top-heavy) of an 
employer and the employer desires to use a factor of 1.25 in computing 
the denominators of the defined benefit and defined contribution 
fractions under section 415(e)?
    A. In this particular situation, the employer may use one of the 
four rules set forth in Question and Answer M-12, subject to the 
following modifications. The defined benefit minimum must be increased 
by one percentage point (up to a maximum of ten percentage points) for 
each year of service described in Question and Answer M-2 of the 
participant's average compensation for the years described in Question 
and Answer M-2. The defined contribution minimum is increased to 7\1/2\ 
percent of compensation. If the floor offset or comparability analysis 
approach is used, the defined benefit minimum must be increased by one 
percentage point (up to a maximum of ten percentage points) for each 
year of service described in Question and Answer M-2 of the 
participant's average compensation for the years described in Question 
and Answer M-2.
    M-15 Q. May an employer use a different method each year to meet the 
requirements of Question and Answer M-12 or Question and Answer M-14 
without amending the plans each year?
    A. No. An employer must set forth in the plan document the method he 
will use to meet the requirements of Question and Answer M-12 or M-14, 
as the case may be. If an employer desires to change the method, the 
plan document must be amended.
    M-16 Q. Will target benefit plans be treated as defined benefit or 
defined contribution plans for purposes of the top-heavy rules?
    A. Target benefit plans will be treated as defined contribution 
plans for purposes of the top-heavy rules.
    M-17 Q. Can a plan described in section 412(i) (funded exclusively 
by level premium insurance contracts) also satisfy the minimum benefit 
requirements of section 416?
    A. The accrued benefits provided for a non-key employee under most 
level premium insurance contracts might not provide a benefit satisfying 
the defined benefit minimum because of the lower cash values in early 
years under most level premium insurance contracts, and because such 
contracts normally provide for level premiums until normal retirement 
age. However, a plan will not be considered to violate the requirements 
of section 412(i) merely because it funds certain benefits through 
either an auxiliary fund or deferred annuity contracts, if the following 
conditions are met:
    (1) The targeted benefit at normal retirement age under the level 
premium insurance contract is determined, taking into account the 
defined benefit minimum that would be required assuming the current top-
heavy (or non top-heavy) status of the plan continues until normal 
retirement age; and

[[Page 735]]

    (2) The benefits provided by the auxiliary fund or deferred annuity 
contracts do not exceed the excess of the defined benefit minimum 
benefits over the benefits provided by the level premium insurance 
contract.
    If the above conditions are satisfied, then the plan is still exempt 
from the minimum funding requirements under section 412 and may still 
utilize the special accrued benefit rule in section 411(b)(1)(F) subject 
to the following modifications: Although the portion of the plan funded 
by the level premium annuity contract is exempt from the minimum funding 
requirements, the portion funded by an auxiliary fund is subject to 
those requirements. (Thus, a funding standard account must be maintained 
and a Schedule B must be filed with the annual report). The accrued 
benefit for any participant may be determined using the rule in section 
411(b)(1)(F) but must not be less than the defined benefit minimum.
    M-18 Q. May qualified nonelective contributions described in section 
401(m)(4)(C) be treated as employer contributions for purposes of the 
minimum contribution or benefit requirement of section 416?
    A. Yes. This is the case even if the qualified nonelective 
contributions are taken into account under the actual deferral 
percentage test of Sec. 1.401(k)-1(b)(2) or under the actual 
contribution percentage test of Sec. 1.401(m)-1(b).
    M-19 Q. May matching contributions described in section 40l(m)(4)(A) 
be treated as employer contributions for purposes of the minimum 
contribution or benefit requirement of section 416?
    A. Matching contributions allocated to key employees are treated as 
employer contributions for purposes of determining the minimum 
contribution or benefit under section 416. However, if a plan uses 
contributions allocated to employees other than key employees on the 
basis of employee contributions or elective contributions to satisfy the 
minimum contribution requirement, these contributions are not treated as 
matching contributions for purposes of applying the requirements of 
sections 401(k) and 401(m) for plan years beginning after December 31, 
1988. Thus these contributions must meet the nondiscrimination 
requirements of section 401(a)(4) without regard to section 401(m). See 
Sec. 1.401(m)-1(f)(12)(iii).
    M-20 Q. May elective contributions be treated as employer 
contributions for purposes of satisfying the minimum contribution or 
benefit requirement of section 416(c)(2)?
    A. Elective contributions on behalf of key employees are taken into 
account in determining the minimum required contribution under section 
416(c)(2). However, elective contributions on behalf of employees other 
than key employees may not be treated as employer contributions for 
purposes of the minimum contribution or benefit requirement of section 
416. See section 401(k)(4)(C) and the regulations thereunder. This 
Question and Answer is effective for plan years beginning after December 
31, 1988.

[T.D. 7997, 49 FR 50646, Dec. 31, 1984, as amended by T.D. 8357, 56 FR 
40550, Aug. 15, 1991]



Sec. 1.417(e)-1  Restrictions and valuations of distributions from plans subject to sections 401(a)(11) and 417.

    (a) Scope--(1) In general. A plan does not satisfy the requirements 
of sections 401(a)(11) and 417 unless it satisfies the consent 
requirements, the determination of present value requirements and the 
other requirements set forth in this section. See section 401(a)(11) and 
Sec. 1.401(a)-20 for other rules regarding the survivor annuity 
requirements.
    (2) Additional requirements. See Sec. 1.411(a)-11 for other rules 
applicable to the consent requirements.
    (3) Accrued benefit. The definition of ``accrued benefit'' in 
Sec. 1.411(a)-11 applies when that term is used in this section.
    (b) Consent, etc. requirements--(1) General rule. Generally plans 
may not commence the distribution of any portion of a participant's 
accrued benefit in any form unless the applicable consent requirements 
are satisfied. No consent of the participant or spouse is needed for 
distribution of a QJSA or QPSA after the benefit is no longer 
immediately distributable (after the participant attains (or would have 
attained if not dead) the later of normal retirement age (as defined in 
section 411(a)(8)) or age 62). No consent of the

[[Page 736]]

spouse is needed for distribution of a QJSA at any time. After the 
participant's death, a benefit may be paid to a nonspouse beneficiary 
without the beneficiary's consent. A distribution cannot be made at any 
time in a form other than a QJSA unless such QJSA has been waived by the 
participant and such waiver has been consented to by the spouse. A QJSA 
is an annuity that commences immediately. Thus, for example, a plan may 
not offer a participant separating from service at age 45 a choice only 
between a single sum distribution at separation of service and a joint 
and survivor annuity that satisfies all the requirements of a QJSA 
except that it commences at normal retirement age rather than 
immediately. To satisfy this section, the plan must also offer a QJSA 
(i.e., an annuity that satisfies all the requirements for a QJSA 
including the requirement that it commences immediately).
    (2) Consent. (i) Written consent of the participant and, if the 
participant is married at the annuity starting date and the benefit is 
to be paid in a form other than a QJSA, the participant's spouse (or, if 
either the participant or the spouse has died, the survivor) is required 
before the commencement of the distribution of any part of an accrued 
benefit if the present value of the nonforfeitable benefit is greater 
than $3,500. No consent is valid unless the participant has received a 
general description of the material features, and an explanation of the 
relative values of, the optional forms of benefit available under the 
plan in a manner which would satisfy the notice requirements of section 
417(a)(3). See Sec. 1.401(a)-20 Q&A 36. No consent is required before 
the annuity starting date if the present value of the nonforfeitable 
benefit is not more than $3,500. If the present value of the accrued 
benefit at the time of any distribution exceeds $3,500, the present 
value of the accrued benefit at any subsequent time will be deemed to 
exceed $3,500.
    (ii) In determining the present value of any nonforfeitable accrued 
benefit, a defined benefit plan is limited by the interest rate 
restriction as set forth in paragraph (d) of this section.
    (3) Time of consent. For distributions on or after September 22, 
1995, the additional rules concerning the notice and consent 
requirements of section 417 in Sec. 1.417(e)-1T(b)(3) and (4) also 
apply. For distributions before September 22, 1995, the additional rules 
concerning the notice and consent requirements of section 417 in 
Sec. 1.417(e)-1(b)(3) (as it appeared in the April 1, 1995 edition of 26 
CFR part 1) apply.
    (c) Permitted distributions. A plan may not require that a 
participant or surviving spouse begin to receive benefits without 
satisfying paragraph (b) of this section while such benefits are 
immediately distributable, (see paragraph (b)(1) of this section). Once 
benefits are no longer immediately distributable, all benefits that the 
plan requires to begin must be provided in the form of a QJSA and QPSA 
unless the applicable written explanation, election and consent 
requirements of section 417 are satisfied.
    (d) Present value requirement For rules regarding the present value 
of a participant's accrued benefit and related matters, see 
Sec. 1.417(e)-1T(d).
    (e) Special rules for annuity contracts--(1) General rule. Any 
annuity contract purchased by a plan subject to section 401(a)(11) and 
distributed to or owned by a participant must provide that benefits 
under the contract are provided in accordance with the applicable 
consent, present value, and other requirements of sections 401(a)(11) 
and 417 applicable to the plan.
    (2) [Reserved{time} 
    (f) Effective dates--(1) Annuity contracts. (i) Paragraph (e) of 
this section does not apply to contracts distributed to or owned by a 
participant prior to September 17, 1985, unless additional contributions 
are made under the plan by the employer with respect to such contracts.
    (ii) In the case of a contract owned by the employer or distributed 
to or owned by a participant prior to the first plan year beginning 
after December 31, 1988, paragraph (e) of this section shall be 
satisfied if the annuity contracts described therein satisfy the 
requirements in Secs. 1.401(a)-11T and 1.417(e)-1T. The preceding 
sentence shall not apply if additional contributions are made under the 
plan by the employer with respect to such contracts on or after the 
beginning of the

[[Page 737]]

first plan year beginning after December 31, 1988.
    (2) Interest rates. (i) A plan that uses the PBGC immediate interest 
rate as required by Sec. 1.417(e)-1T(e) for distributions commencing in 
plan years beginning before January 1, 1987, shall be deemed to satisfy 
paragraph (d) of this section for such years.
    (ii) For a special exception to the requirements of section 
411(d)(6) for certain plan amendments that incorporate applicable 
interest rates, see section 1139(d)(2) of the Tax Reform Act of 1986.
    (3) Other effective dates and transitional rules. (i) Except as 
otherwise provided, a plan will be treated as satisfying sections 
401(a)(11) and 417 for plan years beginning before the first plan year 
that the requirements of section 410(b) as amended by TRA 86 apply to 
such plan, if the plan satisfied the requirements in Secs. 1.401(a)-11T 
and 1.417(e)-1T.
    (ii) See Sec. 1.401(a)-20 for other effective dates and transitional 
rules that apply to plans subject to sections 401(a)(11) and 417.

[T.D. 8219, 53 FR 31854, Aug. 22, 1988; 53 FR 48534, Dec. 1, 1988, as 
amended by T.D. 8591, 60 FR 17219, Apr. 5, 1995; T.D. 8620, 60 FR 49221, 
Sept. 22, 1995]



Sec. 1.417(e)-1T  Restrictions and valuations of distributions from plans subject to sections 401(a)(11) and 417. (Temporary)

    (a) [Reserved]
    (b) Consent, etc. requirements--(1) General rule. [Reserved]
    (2) Consent. [Reserved]
    (3) Time of consent--(i) Written consent of the participant and the 
participant's spouse to the distribution must be made not more than 90 
days before the annuity starting date.
    (ii) A plan must provide participants with the written explanation 
of the QJSA required by section 417(a)(3) no less than 30 days and no 
more than 90 days before the annuity starting date. However, if the 
participant, after having received the written explanation of the QJSA, 
affirmatively elects a form of distribution and the spouse consents to 
that form of distribution (if necessary), a plan will not fail to 
satisfy the requirements of section 417(a) merely because the annuity 
starting date is less than 30 days after the written explanation was 
provided to the participant, provided that the following requirements 
are met:
    (A) The plan administrator provides information to the participant 
clearly indicating that (in accordance with the first sentence of this 
paragraph (b)(3)(ii)) the participant has a right to at least 30 days to 
consider whether to waive the QJSA and consent to a form of distribution 
other than a QJSA.
    (B) The participant is permitted to revoke an affirmative 
distribution election at least until the annuity starting date, or, if 
later, at any time prior to the expiration of the 7-day period that 
begins the day after the explanation of the QJSA is provided to the 
participant.
    (C) The annuity starting date is after the date that the explanation 
of the QJSA is provided to the participant. However, the plan may permit 
the annuity starting date to be before the date that any affirmative 
distribution election is made by the participant and before the date 
that the distribution is permitted to commence under paragraph 
(b)(3)(ii)(D) of this section.
    (D) Distribution in accordance with the affirmative election does 
not commence before the expiration of the 7-day period that begins the 
day after the explanation of the QJSA is provided to the participant.
    (iii) The following example illustrates the provisions of this 
paragraph (b)(3):

    Example. Employee E, a married participant in a defined benefit plan 
who has terminated employment, is provided with the explanation of the 
QJSA on November 28. Employee E elects (with spousal consent) on 
December 2 to waive the QJSA and receive an immediate distribution in 
the form of a single life annuity. The plan may permit Employee E to 
receive payments with an annuity starting date of December 1, provided 
that the first payment is made no earlier than December 6 and the 
participant does not revoke the election before that date. The plan can 
make the remaining monthly payments on the first day of each month 
thereafter in accordance with its regular payment schedule.

    (4) Delegation to Commissioner. The Commissioner, in revenue 
rulings, notices, and other guidance published in the Internal Revenue 
Bulletin, may

[[Page 738]]

modify, or provide additional guidance with respect to, the notice and 
consent requirements of this section. See Sec. 601.601(d)(2)(ii)(b) of 
this chapter.
    (c) [Reserved]
    (d) Present value requirement--(1) General rule. A defined benefit 
plan must provide that the present value of any accrued benefit and the 
amount (subject to sections 411(c)(3) and 415) of any distribution, 
including a single sum, must not be less than the amount calculated 
using the applicable interest rate described in paragraph (d)(3) of this 
section (determined for the month described in paragraph (d)(4) of this 
section) and the applicable mortality table described in paragraph 
(d)(2) of this section. The present value of any optional form of 
benefit cannot be less than the present value of the normal retirement 
benefit determined in accordance with the preceding sentence. The same 
rules used for the plan under this paragraph (d) must also be used to 
compute the present value of the benefit for purposes of determining 
whether consent for a distribution is required under paragraph (b) of 
this section.
    (2) Applicable mortality table. The applicable mortality table is 
the mortality table based on the prevailing commissioners' standard 
table (described in section 807(d)(5)(A)) used to determine reserves for 
group annuity contracts issued on the date as of which present value is 
being determined (without regard to any other subparagraph of section 
807(d)(5)), that is prescribed by the Commissioner in revenue rulings, 
notices, or other guidance, published in the Internal Revenue Bulletin 
(see Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (3) Applicable interest rate--(i) General rule. The applicable 
interest rate for a month is the annual interest rate on 30-year 
Treasury securities as specified by the Commissioner for that month in 
revenue rulings, notices or other guidance, published in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (ii) Example. This example illustrates the rules of this paragraph 
(d)(3):

    Example. Plan A is a calendar year plan. For its 1995 plan year, 
Plan A provides that the applicable mortality table is the table 
described in Rev. Rul. 95-6, 1995-4 I.R.B. 22, and that the applicable 
interest rate for Plan A is the annual interest rate on 30-year Treasury 
securities as specified by the Commissioner for the first full calendar 
month preceding the calendar month that contains the annuity starting 
date. Participant P is age 65 in January 1995, which is the month that 
contains P's annuity starting date. P has an accrued benefit payable 
monthly of $1,000 and has elected to receive a distribution in the form 
of a single sum in January 1995. The annual interest rate on 30-year 
Treasury securities as published by the Commissioner for December 1994 
is 7.87 percent. To satisfy the requirements of section 417(e)(3) and 
this paragraph (d), the single sum received by P may not be less than 
$111,351.

    (4) Time for determining interest rate--(i) General rule. The 
applicable interest rate to be used for a distribution is the rate 
determined under paragraph (d)(3) of this section for the applicable 
lookback month. The applicable lookback month for a distribution is the 
lookback month (as described in paragraph (d)(4)(iii) of this section) 
for the month (or other longer stability period described in paragraph 
(d)(4)(ii) of this section) that contains the annuity starting date for 
the distribution. The time for determining the applicable interest rate 
for each participant's distribution must be determined in a consistent 
manner that is applied uniformly to all participants in the plan.
    (ii) Stability period. A plan must specify the period for which the 
applicable interest rate remains constant. This stability period may be 
one calendar month, one plan quarter, or one plan year.
    (iii) Lookback month. A plan must specify the lookback month that is 
used to determine the applicable interest rate. The lookback month may 
be the first, second, third, fourth, or fifth full calendar month 
preceding the first day of the stability period.
    (iv) Additional determination dates. The Commissioner may prescribe, 
in revenue rulings, notices or other guidance, published in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b)), other times that a 
plan may provide for determining the applicable interest rate.
    (v) Example. This example illustrates the rules of this paragraph 
(d)(4).

    Example. Employer X maintains Plan A, a calendar year plan. Employer 
X wishes to

[[Page 739]]

amend Plan A so that the applicable interest rate will remain fixed for 
each plan quarter, and so that the applicable interest rate for 
distributions made during each plan quarter can be determined 
approximately 80 days before the beginning of the plan quarter. To 
comply with the provisions of this paragraph (d)(4), Plan A is amended 
to provide that the applicable interest rate is the annual interest rate 
on 30-year Treasury securities as specified by the Commissioner for the 
fourth calendar month preceding the first day of the plan quarter during 
which the annuity starting date occurs.

    (5) Use of alternative interest rate and mortality table. If a plan 
provides for use of an interest rate or mortality table other than the 
applicable interest rate or the applicable mortality table, the plan 
must provide that a participant's benefit must be at least as great as 
the benefit produced by using the applicable interest rate and the 
applicable mortality table. For example, where a plan provides for use 
of an interest rate of 7% and the UP-1984 Mortality Table (see 
Sec. 1.401(a)(4)-12, Standard mortality table) in calculating single-sum 
distributions, the plan must provide that any single-sum distribution is 
calculated as the greater of the single-sum benefit calculated using 
this actuarial basis (i.e., 7% and the UP-1984 Mortality Table) and the 
single sum calculated using the applicable interest rate and the 
applicable mortality table.
    (6) Exceptions. This paragraph (d) (other than the provisions 
relating to section 411(d)(6) requirements in paragraph (d)(10) of this 
section) does not apply to the amount of a distribution under a 
nondecreasing annuity payable for a period not less than the life of the 
participant or, in the case of a QPSA, the life of the surviving spouse. 
A nondecreasing annuity includes a QJSA, QPSA and an annuity that 
decreases merely because of the cessation or reduction of Social 
Security supplements or qualified disability payments (as defined in 
section 411(a)(9)).
    (7) Defined contribution plans. Because the accrued benefit under a 
defined contribution plan equals the account balance, a defined 
contribution plan is not subject to the requirements of this paragraph 
(d), even though it is subject to section 401(a)(11).
    (8) Effective date--(i) In general. This paragraph (d) is effective 
for distributions with annuity starting dates in plan years beginning 
after December 31, 1994.
    (ii) Optional delayed effective date of Retirement Protection Act of 
1994 (RPA '94)(108 Stat. 5012) rules for plans adopted and in effect 
before December 8, 1994. For a plan adopted and in effect before 
December 8, 1994, the application of the rules relating to the 
applicable mortality table and applicable interest rate under paragraphs 
(d) (2) through (4) of this section is delayed to the extent provided in 
this paragraph (d)(8)(ii), if the plan provisions in effect on December 
7, 1994, met the requirements of section 417(e)(3) and Sec. 1.417(e)-
1(d) as in effect on December 7, 1994 (as contained in 26 CFR part 1 
revised April 1, 1995). In the case of a distribution from such a plan 
with an annuity starting date that precedes the optional delayed 
effective date described in paragraph (d)(8)(iv) of this section, and 
that precedes the first day of the first plan year beginning after 
December 31, 1999, the rules of paragraph (d)(9) of this section (which 
generally apply to distributions with annuity starting dates in plan 
years beginning before January 1, 1995) apply in lieu of the rules of 
paragraphs (d) (2) through (4) of this section. The interest rate under 
the rules of paragraph (d)(9) of this section is determined under the 
provisions of the plan as in effect on December 7, 1994, reflecting the 
interest rate or rates published by the Pension Benefit Guaranty 
Corporation (PBGC) and the provisions of the plan for determining the 
date on which the interest rate is fixed. The above described interest 
rate or rates published by the PBGC are those determined by the PBGC 
(for the date determined under those plan provisions) pursuant to the 
PBGC's methodology under the regulations of the PBGC for determining the 
present value of a lump sum distribution on plan termination under 29 
CFR Part 2619 that were in effect on September 1, 1993 (as contained in 
29 CFR part 2619 revised July 1, 1994).
    (iii) Optional accelerated effective date of RPA '94 rules. This 
paragraph (d) is also effective for a distribution with an annuity 
starting date after December

[[Page 740]]

7, 1994, during a plan year beginning before January 1, 1995, if the 
employer elects, on or before the annuity starting date, to make the 
rules of this paragraph (d) effective with respect to the plan as of the 
optional accelerated effective date described in paragraph (d)(8)(iv) of 
this section. An employer is treated as making this election by making 
the plan amendments described in paragraph (d)(8)(iv) of this section.
    (iv) Determination of delayed or accelerated effective date by plan 
amendment adopting RPA '94 rules. The optional delayed effective date of 
paragraph (d)(8)(ii) of this section, or the optional accelerated 
effective date of paragraph (d)(8)(iii) of this section, whichever is 
applicable, is the date plan amendments applying both the applicable 
mortality table of paragraph (d)(2) of this section and the applicable 
interest rate of paragraph (d)(3) of this section are adopted or, if 
later, are made effective.
    (9) Plan years beginning before January 1, 1995--(i) Interest rate. 
(A) For distributions made in plan years beginning after December 31, 
1986, and before January 1, 1995, the following interest rate described 
in paragraph (d)(9)(i)(A)(1) or (2) of this section, whichever applies, 
is substituted for the applicable interest rate for purposes of this 
section--
    (1) The rate or rates that would be used by the PBGC for a trusteed 
single-employer plan to value the participant's (or beneficiary's) 
vested benefit (PBGC interest rate) if the present value of such benefit 
does not exceed $25,000; or
    (2) 120 percent of the PBGC interest rate, as determined in 
accordance with paragraph (d)(9)(i)(A)(1) of this section, if such 
present value exceeds $25,000. In no event shall the present value 
determined by use of 120 percent of the PBGC interest rate result in a 
present value less than $25,000.
    (B) The PBGC interest rate may be a series of interest rates for any 
given date. For example, the PBGC interest rate for immediate annuities 
for November 1994 is 6%, and the PBGC interest rates for the deferral 
period for that month are as follows: 5.25% for the first 7 years of the 
deferral period, 4% for the following 8 years of the deferral period, 
and 4% for the remainder of the deferral period. For November 1994, 120 
percent of the PBGC interest rate is 7.2% (1.2 times 6%) for an 
immediate annuity, 6.3% (1.2 times 5.25%) for the first 7 years of the 
deferral period, 4.8% (1.2 times 4%) for the following 8 years of the 
deferral period, and 4.8% (1.2 times 4%) for the remainder of the 
deferral period. The PBGC interest rates are the interest rates that 
would be used (as of the date of the distribution) by the PBGC for 
purposes of determining the present value of that benefit upon 
termination of an insufficient trusteed single employer plan. Except as 
otherwise provided by the Commissioner, the PBGC interest rates are 
determined by PBGC regulations. See 29 CFR part 2619 for the applicable 
PBGC rates.
    (ii) Time for determining interest rate. (A) Except as provided in 
paragraph (d)(9)(ii)(B) of this section, the PBGC interest rate or rates 
are determined on either the annuity starting date or the first day of 
the plan year that contains the annuity starting date. The plan must 
provide which date is applicable.
    (B) The plan may provide for the use of any other time for 
determining the PBGC interest rate or rates provided that such time is 
not more than 120 days before the annuity starting date if such time is 
determined in a consistent manner and is applied uniformly to all 
participants.
    (C) The Commissioner may, in revenue rulings, notices or other 
guidance, published in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2)(ii)(b)), prescribe other times for determining the 
PBGC interest rate or rates.
    (iii) No applicable mortality table. In the case of a distribution 
to which this paragraph (d)(9) applies, the rules of this paragraph (d) 
are applied without regard to the applicable mortality table described 
in paragraph (d)(2) of this section.
    (10) Relationship with section 411(d)(6)--(i) In general. Except as 
provided in this paragraph (d)(10), a plan amendment that changes the 
interest rate, the time for determining the interest rate, or the 
mortality assumptions used for the purposes described in

[[Page 741]]

paragraph (d)(1) of this section is subject to section 411(d)(6). But 
see Sec. 1.411(d)-4, Q&A 2(b)(2)(v) (regarding plan amendments relating 
to involuntary distributions).
    (ii) Change in time for determining interest rate. Notwithstanding 
the general rule of paragraph (d)(10)(i) of this section, if a plan 
amendment changes the time for determining the applicable interest rate 
(including an indirect change as a result of a change in plan year), the 
amendment will not be treated as reducing accrued benefits in violation 
of section 411(d)(6) merely on account of this change if the conditions 
of this paragraph (d)(10)(ii) are satisfied. Any distribution for which 
the annuity starting date occurs in the one-year period commencing at 
the time the plan amendment is effective (if the amendment is effective 
on or after the adoption date) must use the interest rate as provided 
under the terms of the plan after the effective date of the amendment, 
determined at either the date for determining the interest rate before 
the amendment or the date for determining the interest rate after the 
amendment, whichever results in the larger distribution. If the plan 
amendment is adopted retroactively (that is, the amendment is effective 
prior to the adoption date), the plan must use the interest rate 
determination date resulting in the larger distribution for the period 
beginning with the effective date and ending one year after the adoption 
date.
    (iii) Section 411(d)(6) relief for plan amendments pursuant to 
changes to section 417 made by RPA '94--(A) Replacement of PBGC interest 
rate. A participant's accrued benefit is not considered to be reduced in 
violation of section 411(d)(6) merely because of a plan amendment that 
changes any interest rate or mortality assumption used to calculate the 
present value of a participant's benefit under the plan (even if the 
amendment provides for temporary additional benefits to accommodate a 
more gradual transition from the plan's old interest rate to the new 
rules), if the following conditions are satisfied--
    (1) The amendment replaces the PBGC interest rate (or an interest 
rate or rates based on the PBGC interest rate) as the interest rate used 
under the plan in determining the present value of a participant's 
benefit under this paragraph (d); and
    (2) After the amendment is effective, the present value of a 
participant's benefit under the plan cannot be less than the amount 
calculated using the applicable mortality table and the applicable 
interest rate for the first full calendar month preceding the calendar 
month that contains the annuity starting date.
    (B) Replacement of non-PBGC interest rate. The section 411(d)(6) 
relief provided in paragraph (d)(10)(iii)(A) of this section does not 
apply to a plan amendment that replaces an interest rate other than the 
PBGC interest rate (or an interest rate or rates based on the PBGC 
interest rate) as an interest rate used under the plan in determining 
the present value of a participant's benefit under this paragraph (d). 
Thus, the accrued benefit determined using that interest rate and the 
associated mortality table is protected under section 411(d)(6). For 
purposes of paragraphs (d)(10)(iii)(A) and (B) of this section, an 
interest rate is based on the PBGC interest rate if the interest rate is 
defined as a specified percentage of the PBGC interest rate or as the 
PBGC interest rate minus a specified number of basis points.
    (C) Plan amendment providing for prior determination date or up to 
two months earlier. If the special rule of paragraph (d)(10)(iii)(A) of 
this section would apply to a plan except that the applicable interest 
rate is determined for a month other than the first full calendar month 
preceding the calendar month that contains the annuity starting date, a 
participant's accrued benefit is not considered to be reduced in 
violation of section 411(d)(6) if the applicable interest rate is 
determined for the calendar month that contains the date as of which the 
PBGC interest rate was determined immediately before the amendment, or 
for one of the two calendar months immediately preceding that month, or 
if the plan amendment satisfies the conditions of paragraph (d)(10)(ii) 
of this section.
    (D) Examples. The provisions of this paragraph (d)(10)(iii) are 
illustrated by the following examples:


[[Page 742]]


    Example 1. On December 31, 1994, Plan A provided that all single-sum 
distributions were to be calculated using the UP-1984 Mortality Table 
and 100% of the PBGC interest rate for the date of distribution. On 
January 4, 1995, and effective on February 1, 1995, Plan A was amended 
to provide that all single-sum distributions are calculated using the 
applicable mortality table and the annual interest rate on 30-year 
Treasury securities for the first full calendar month preceding the 
calendar month that contains the annuity starting date. This amendment 
of Plan A is not considered to reduce the accrued benefit of any 
participant in violation of section 411(d)(6).
    Example 2. On December 31, 1994, Plan B provided that all single-sum 
distributions were to be calculated using the UP-1984 Mortality Table 
and an interest rate equal to the lesser of 100% of the PBGC interest 
rate for the date of distribution, or 6%. On January 4, 1995, and 
effective on February 1, 1995, Plan B was amended to provide that all 
single-sum distributions are calculated using the applicable mortality 
table and the annual interest rate on 30-year Treasury securities for 
the second full calendar month preceding the calendar month that 
contains the annuity starting date. The 6% interest rate provided for 
under the plan is not based on the PBGC interest rate. Therefore, to 
satisfy the requirements of section 411(d)(6), the plan must provide 
that the single-sum distribution payable to any participant must be no 
less than the single-sum distribution calculated using the UP-1984 
Mortality Table and an interest rate of 6%, based on the participant's 
benefits under the plan accrued through January 31, 1995, and based on 
the participant's age at the annuity starting date.
    Example 3. (a) Employer X maintains Plan C, a calendar year plan. As 
of December 7, 1994, Plan C provided for single-sum distributions to be 
calculated using the PBGC interest rate as of the annuity starting date 
for distributions not greater than $25,000, and 120% of that interest 
rate (but not an interest rate producing a present value less than 
$25,000) for distributions over $25,000. Employer X wishes to delay the 
effective date of the RPA '94 rules for a year, and to provide for an 
extended transition from the use of the PBGC interest rate to the new 
applicable interest rate under section 417(e)(3). On December 1, 1995, 
and effective on January 1, 1996, Employer X amends Plan C to provide 
that single-sum distributions are determined as the sum of--
    (i) The single-sum distribution calculated based on the applicable 
mortality table and the annual interest rate on 30-year Treasury 
securities for the first full calendar month preceding the calendar 
month that contains the annuity starting date; and
    (ii) A transition amount.
    (b) The amendment provides that the transition amount for 
distributions in the years 1996-99 is a transition percentage of the 
excess, if any, of the amount that the single-sum distribution would 
have been under the plan provisions in effect prior to this amendment 
over the amount of the single sum described in paragraph (a)(i) of this 
Example 3. The transition percentages are 80% for 1996, decreasing to 
60% for 1997, 40% for 1998 and 20% for 1999. The amendment also provides 
that the transition amount is zero for plan years beginning on or after 
the year 2000. Plan C is not considered to have reduced the accrued 
benefit of any participant in violation of section 411(d)(6) by reason 
of this plan amendment.

[T.D. 8591, 60 FR 17219, Apr. 5, 1995, as amended by T.D. 8620, 60 FR 
49221, Sept. 22, 1995]



Sec. 1.419-1T  Treatment of welfare benefit funds. (Temporary)

    Q-1: What does section 419 of the Internal Revenue Code provide?
    A-1: Section 419 prescribes limitations upon deductions for 
contributions paid or accrued with respect to a welfare benefit fund. 
Under section 419 (a) and (b), an employer's contributions to a welfare 
benefit fund are not deductible under section 162 (relating to trade or 
business expenses) or section 212 (relating to expenses for production 
of income) but, if the requirements of section 162 or 212 are otherwise 
met, are deductible under section 419 for the taxable year of the 
employer in which paid to the extent of the welfare benefit fund's 
qualified cost (within the meaning of section 419(c)(1)) for the taxable 
year of the fund that relates to such taxable year of the employer. 
Under section 419(g), section 419 and this section shall also apply to 
the deduction by a taxpayer of contributions with respect to a fund that 
would be a welfare benefit fund but for the fact that there is no 
employer-employee relationship between the person providing the services 
and the person for whom the services are provided. Contributions paid to 
a welfare benefit fund after section 419 becomes effective with respect 
to such contributions are deemed to relate, first, to amounts accrued 
and deducted (but not paid) by the employer with respect to such fund 
before section 419 becomes effective with respect to such contributions 
and thus shall not be treated as satisfying the payment requirement of 
section

[[Page 743]]

419. See paragraph (b) of Q&A-5 for special deduction limits applicable 
to employer contributions to welfare benefit funds with excess reserves.
    Q-2: When do the deduction rules of section 419, as enacted by the 
Tax Reform Act of 1984, become effective?
    A-2: (a) Section 419 generally applies to contributions paid or 
accrued with respect to a welfare benefit fund after December 31, 1985, 
in taxable years of employers ending after that date. See Q&A-9 of this 
regulation for special rules relating to the deduction limit for the 
first taxable year of a fiscal year employer ending after December 31, 
1985.
    (b) In the case of a welfare benefit fund which is part of a plan 
maintained pursuant to one or more collective bargaining agreements (1) 
between employee representatives and one or more employers, and (2) that 
are in effect on July 1, 1985 (or ratified on or before such date), 
sections 419 shall not apply to contributions paid or accrued in taxable 
years beginning before the termination of the last of the collective 
bargaining agreements pursuant to which the plan is maintained 
(determined without regard to any extension thereof agreed to after July 
1, 1985). For purposes of the preceding sentence, any plan amendment 
made pursuant to a collective bargaining agreement relating to the plan 
which amends the plan solely to conform to any requirement added under 
section 511 of the Tax Reform Act of 1984 (i.e., requirements under 
sections 419, 419A, 512(a)(3)(E), and 4976) shall not be treated as a 
termination of such collective bargaining agreement. See Sec. 1.419A-2T 
for special rules relating to the application of section 419 to 
collectively bargained welfare benefit funds.
    (c) Notwithstanding paragraphs (a) and (b), section 419 applies to 
any contribution of a facility to a welfare benefit fund (or other 
contribution, such as cash, which is used to acquire, construct, or 
improve such a facility) after June 22, 1984, unless such facility is 
placed in service by the fund before January 1, 1987, and either (1) is 
acquired or improved by the fund (or contributed to the fund) pursuant 
to a binding contract in effect on June 22, 1984, and at all times 
thereafter, or (2) the construction of which was begun by or for the 
welfare benefit fund before June 22, 1984. See Q&A-11 of this regulation 
for special rules relating to the application of section 419 to the 
contribution of a facility to a welfare benefit fund (and to the 
contribution of other amounts, such as cash, used to acquire, construct, 
or improve such a facility) before section 419 generally becomes 
effective with respect to contributions to the fund.
    Q-3. What is a ``welfare benefit fund'' under section 419?
    A-3. (a) A ``welfare benefit fund'' is any fund which is part of a 
plan, or method or arrangement, of an employer and through which the 
employer provides welfare benefits to employees or their beneficiaries. 
For purposes of this section, the term ``welfare benefit'' includes any 
benefit other than a benefit with respect to which the employer's 
deduction is governed by section 83(h), section 404 (determined without 
regard to section 404(b)(2)), section 404A, or section 463.
    (b) Under section 419(e)(3) (A) and (B), the term ``fund'' includes 
any organization described in section 501(c) (7), (9), (17) or (20), and 
any trust, corporation, or other organization not exempt from tax 
imposed by chapter 1, subtitle A, of the Internal Revenue Code. Thus, a 
taxable trust or taxable corporation that is maintained for the purpose 
of providing welfare benefits to an employer's employees is a ``welfare 
benefit fund.''
    (c) Section 419(e)(3)(C) also provides that the term ``fund'' 
includes, to the extent provided in regulations, any account held for an 
employer by any person. Pending the issuance of further guidance, only 
the following accounts, and arrangements that effectively constitute 
accounts, as described below, are ``funds'' within section 419(e)(3)(C).
    A retired lives reserve or a premium stabilization reserve 
maintained by an insurance company is a ``fund,'' or part of a ``fund,'' 
if it is maintained for a particular employer and the employer has the 
right to have any amount in the reserve applied against its future 
years' benefit costs or insurance premiums. Also, if an employer makes a 
payment to an insurance company under an ``administrative services

[[Page 744]]

only'' arrangement with respect to which the life insurance company 
maintains a separate account to provide benefits, then the arrangement 
would be considered to be a ``fund.'' Finally, an insurance or premium 
arrangement between an employer and an insurance company is a ``fund'' 
if, under the arrangement, the employer has a right to a refund, credit, 
or additional benefits (including upon termination of the arrangement) 
based on the benefit or claims experience, administrative cost 
experience, or investment experience attributable to such employer. 
However, an arrangement with an insurance company is not a ``fund'' 
under the previous sentence merely because the employer's premium for a 
renewal year reflects the employer's own experience for an earlier year 
if the arrangement is both cancellable by the insurance company and 
cancellable by the employer as of the end of any policy year and, upon 
cancellation by either of the parties, neither of the parties can 
receive a refund or additional amounts or benefits and neither of the 
parties can incur a residual liability beyond the end of the policy year 
(other than, in the case of the insurer, to provide benefits with 
respect to claims incurred before cancellation). The determination 
whether either of the parties can receive a refund or additional amounts 
or benefits or can incur a residual liability upon cancellation of an 
arrangement will be made by examining both the contractual rights and 
obligations of the parties under the arrangement and the actual practice 
of the insurance company (and other insurance companies) with respect to 
other employers upon cancellation of similar arrangements. Similarly, a 
disability income policy does not constitute a ``fund'' under the 
preceding provisions merely because, under the policy, an employer pays 
an annual premium so that employees who became disabled in such year may 
receive benefit payments for the duration of the disability.
    Q-4: For purposes of determining the section 419 limit on the 
employer's deduction for contributions to the fund for a taxable year of 
the employer, which taxable year of the welfare benefit fund is related 
to the taxable year of the employer?
    A-4: The amount of an employer's deduction for contributions to a 
welfare benefit fund for a taxable year of the employer is limited to 
the ``qualified cost'' of the welfare benefit fund for the taxable year 
of the fund that is related to such taxable year of the employer. The 
taxable year of the welfare benefit fund that ends with or within the 
taxable year of the employer is the taxable year of the fund that is 
related to the taxable year of the employer. Thus, for example, if an 
employer has a calendar taxable year and it makes contributions to a 
fund having a taxable year ending June 30, the ``qualified cost'' of the 
fund for the taxable year of the fund ending on June 30, 1986, applies 
to limit the employer's deduction for contributions to the fund in the 
employer's 1986 taxable year. In the case of employer contributions paid 
directly to an account or arrangement with an insurance company that is 
treated as a welfare benefit fund for the purposes of section 419, the 
policy year will be treated as the taxable year of the fund. See Q&A-7 
of this regulation for special section 419 rules relating to the 
coordination of taxable years for the taxable year of the employer in 
which a welfare benefit fund is established and for the next following 
taxable year of the employer.
    Q-5: What is the ``qualified cost'' of a welfare benefit fund for a 
taxable year under section 419?
    A-5: (a) Under section 419(c), the ``qualified cost'' of a welfare 
benefit fund for a taxable year of the fund is the sum of: (1) The 
``qualified direct cost'' of such fund for such taxable year of the 
fund, and (2) the amount that may be added to the qualified asset 
account for such taxable year of the fund to the extent that such 
addition does not result in a total amount of such account as of the end 
of such taxable year of the fund that exceeds the applicable account 
limit under section 419A(c). However, in calculating the qualified cost 
of a welfare benefit fund for a taxable year of the fund, this sum is 
reduced by the fund's ``after-tax income'' (as defined in section 
419(c)(4)) for such taxable year of the fund. Also, the qualified cost 
of a welfare benefit

[[Page 745]]

fund is reduced further under the provisions of paragraph (b) of this 
Q&A.
    (b)(1) Pursuant to section 419A(i), notwithstanding section 419 and 
Sec. 1.419-1T, contributions to a welfare benefit fund during any 
taxable year of the employer beginning after December 31, 1985, shall 
not be deductible for such taxable year to the extent that such 
contributions result in the total amount in the fund as of the end of 
the last taxable year of the fund ending with or within such taxable 
year of the employer exceeding the account limit applicable to such 
taxable year of the fund (as adjusted under section 419A(f)(7)). Solely 
for purposes of this subparagraph, (i) contributions paid to a welfare 
benefit fund during the taxable year of the employer but after the end 
of the last taxable year of the fund that relates to such taxable year 
of the employer, and (ii) contributions accrued with respect to a 
welfare benefit fund during the taxable year of the employer or during 
any prior taxable year of the employer (but not actually paid to such 
fund on or before the end of a taxable year of the employer) and 
deducted by the employer for such or any prior taxable year of the 
employer, shall be treated as an amount in the fund as of the end of the 
last taxable year of the fund that relates to the taxable year of the 
employer. Contributions that are not deductible under this subparagraph 
are in excess of the qualified cost of the welfare benefit fund for the 
taxable year of the fund that relates to the taxable year of the 
employer and thus are treated as contributed to the fund on the first 
day of the employer's next taxable year.
    (2) Paragraph (b)(1) of this section shall not apply to 
contributions with respect to a collectively bargained welfare benefit 
fund within the meaning of Sec. 1.419A-2T. In addition, paragraph (b)(1) 
of this section shall not apply to any taxable year of an employer 
beginning after the end of the earlier of the following taxable years: 
(i) the first taxable year of the employer beginning after December 31, 
1985, for which the employer's deduction limit under section 419 (after 
the application of paragraph (b)(1) of this section) is at least equal 
to the qualified direct cost of the fund for the taxable year (or years) 
of the fund that relates to such first taxable year of the employer, or 
(ii) the first taxable year of the employer beginning after December 31, 
1985, with or within which ends the first taxable year of the fund with 
respect to which the total amount in the fund as of the end of such 
taxable year of the fund does not exceed the account limit for such 
taxable year of the fund (as adjusted under section 419A(f)(7)).
    (3) For example, assume an employer with a taxable year ending June 
30 and a welfare benefit fund with a taxable year ending January 31. 
During its taxable year ending June 30, 1987, and on or before January 
31, 1987, the employer contributes $250,000 to the fund, and during the 
remaining portion of its taxable year ending June 30, 1987, the employer 
contributes $200,000. The qualified direct cost of the fund for its 
taxable year ending January 31, 1987, is $500,000, the account limit 
applicable to such taxable year (after the adjustment under section 
419A(f)(7)) is $750,000, and the total amount in the fund as of January 
31, 1987, is $800,000. Before the application of this paragraph, the 
employer may deduct the entire $450,000 contribution for its taxable 
year ending June 30, 1987. However, under this paragraph, the excess of 
(i) the sum of the total amount in the fund as of January 31, 1987 
($800,000), and employer contributions to the fund after January 31, 
1987, and on or before June 30, 1987 ($200,000), over (ii) the account 
limit applicable to the fund for its taxable year ending January 31, 
1987 ($750,000), is $250,000. Thus, under this paragraph, only $200,000 
of the $450,000 contribution the employer made during its taxable year 
ending June 30, 1987, is deductible for such taxable year. If the excess 
were $450,000 or greater, no portion of the $450,000 contribution would 
be deductible by the employer for its taxable year ending June 30, 1987. 
Such nondeductible contributions are in excess of the fund's qualified 
cost for the taxable year related to the employer's taxable year and 
thus are deemed to be contributed on the first day of the employer's 
next taxable year.
    (c) See Q&A-7 of this regulation for special rules relating to the 
calculation of the qualified cost of a welfare

[[Page 746]]

benefit fund for an Initial Fund Year and an Overlap Fund Year (as 
defined in Q&A-7). See Q&A-11 of this regulation for special rules 
relating to the application of section 419 to the contribution to a 
welfare benefit fund of a facility (and to the contribution of other 
amounts, such as cash, used to acquire, construct, or improve a 
facility) before section 419 generally becomes effective with respect to 
contributions to the fund. See Sec. 1.419A-2T for special rules relating 
to certain collectively bargained welfare benefit funds.
    Q-6: What is the ``qualified direct cost'' of a welfare benefit fund 
under section 419(c)(3)?
    A-6: (a) Under section 419(c)(3), the ``qualified direct cost'' of a 
welfare benefit fund for any taxable year of the fund is the aggregate 
amount which would have been allowable as a deduction to the employer 
for benefits provided by such fund during such year (including insurance 
coverage for such year) if (1) such benefits were provided directly by 
the employer and (2) the employer used the cash receipts and 
disbursements method of accounting and had the same taxable year as the 
fund. In this regard, a benefit is treated as provided when such benefit 
would be includible in the gross income of the employee if provided 
directly by the employer (or would be so includible but for a provision 
of chapter 1, subtitle A, of the Internal Revenue Code excluding it from 
gross income). Thus, for example, if a calendar year welfare benefit 
fund pays an insurance company in July 1986 the full premium for 
coverage of its current employees under a term health insurance policy 
for the twelve month period ending June 30, 1987, the insurance coverage 
will be treated as provided by the fund over such twelve month period. 
Accordingly, only the portion of the premium for coverage during 1986 
will be treated as a ``qualified direct cost'' of the fund for 1986; the 
remaining portion of the premium will be treated as a ``qualified direct 
cost'' of the fund for 1987. The ``qualified direct cost'' for a taxable 
year of the fund includes the administrative expenses incurred by the 
welfare benefit fund in delivering the benefits for such year.
    (b) If, in a taxable year of a welfare benefit fund, the fund holds 
an asset with a useful life extending substantially beyond the end of 
the taxable year (e.g., buildings, vehicles, tangible assets, and 
licenses) and, for such taxable year of the fund, the asset is used in 
the provision of welfare benefits to employees, the ``qualified direct 
cost'' of the fund for such taxable year of the fund includes the amount 
that would have been allowable to the employer as a deduction under the 
applicable Code provisions (e.g., sections 168 and 179) with respect to 
the portion of the asset used in the provision of welfare benefits for 
such year if the employer had acquired and placed in service the asset 
at the same time the fund received and placed in service the asset, and 
the employer had the same taxable year as the fund. This rule applies 
regardless of whether the fund received the asset through a contribution 
of the asset by the employer or through an acquisition or the 
construction by the fund of the asset. For example, assume that in 1986 
a calendar year employer contributes recovery property under section 
168(c) to a welfare benefit fund with a calendar taxable year to be used 
in the provision of welfare benefits. The employer will be treated as 
having sold the property in such year and thus will recognize gain to 
the extent that the fair market value of the property exceeds the 
employer's adjusted basis in the property. In this regard, see section 
1239(d). Also, the employer will be treated as having made a 
contribution to the fund in such year equal to the fair market value of 
the property. Finally, the qualified direct cost of the welfare benefit 
fund for 1986 will include the amount that the employer could have 
deducted in 1986 with respect to the portion of the property used in the 
provision of welfare benefits if the employer had acquired the property 
in 1986 and had placed the property in service when the fund actually 
placed the property in service. Similarly, for example, assume that in 
1986 a welfare bendfit fund purchases and places in service a facility 
to be used in the provision of welfare benefits. The qualified direct 
cost of the fund for 1986 will include the amount that the employer 
could have deducted

[[Page 747]]

with respect to such facility if the employer had purchased and placed 
in service the facility at the same time that the fund purchased and 
placed in service the facility.
    (c) The qualified direct cost of a welfare benefit fund does not 
include expenditures by the fund that would not have been deductible if 
they had been made directly by the employer. For example, a fund's 
purchase of land in a year for an employee recreational facility will 
not be treated as a qualified direct cost because, if made directly by 
the employer, the purchase would not have been deductible under section 
263. See also sections 264 and 274.
    (d) Notwithstanding the preceding paragraphs, the qualified direct 
cost of a welfare benefit fund with respect to that portion of a child 
care facility used in the provision of welfare benefits for a year will 
include the amount that would have been allowable to the employer as a 
deduction for the year under a straight-line depreciation schedule for a 
period of 60 months beginning with the month in which the facility is 
placed in service under rules similar to those provided for section 188 
property under Sec. 1.188-1(a). For purposes of this section, a ``child 
care facility'' is tangible property of a character subject to 
depreciation that is located in the United States and specifically used 
as an integral part of a ``qualified child care center facility'' within 
the meaning of Sec. 1.188-1(d)(4).
    (e) See Q&A-7 of this regulation for special section 419 rules 
relating to the calculation of the qualified direct cost of a welfare 
benefit fund for an Initial Fund Year and an Overlap Fund Year (as 
defined in Q&A-7). See Q&A-11 of this regulation for special rules 
relating to the contribution to a welfare benefit fund of a facility 
(and to the contribution of other amounts, such as cash, used to 
acquire, construct, or improve a facility) before section 419 generally 
becomes effective with respect to contributions to the fund.
    Q-7: What special rules apply for purposes of determining the 
section 419 limit on the employer's deduction for contributions to a 
welfare benefit fund for the taxable year of the employer in which the 
fund is established and for the next following taxable year of the 
employer?
    A-7: (a) If the taxable year of a welfare benefit fund is the same 
as the taxable year of the employer, there are no special rules that 
apply for purposes of determining the section 419 limit on an employer's 
deduction for contributions to the fund for either the taxable year of 
the employer in which the fund is established or the next following 
taxable year of the employer. However, if the taxable year of a welfare 
benefit fund is different from the taxable year of the employer, the 
general section 419 rules are modified by the special rules set forth 
below for purposes of determining the section 419 deduction limit for 
the taxable year of the employer in which a fund is established and for 
the next following taxable year of the employer.
    (b) If a welfare benefit fund is established after December 31, 
1985, during a taxable year of an employer and either (i) the first 
taxable year of the fund ends after the close of such taxable year of 
the employer, or (ii) the first taxable year of the fund is six months 
or less and ends before the close of such taxable year of the employer 
and the second taxable year of the fund begins before and ends after the 
close of such taxable year of the employer, the taxable year of the fund 
that contains the closing day of such taxable year of the employer will 
be treated as an ``Overlap Fund Year.'' For purposes of determining the 
limit on the employer's deduction for contributions to a welfare benefit 
fund for the taxable year of the employer in which the fund was 
established, the period between the beginning of the fund's Overlap Fund 
Year and the end of the employer's taxable year in which the Overlap 
Fund Year began will be treated as a taxable year of the fund (``Initial 
Fund Year'').
    (c) The qualified cost of a welfare benefit fund for its Initial 
Fund Year will be equal to the qualified direct cost of the fund for 
such Initial Fund Year. The qualified cost of a fund for its Overlap 
Fund Year will be determined under the general rules of Q&A-5 of this 
regulation and section 419(c), with the exception that such qualfied 
cost will be reduced by the employer contributions made during the 
Initial

[[Page 748]]

Fund Year and deductible by the employer for the taxable year of the 
employer in which the Overlap Fund Year of the fund begins.
    (d) Assume that an employer with a calendar taxable year establishes 
on July 1, 1986, a welfare benefit fund with a taxable year ending on 
June 30. The fund's first taxable year from July 1, 1986, to June 30, 
1987, is an Overlap Fund Year. The employer contributes $1,000 to the 
fund during its taxable year ending December 31, 1986 (i.e., during the 
period between July 1, 1986, and December 31, 1986, which is also the 
Initial Fund Year) and another $1,500 to the fund during its taxable 
year ending December 31, 1987. Assume further that the qualified direct 
cost of the fund for the Initial Fund Year is $900 and that the 
qualified cost for the Overlap Fund Year is $2,500 (prior to the 
reduction required by paragraph (c) of this Q&A). Under the special 
rules of paragraphs (b) and (c), the employer may deduct $900 for its 
taxable year ending on December 31, 1986, and $1,600 for its taxable 
year ending on December 31, 1987. If the qualified direct cost of the 
fund for the Initial Fund Year had been $1,050 and the qualified cost 
for the Overlap Fund Year had been $2,500 (prior to the reduction 
required by paragraph (c) of this Q&A), the employer's deduction for its 
taxable year ending December 31, 1986, would have been $1,000 and its 
deduction for its taxable year ending December 31, 1987, would have been 
$1,500.
    (e) Assume that an employer with a calendar taxable year establishes 
on March 1, 1986, a welfare benefit fund with a taxable year ending June 
30. Thus, the fund has a short first taxable year ending June 30, 1986, 
an Overlap Fund Year from July 1, 1986, until June 30, 1987, and an 
ongoing June 30 taxable year. The employer contributes $1,750 to the 
fund during the employer's taxable year ending December 31, 1986--$750 
during the short first taxable year of the fund and $1,000 during the 
Initial Fund Year (i.e., the period between July 1, 1986, and December 
31, 1986)--and $1,500 to the fund during its taxable year ending 
December 31, 1987. Assume that the qualified cost of the fund for the 
short first taxable year of the fund is $800, the qualified direct cost 
for the Initial Fund Year is $900, and the qualified cost for the 
Overlap Fund Year is $2,500 (prior to the reduction required by 
paragraph (c) of this Q&A). Under the special rules of paragraphs (b) 
and (c), the employer may deduct $1,700 for its taxable year ending 
December 31, 1986, and $1,550 for its taxable year ending December 31, 
1987.
    Q-8: How does section 419 treat an employer's contribution with 
respect to a welfare benefit fund in excess of the applicable deduction 
limit for a taxable year of the employer?
    A-8: (a) If an employer makes contributions to a welfare benefit 
fund in a taxable year of the employer and such contributions (when 
combined with prior contributions that are deemed under the rule of this 
Q&A and section 419(d) to have been made in such taxable year) exceed 
the section 419 deduction limit for such taxable year of the employer, 
the excess amounts are deemed to be contributed to the fund on the first 
day of the next taxable year of the employer. Such deemed contributions 
are combined with amounts actually contributed by the employer to the 
fund during the next taxable year and may be deductible for such year, 
subject to the otherwise applicable section 419 deduction limit for such 
year.
    (b) Contributions to a welfare benefit fund on or before December 
31, 1985, that were not deductible by the employer for any taxable year 
of the employer ending on or before December 31, 1985, or for the first 
taxable year of the employer ending after December 31, 1985, as pre-1986 
contributions (see Q&A-9 of this regulation) are deemed to be 
contributed to the fund on January 1, 1986, However, see Q&A-11 of this 
regulation for special rules relating to the contribution to a welfare 
benefit fund of amounts (such as cash) used to acquire, construct, or 
improve a facility before section 419 generally becomes effective with 
respect to contributions to the fund. Generally, such contributions (to 
the extent that they were made after June 22, 1984 and on or before 
December 31, 1985) are treated as nondeductible pre-1986 contributions 
and are deemed to be contributed in the form of a facility at the same 
time

[[Page 749]]

as when the facility is placed in service by the fund.
    Q-9: How does an employer with a fiscal taxable year calculate its 
deduction limit for contributions with respect to a welfare benefit fund 
for the first taxable year of the employer ending after December 31, 
1985?
    A-9: (a) If the first taxable year of an employer ending after 
December 31, 1985 (or, if applicable under paragraph (b) of Q&A-2 of 
this section, the first taxable year of an employer beginning after 
termination of the last of the collective bargaining agreements pursuant 
to which the fund is maintained) is a fiscal year, the employer's 
deduction for such taxable year for contributions to a welfare benefit 
fund that is not a collectively bargained welfare benefit fund under 
Sec. 1.419A-2T is limited to the greater of the following two amounts: 
(1) The contributions paid to the fund during such first taxable year up 
to the qualified cost of the welfare benefit fund for the taxable year 
of the fund that relates to such taxable year of the employer, and (2) 
the contributions paid to the fund during the 1985 portion of such first 
taxable year of the employer (``the pre-1986 contributions'') to the 
extent that such pre-1986 contributions are deductible under the rules 
governing the deduction of such contributions before section 419 
generally becomes effective (including the rules set forth in Q&A-10 of 
this regulation, modified for purposes of this Q&A-9 by substituting 
``December 31, 1986'' for ``December 31, 1985'' in paragraph (c)). See 
Q&A-11 of this regulation for special rules relating to the contribution 
to a welfare benefit fund of a facility (and to the contribution of 
other amounts, such as cash, used to acquire, construct, or improve such 
a facility) before section 419 generally becomes effective with respect 
to contributions to such fund.
    (b) For example, assume that an employer with a taxable year ending 
June 30, contributes to a welfare benefit fund with a taxable year 
ending January 31. This employer contributes $1,000 to the fund between 
July 1, 1985, and December 31, 1985, and an additional $500 to the fund 
between January 1, 1986, and June 30, 1986. Assume further that the 
qualified direct cost of the fund for the taxable year of the fund 
ending January 31, 1986, is $500 and that the qualified cost for such 
taxable year is $800. Under the deduction rule set forth above, the 
employer's deduction for its taxable year ending June 30, 1986, is the 
greater of two amounts: (1) The contributions made during such full 
taxable year ($1,500) up to the qualifed cost of the fund with respect 
to such taxable year ($800), and (2) the pre-1986 contributions ($1,000) 
to the extent that such pre-1986 contributions are deductible under the 
pre-section 419 rules. In determining the extent to which the pre-1986 
contributions are deductible under the pre-section 419 rules, the rules 
contained in Q&A-10 apply as though December 31, 1985, in paragraph (c) 
were December 31, 1986. Assuming that only $875 is deductible under the 
pre-section 419 rules, because $875 is greater than $800, this employer 
may deduct $875 for its first taxable year ending after December 31, 
1985. This full $875 deduction for 1985 is deemed to consist entirely of 
pre-1986 contributions.
    Q-10: How do the rules of sections 263, 446(b), 461(a), and 461(h) 
apply in determining whether contributions with respect to a welfare 
benefit fund are deductible for a taxable year?
    A-10: (a) Both before and after the effective date of section 419 
(see Q&A-2 of this regulation), an employer is allowed a deduction for 
taxable year for contributions paid or accrued with respect to a 
``welfare benefit fund'' (as defined in Q&A-3 of this regulation and 
section 419(e)) only to the extent that such contributions satisfy the 
requirements of section 162 or 212. These requirements must be satisfied 
after the effective date of section 419 because 419 requires that (among 
other requirements) contributions to a welfare benefit fund satisfy the 
requirements of section 162 or 212.
    (b) Except as provided in paragraphs (c) and (d), in determinig the 
extent to which contributions paid or accrued with respect to welfare 
benefit fund satisfy the requirements of section 162 or 212 for a 
taxable year (both before and after section 419 generally becomes 
effective with respect to such contributions), the rules of sections 
263, 446(b), 461(a) (including the rules that relate

[[Page 750]]

to the creation of an asset with a useful life extending substantially 
beyond the close of the taxable year), and 461(h) (to the extent that 
such section is effective with respect to such contributions) are are 
generally applicable.
    (c) Notwithstanding paragraph (b), under the authority of section 
7805(b), the rules of sections 263, 446(b), and 461(a) shall not be 
applied in determining the extent to which an employer's contribution 
with respect to a welfare benefit fund is deductible under section 162 
or 212 with respect to any taxable year of the employer ending on or 
before December 31, 1985, to the extent that, for such taxable year, (1) 
the contribution was made pursuant to a bona fide collective bargaining 
agreement requiring fixed and determinable contributions to a 
collectively bargained welfare benefit fund (as defined in Sec. 1.419A-
2T), or (2) the contribution was not in excess of the amount deductible 
under the principles of Revenue Rulings 69-382, 1969-2 C.B. 28; 69-478, 
1969-2 C.B. 29; and 73-599, 1973-2 C.B. 40, modified as appropriate for 
benefits for active employees.
    (d) Notwithstanding paragraph (b), in determining the extent to 
which contributions paid or accrued with respect to a welfare benefit 
fund are deductible under section 419, the rules of sections 263, 
446(b), and 461(a) will be treated as having been satisfied to the 
extent that such contributions satisfy the otherwise applicable rules of 
section 419. Thus, for example, contributions to a welfare benefit fund 
will not fail to be deductible under section 419 merely because they 
create an asset with a useful life extending substantially beyoud the 
close of the taxable year if such contributions satisfy the otherwise 
applicable requirements of section 419.
    (e) In determining the extent to which contributions with respect to 
a welfare benefit fund satisfy the requirements of section 461(h) for 
any taxable year for which section 461(h) is effective, pursuant to the 
authority under section 461(h)(2), economic performance occurs as 
contributions to the welfare benefit fund are made. Solely for purposes 
of section 461(h), in the case of an employer's taxable year ending on 
or after July 18, 1984, and on or before March 21, 1986, contributions 
made to the welfare benefit fund after the end of such taxable year and 
on or before March 21, 1986 shall be deemed to have been made on the 
last day of such taxable year.
    Q-11: What special section 419 rules apply to the payment or accrual 
with respect to a welfare benefit fund of a facility (and the payment or 
accrual of other amounts, such as cash, used to acquire, construct, or 
improve such a facility)?
    A-11: (a)(1) In the case of an employer's payment or accrual with 
respect to a welfare benefit fund after June 22, 1984, and on or before 
December 31, 1985 (or, if applicable under paragraph (b) of Q&A-2 of 
this regulation, before section 419 generally becomes effective with 
respect to contributions to such fund), of a facility, the rules of 
section 419, Sec. 1.419-1T, and Sec. 1.419A-2T generally apply to 
determine the extent to which such contribution is deductible by the 
employer for its taxable year of contribution. For this purpose, 
however, the facility is to be treated as the only contribution made to 
the fund and the qualified cost of the fund for the taxable year of the 
fund in which the facility was contributed is to be equal to the 
qualified direct cost directly attributable to the facility (as 
determined under Q&A-6 of this regulation). Also, for this purpose, the 
welfare benefit fund to which the facility was contributed may not be 
aggregated with any other fund. For purposes of this Q&A, ``facility'' 
means any tangible asset with a useful life extending substantially 
beyond the end of the taxable year (e.g., vehicles, buildings) and any 
intangible asset (e.g., licenses) related to a tangible asset, whether 
or not such asset is used in the provision of welfare benefits. See, 
however, paragraph (c) of Q&A-2 of this regulation for a binding 
contract exception.
    (2) For example, assume that an employer and a welfare benefit fund 
each has a calendar taxable year and that, during 1985, the employer 
contributes to the fund $200,000 in cash and a facility with a fair 
market value of $100,000. Such facility is used in the provision of 
welfare benefits under the fund. The employer is treated as having sold 
the

[[Page 751]]

facility in such year and thus will recognize gain to the extent that 
the fair market value of the facility exceeds the employer's adjusted 
basis in the facility. In this regard, see section 1239(d). The extent 
to which the facility contribution is deductible by the employer for its 
1985 taxable year is determined as though it were the only contribution 
made by the employer to the fund during such year and the qualified cost 
of the fund for the taxable year of the fund in which the contribution 
was made (i.e., the 1985 taxable year) were equal to the amount that 
would have been allowable to the employer as a deduction for such year 
under the applicable Code provisions with respect to the portion of the 
facility used in the provision of welfare benefits for such year if the 
employer had placed in service the facility at the time the fund placed 
in service the facility and if the employer had the same taxable year as 
the fund. If, under these assumptions, the employer would have been 
allowed a $10,000 deduction with respect to the facility for the 1985 
taxable year, the fund's qualified cost for its 1985 taxable year would 
be only $10,000. Thus, only $10,000 of the $100,000 facility 
contribution would be deductible by the employer for its 1985 taxable 
year (i.e., the taxable year of the employer with or within which the 
applicable taxable year of the fund ends). However, in determining the 
extent to which the $200,000 in cash is deductible by the employer for 
its 1985 taxable year, the $100,000 facility is not to be disregarded. 
Thus, if under the applicable pre-section 419 rules the employer is 
allowed for 1985 a total deduction of only $175,000, the employer would 
be permitted a deduction for 1985 of $175,000 ($10,000 with respect to 
the facility and $165,000 of the cash contribution). The nondeductible 
portion of the cash contribution is to be treated as contributed to the 
fund on the first day of the next taxable year of the employer. If under 
the applicable pre-section 419 rules the employer were allowed a total 
deduction of $300,000 for 1985, the employer would be permitted a 
deduction for 1985 of only $210,000 ($10,000 with respect to the 
facility and the full $200,000 cash contribution).
    (3) For example, assume that an employer has a June 30 taxable year 
and maintains a welfare benefit fund with a taxable year ending January 
31. During the 1985 portion of its taxable year ending June 30, 1986, 
the employer contributes $50,000 in cash and a facility with a fair 
market value of $100,000; and during the 1986 portion of such taxable 
year, the employer contributes another $75,000 in cash to the fund. The 
facility is used in the provision of welfare benefits under the fund. 
Under the rules of Q&A-9 of this regulation, the employer's deduction 
for its June 30, 1986, taxable year is limited to the greater of the 
following two amounts: (i) The contributions paid to the fund during 
such taxable year ($225,000) up to the qualified cost of the fund for 
the taxable year of the fund ending January 31, 1986, and (ii) the 
contributions paid to the fund during the 1985 portion of the employer's 
taxable year ending June 30, 1986 (``the pre-1986 contributions'') 
($150,000) to the extent that such pre-1986 contributions are deductible 
under the rules governing the deduction of such contributions before 
section 419 is generally effective with respect to the fund. For 
purposes of this rule, the contribution of the facility on or before 
December 31, 1985, is to be treated as a pre-1986 contribution and the 
rules of section 419 and this Q&A are to be treated as rules governing 
the deduction of such contribution before section 419 generally becomes 
effective with respect to the fund. Thus, in determining the extent to 
which the facility is deductible as a pre-1986 contribution under the 
rules before section 419 generally becomes effective, the facility is 
treated as the only contribution to the welfare benefit fund and the 
qualified cost of such fund for the taxable year of the fund in which 
the facility was contributed is the amount that would have been 
allowable to the employer as a deduction with respect to the portion of 
the facility used in the provision of welfare benefits if the employer 
had placed in service the facility at the same time that the fund placed 
in service the facility and the employer's taxable year ended on January 
31, 1986.
    (b)(1) The preceding rules shall also apply for purposes of 
determining when and the extent to which an employer

[[Page 752]]

may deduct contributions or other items and amounts after June 22, 1984 
and on or before December 31, 1985 (or, if applicable under paragraph 
(b) of Q&A-2 of this regulation, before section 419 generally becomes 
effective with respect to contributions to the fund) that are not 
facilities (e.g., cash contributions) to a welfare benefit fund that are 
used by the fund to acquire, construct, or improve a facility. The most 
recent non-facility contributions made to a welfare benefit fund before 
the facility in question is placed in service by the fund (up to the 
fair market value of the facility at such time) are to be treated as 
used by the fund for the acquisition, construction, or improvement (as 
the case may be) of such facility. To the extent that contributions 
before such a facility is placed in service are not at least equal to 
the value of the facility at such time, contributions after such date 
(up to the value of the facility at the time it is placed in service) 
are treated as used for acquisition, construction, or improvement of the 
facility. Such non-facility contributions, to the extent that they were 
made after June 22, 1984, and on or before December 31, 1985 (or, if 
applicable under paragraph (b) of Q&A-2 of this regulation, before 
section 419 generally becomes effective with respect to contributions to 
the fund), are not deductible by the employer as non-facility 
contributions for any year. Instead, the employer is permitted a 
deduction with respect to such contributions only under the rules of 
this Q&A as though the employer had contributed a facility to the fund 
at the same time that the fund placed in service the facility in 
question and, at such time, the facility had a fair market value equal 
to the total of such non-facility contributions.
    (2) For example, assume that an employer and a welfare benefit fund 
each has a calendar taxable year and during 1985 the fund acquired and 
placed in service a facility with a fair market value of $100,000 to be 
used in the provision of welfare benefits. Further, during July 1984 the 
employer contributed $150,000 in cash to the fund and, during the 
portion of 1985, before the facility was placed in service by the fund, 
the employer contributed another $75,000 in cash to the fund; during the 
remaining portion of 1985, the employer contributed $125,000 in cash. 
The facility is used in the provision of welfare benefits under the 
fund. Because $25,000 of the employer's 1984 contribution is treated 
under this rule as used for the acquisition of a facility, such $25,000 
is not deductible by the employer for 1984. For purposes of determining 
the employer's deduction for 1985, the employer will be treated as 
having contributed $125,000 in cash and a facility with a fair market 
value of $100,000. The employer's deduction for its 1985 taxable year 
will be determined under the rules relating to the contribution of a 
facility after June 22, 1984, and on or before December 31, 1985.
    (3) For example, assume that an employer and a welfare benefit fund 
each has a calendar taxable year and during 1986 the fund placed in 
service a facility with a fair market value of $100,000 to be used in 
the provision of welfare benefits. During 1985, the employer contributed 
$125,000 in cash to the fund. During the portion of 1986 before the 
facility was placed in service, the employer contributed $60,000 in 
cash, and during the remaining portion of 1986, the employer contributed 
another $75,000 in cash. The facility is used in the provision of 
welfare benefits under the fund. Because $40,000 of its 1985 cash 
contribution is treated under this rule as used for the acquisition of 
the facility, such $40,000 is not deductible by the employer for 1985. 
For purposes of determining the employer's deduction for 1986, the 
employer will be treated as though it had contributed a $40,000 facility 
to the fund at the time the fund placed the facility in service.
    (c) For purposes of calculating the ``existing excess reserve 
amount'' under Q&A-1 of Sec. 1.419A-1T and the ``existing reserves for 
post-retirement medical or life insurance benefits'' under Q&A-4 of 
Sec. 1.512(a)-5T (but not the exempt function income under Q&A-3 of 
Sec. 1.512(a)-5T), the amount set aside as of any applicable date is to 
be reduced to the extent that contributions originally included in such 
amount are subsequently treated under this Q&A as used for the 
acquisition, construction, or improvement of an asset excluded from the 
calculation of

[[Page 753]]

the total amount set aside under paragraph (b) of Sec. 1.512(a)-5T (or 
would be so treated under this Q&A if it applied to such asset). The 
reduction required under this paragraph applies for purposes of 
calculating the ``existing excess reserve amount'' and the ``existing 
reserves for post-retirement medical or life insurance benefits'' for 
all taxable years of the welfare benefit fund.

[T.D. 8073, 51 FR 4323, Feb. 4, 1986; 51 FR 7262, Mar. 3, 1986; 51 FR 
11303, Apr. 2, 1986]



Sec. 1.419A-1T  Qualified asset account limitation of additions to account. (Temporary)

    Q-1: What does the transition rule under section 419A(f)(7) provide?
    A-1: Section 419A(f)(7) provides that, in the case of a welfare 
benefit fund that was in existence on July 18, 1984, the account limit 
(as determined under section 419A(c)) for each of the first four taxable 
years of the fund that relate to taxable years of the employer ending 
after December 31, 1985 (or, if applicable under paragraph (b) of Q&A-2 
of Sec. 1.419-1T, taxable years of the employer beginning after the 
termination of the last of the collective bargaining agreements pursuant 
to which the plan is maintained) shall be increased by the following 
percentages of the ``existing excess reserve amount'':

                                                                        
                                                                 Percent
                                                                        
First taxable year............................................        80
Second taxable year...........................................        60
Third taxable year............................................        40
Fourth taxable year...........................................        20
                                                                        

    For purposes of this section, the ``existing excess reserve amount'' 
for any taxable year of a fund is the excess of (a) the assets actually 
set aside for purposes described in section 419A(a) at the close of the 
first taxable year of the fund ending after July 18, 1984 (calculated in 
the manner set forth in Q&A-3 of Sec. 1.512(a)-3T, and adjusted under 
paragraph (c) of Q&A-11 of Sec. 1.419-1T), reduced by employer 
contributions to the fund before the close of such first taxable year to 
the extent that such contributions are not deductible for the taxable 
year of the employer with or within which such taxable year of the fund 
ends and for any prior taxable year of the employer, over (b) the 
account limit which would have applied to the taxable year of the fund 
for which the excess is being computed (without regard to this 
transition rule). A welfare benefit fund is treated as in existence on 
July 18, 1984, for purposes of this transition rule only if amounts were 
actually set aside in such fund on such date to provide welfare benefits 
enumerated under section 419A.

[T.D. 8073, 51 FR 4329, Feb. 4, 1986, as amended at 51 FR 11303, Apr. 2, 
1986]



Sec. 1.419A-2T  Qualified asset account limitation for collectively bargained funds. (Temporary)

    Q-1: What account limits apply to welfare benefit funds that are 
maintained pursuant to a collective bargaining agreement?
    A-1: Contributions to a welfare benefit fund maintained pursuant to 
one or more collective bargaining agreements and the reserves of such a 
fund generally are subject to the rules of sections 419, 419A, and 512. 
However, neither contributions to nor reserves of such a collectively 
bargained welfare benefit fund shall be treated as exceeding the 
otherwise applicable limits of section 419(b), 419A(b), or 512(a)(3)(E) 
until the earlier of: (i) The date on which the last of the collective 
bargaining agreements relating to the fund in effect on, or ratified on 
or before, the date of issuance of final regulations concerning such 
limits for collectively bargained welfare benefit funds terminates 
(determined without regard to any extension thereof agreed to after the 
date of issuance of such final regulations), or (ii) the date 3 years 
after the issuance of such final regulations.
    Q-2: What is a welfare benefit fund maintained pursuant to a 
collective bargaining agreement for purposes of Q&A-1?
    A-2: (1) For purposes of Q&A-1, a collectively bargained welfare 
benefit fund is a welfare benefit fund that is maintained pursuant to an 
agreement which the Secretary of Labor determines to be a collective 
bargaining agreement and which meets the requirements of the Secretary 
of the Treasury as set forth in paragraph 2 below.

[[Page 754]]

    (2) Notwithstanding a determination by the Secretary of Labor that 
an agreement is a collective bargaining agreement, a welfare benefit 
fund is considered to be maintained pursuant to a collective bargaining 
agreement only if the benefits provided through the fund were the 
subject of arms-length negotiations between employee representatives and 
one or more employers, and if such agreement between employee 
representatives and one or more employers satisfies section 7701(a)(46) 
of the Code. Moreover, the circumstances surrounding a collective 
bargaining agreement must evidence good faith bargaining between adverse 
parties over the welfare benefits to be provided through the fund. 
Finally, a welfare benefit fund is not considered to be maintained 
pursuant to a collective bargaining agreement unless at least 50 percent 
of the employees eligible to receive benefits under the fund are covered 
by the collective bargaining agreement.
    (3) In the case of a collectively bargained welfare benefit fund, 
only the portion of the fund (as determined under allocation rules to be 
provided by the Commissioner) attributable to employees covered by a 
collective bargaining agreement, and from which benefits for such 
employees are provided, is considered to be maintained pursuant to a 
collective bargaining agreement.
    (4) Notwithstanding the preceding paragraphs and pending the 
issuance of regulations setting account limits for collectively 
bargained welfare benefit funds, a welfare benefit fund will not be 
treated as a collectively bargained welfare benefit fund for purposes of 
Q&A-1 if and when, after July 1, 1985, the number of employees who are 
not covered by a collective bargaining agreement and are eligible to 
receive benefits under the fund increases by reason of an amendment, 
merger, or other action of the employer or the fund. In addition, 
pending the issuance of such regulations, for purposes of applying the 
50 percent test of paragraph (2) to a welfare benefit fund that is not 
in existence on July 1, 1985, ``90 percent'' shall be substituted for 
``50 percent''.

[T.D. 8034, 50 FR 27428, July 3, 1985]

                          Certain Stock Options



Sec. 1.421-1   Effective dates and meaning and use of certain terms.

    (a) Option. (1) For the purpose of section 421, the term ``option'' 
includes the right or privilege of an individual to purchase stock from 
a corporation by virtue of an offer of the corporation continuing for a 
stated period of time, whether or not irrevocable, to sell such stock at 
a price determined under paragraph (d) of this section, such individual 
being under no obligation to purchase. Such right or privilege, when 
granted, must be evidenced in writing. The individual who has such right 
or privilege is referred to as the optionee and the corporation offering 
to sell stock under such an arrangement is referred to as the optionor. 
While no particular form of words is necessary, the written option 
should express, among other things, an offer to sell at the option price 
and the period of time during which the offer shall remain open.
    (2) An option may be granted as part of or in conjunction with an 
employee stock purchase plan or subscription contract.
    (3) An arrangement between a corporation and an employee may involve 
more than one option. For example, if a corporation on June 1, 1954, 
grants to an employee the right to purchase 1,000 shares of its stock on 
or after June 1, 1955, another 1,000 shares on or after June 1, 1956, 
and a further 1,000 shares on or after June 1, 1957, all shares to be 
purchased before June 1, 1958, provided the employee at the time of 
exercise of any of the purchase rights is employed by the corporation, 
such an arrangement will be construed as the grant to the employee on 
June 1, 1954, of three options, each for the purchase of 1,000 shares. 
Similarly, if a corporation grants to an employee on January 1, 1955, 
the right to purchase 1,000 shares of its stock at $85 per share during 
1955, or at $75 per share during 1956, or at $65 per share during 1957, 
such an arrangement will be construed as the grant to the employee on 
January 1, 1955, of three alternative options, one option for the 
purchase of 1,000 shares at $85 per share during 1955, an alternative 
option for the purchase of 1,000 shares at $75 per share during 1956, 
and a third

[[Page 755]]

alternative option for the purchase of 1,000 shares at $65 per share 
during 1957.
    (b) Time and date of granting of option. (1) For the purpose of 
section 421, the words ``the date of the granting of the option'' and 
``the time such option is granted'', and similar phrases refer to the 
date or time when the corporation completes the corporate action 
constituting an offer of stock for sale to an individual under the terms 
and conditions of a restricted stock option. Ordinarily, if the 
corporate action contemplates an immediate offer of stock for sale to an 
individual or to a class including such individual, or contemplates a 
particular date on which such offer is to be made, the time or date of 
the granting of the option is the time or date of such corporate action 
if the offer is to be made immediately, or the date contemplated as the 
date of the offer, as the case may be. However, an unreasonable delay in 
the giving of notice of such offer to the individual or to the class 
will be taken into account as indicating that the corporation 
contemplated that the offer was to be made at the subsequent date on 
which such notice is given.
    (2) If the corporation imposes conditions on the granting of an 
option (as distinguished from conditions governing the exercise of the 
option), such conditions shall be given effect in accordance with the 
intent of the corporation. A special rule is provided by section 
421(d)(5) for options subject to stockholder approval. If the grant of 
an option is subject to approval by stockholders, the date of grant of 
the option shall be determined as if the option had not been subject to 
such approval. A condition which does not require corporate action, such 
as the approval of some regulatory or governmental agency, for example, 
a stock exchange or the Securities and Exchange Commission, is 
ordinarily considered a condition upon the exercise of the option unless 
the corporate action clearly indicates that the option is not to be 
granted until such condition is satisfied. If an option is granted to an 
individual upon the condition that such individual will become an 
employee of the corporation granting the option or of its parent or 
subsidiary corporation, such option is not granted prior to the date the 
individual becomes such an employee.
    (3) In general, conditions imposed upon the exercise of an option 
will not operate to make ineffective the granting of the option. For 
example, on June 1, 1954, the A Corporation grants to X, an employee, an 
option to purchase 5,000 shares of the corporation stock, exercisable by 
X on or after June 1, 1955, provided he is employed by the corporation 
on June 1, 1955. Such an option is granted to X on June 1, 1954.
    (c) Stock. For the purpose of section 421, the term ``stock'' means 
capital stock of any class, including voting or nonvoting common or 
preferred stock. The term includes both treasury stock and stock of 
original issue. Special classes of stock authorized to be issued to and 
held by employees are within the scope of the term ``stock'' as used in 
section 421, provided such stock otherwise possesses the rights and 
characteristics of capital stock.
    (d) Option price. (1) For the purpose of section 421, the term 
``option price'' or ``price paid under the option'' means the 
consideration in money or property which, pursuant to the terms of the 
option, is the price at which the stock subject to the option is 
purchased.
    (2) (i) With respect to its option price, a restricted stock option 
must, when granted, meet either of the following requirements:
    (A) The option price must be fixed or determinable at the time the 
option is granted; or
    (B) In the case of an option exercised during any taxable year of 
the optionee which begins after December 31, 1953, and ends after August 
16, 1954, the option price must be determinable under a variable price 
option as defined in subdivision (ii) of this subparagraph.

An option which does not meet the requirements of either (A) or (B) of 
this subdivision when granted will not be treated as a restricted stock 
option unless it is subsequently changed to meet such requirements. In 
case of such a change, see paragraph (c)(2) of Sec. 1.421-4.
    (ii)(A) The term ``variable price option'' means an option under 
which the option price is determined by a formula in which the only 
variable is the fair market value of the stock at any time during a 
period of six consecutive

[[Page 756]]

months which includes the day on which such option is exercised. Except 
as provided in (b) of this subdivision, such formula may provide for 
determining such price by reference to such value on any particular day 
in such 6-month period, or by reference to an average value of the stock 
over either the whole of such 6-month period or over any shorter period 
included in such 6-month period. Such 6-month period may begin with, end 
with, or in any other manner span the day on which such option is 
exercised. Such formula may also depend upon factors other than such 
value of the stock, but such other factors must not be variable and must 
be fixed in the option when granted. For example, such formula may 
provide that the option price shall be 85 percent of the value of the 
stock on the day the option is exercised, but such price shall not be 
less than $85, nor more than $110. Another example of a formula which 
meets the requirements of this subdivision is a provision that the 
option price shall be 95 percent of the fair market value of the stock 
on the day the option is exercised but not more than $95. However, the 
requirements of this subdivision are not met by a formula which provides 
that if the profits of the employer for the year do not exceed $100,000, 
the option price shall be $15 under the fair market value of the stock 
at the time the option is exercised, but if such profits exceed 
$100,000, the option price shall be $20 under such value of the stock. 
For an example of how to determine whether an option which contains a 
formula meeting the requirements of this subdivision also meets the 
requirement that the option price must be at least 85 percent of the 
fair market value of the stock at the time the option is granted, see 
paragraph (a)(1) of Sec. 1.421-2.
    (B) In the case of an option granted after September 30, 1958, the 
term ``variable price option'' does not include any option in which the 
formula provides for determining the option price by reference to the 
fair market value of the stock at any time before the option is 
exercised if such value may be greater than the average fair market 
value of the stock during the calendar month in which the option is 
exercised. Whether an option meets the requirement of this subdivision 
shall be determined solely by reference to the terms of the option, and 
the circumstances existing at the time the option is granted or 
exercised are immaterial. Thus, an option, granted after September 30, 
1958, and containing a pricing formula which takes into consideration 
the value of the stock at any time before the option is exercised, is 
subject to the new limitation and does not meet the requirement of this 
subdivision, even though the option price is not actually based upon 
such prior fair market value either at the time the option is exercised 
or at the time the option price is computed as if it were exercised for 
the purpose of applying the 85 percent test of section 421(d)(1)(A). For 
example, a formula which provides that the option price is to be 45 
percent of the fair market value of the stock 30 days before the date on 
which the option is exercised, but not more than $85, will not qualify 
under this subdivision since under this formula the price may be 
determinable by reference to a higher prior value. On the other hand, a 
formula which provides that the option price is to be 90 percent of the 
average value of the stock during the month the option is exercised or 
the average value of the stock during the preceding month, whichever is 
lower, will qualify. In the case of an option granted after September 
30, 1958, the only way that a formula which provides for determining the 
option price by reference to the fair market value of the stock at a 
time before the option is exercised can come within the requirement of 
this subdivision is to provide that the option price is to be determined 
by reference to such fair market value only if such fair market value is 
not greater than the average fair market value of the stock during the 
month in which the option is exercised. If under the terms of an option 
the price is to be determined by reference to the fair market value of 
the stock at a time before the option is exercised, whether such value 
is higher or lower than the average fair market value of the stock 
during the month the option is exercised, such option will not be 
considered a restricted stock option since the option price

[[Page 757]]

may be based upon the prior value of the stock when such value exceeds 
the average fair market value of the stock during the month the option 
is exercised. However, if an option provides for determining the option 
price by reference to a prior fair market value of the stock only when 
such value is lower than such average value of the stock, such option 
can qualify as a restricted stock option. The average fair market value 
of the stock during the month in which the option is exercised means 
such value during the calendar month the option is exercised and not 
merely during a 30- or 31-day period including the time the option is 
exercised. To compute the average fair market value of the stock for the 
month, it will be necessary to ascertain the fair market value of the 
stock for each day during the month, including those days which are not 
business days. In ascertaining the fair market value of the stock for 
each day, the generally accepted principles for ascertaining such value 
will be applied.
    (e) Exercise. For the purpose of section 421, the term ``exercise'', 
when used in reference to an option, means the act of acceptance by the 
optionee of the offer to sell contained in the option. In general, the 
time of exercise is the time when there is a sale or a contract to sell 
between the corporation and the individual. An agreement or undertaking 
by the employee to make payments under a stock purchase plan does not 
constitute the exercise of an option so long as the payments made remain 
subject to withdrawal by the employee.
    (f) Transfer. For the purpose of section 421, the term ``transfer'', 
when used in reference to the transfer to an individual of a share of 
stock pursuant to his exercise of a restricted stock option, means the 
transfer of ownership of such share, or the transfer of substantially 
all the rights of ownership. Such transfer must, within a reasonable 
time, be evidenced on the books of the corporation.
    (g) Effective dates. Sections 1.421-1 through 1.421-5 are applicable 
only to options granted after February 26, 1945, and before January 1, 
1964, and all references therein to sections of the Code are to the 
Internal Revenue Code of 1954, before the amendments made by section 221 
of the Revenue Act of 1964 (78 Stat. 63). Section 1.421-6 is applicable 
only to options granted on or after February 26, 1945, and all 
references to sections of the Code are to the Internal Revenue Code of 
1954, as amended. Sections 1.421-7 and 1.421-8 are applicable only to 
options granted after December 31, 1963, and all references therein to 
sections of the Code are to the Internal Revenue Code of 1954, as 
amended.

[T.D. 6500, 25 FR 11692, Nov. 26, 1960, as amended by T.D. 6527, 26 FR 
410, Jan. 19, 1961, T.D. 6887, 31 FR 8786, June 24, 1966]



Sec. 1.421-2   Restricted stock option.

    (a) In general. (1) A ``restricted stock option'' is an option 
granted after February 26, 1945, to an individual, for any reason 
connected with his employment by a corporation, if granted by the 
employer corporation or its parent or subsidiary corporation, to 
purchase stock of any of such corporations, but, except in the case of 
options described in subparagraph (2) of this paragraph, only if--
    (i) At the time such option is granted the option price is at least 
85 percent of the fair market value at such time of the stock subject to 
the option; and
    (ii) Such option by its terms is not transferable by such individual 
otherwise than by will or by the laws of descent and distribution, and 
is exercisable, during his lifetime, only by him; and
    (iii) Such individual, at the time the option is granted, does not 
own stock possessing more than 10 percent of the total combined voting 
power of all classes of stock either of the employer corporation or of 
its parent or subsidiary corporation; and
    (iv) In the case of options granted after June 21, 1954, such option 
by its terms is not exercisable after the expiration of ten years from 
the date on which such option was granted.

For the purpose of applying the rule of subdivision (i) of this 
subparagraph if the option price is determined by a formula described in 
paragraph (d)(2)(ii) of Sec. 1.421-1, the option price shall, 
notwithstanding any provision of the option, be computed as if such 
option is

[[Page 758]]

exercised on the day when it is granted. For example, if on June 15, 
1959, an option is granted providing that the option price shall be $10 
under the average fair market value of the stock during the month in 
which the option is exercised or the average fair market value of the 
stock during the preceding month, whichever is lower, and if on June 15, 
1959, the value of the stock subject to the option is $100 a share, to 
determine if the option meets the requirement of subdivision (i) of this 
subparagraph, it is necessary to determine the average fair market value 
of the stock during the months of May and June 1959. If such lower 
average fair market value is $95 or more, the option meets the 
requirement of subdivision (i) of this subparagraph.
    (2) Regardless of the extent to which the individual to whom the 
option is granted owns stock of either the employer corporation, or of 
its parent or subsidiary corporation, an option is a restricted stock 
option if--
    (i) Such option is granted after February 26, 1945, to such 
individual, for any reason connected with his employment by a 
corporation, if granted by the employer corporation or its parent or 
subsidiary corporation, to purchase stock of any of such corporations; 
and
    (ii) At the time such option is granted the option price is at least 
110 percent of the fair market value at such time of the stock subject 
to the option; and
    (iii) Such option by its terms is not transferable by such 
individual otherwise than by will or by the laws of descent and 
distribution, and is exercisable, during his lifetime, only by him; and
    (iv) Such option by its terms is not exercisable after the 
expiration of five years from the date on which such option was granted, 
or such option is exercised before August 17, 1955.
    (3) At the time the option is granted, the relationship between the 
individual to whom an option is granted and the corporation granting the 
option (or a corporation which is a parent or subsidiary thereof) must 
be the legal and bona fide relationship of employer and employee. For 
rules applicable to the determination whether the employer-employee 
relationship exists, see section 3401(c) and the regulations thereunder. 
An option granted before employment or after termination of employment 
is not a restricted stock option. As to the granting of an option 
conditioned upon employment, see paragraph (b)(2) of Sec. 1.421-1. The 
option must be granted for a reason connected with the individual's 
employment by the corporation or by its parent or subsidiary 
corporation.
    (4) An option may qualify as a restricted stock option only if, 
under the terms of the option, it is not transferable (other than by 
will or by the laws of descent and distribution) by the individual to 
whom it is granted, and is exercisable, during the lifetime of such 
individual, only by him. Accordingly, an option which is transferable by 
the individual to whom it is granted during his lifetime, or is 
exercisable during such individual's lifetime by another person, is not 
a restricted stock option. However, in case the option contains a 
provision permitting the individual to whom the option was granted to 
designate the person who may exercise the option after his death, 
neither such provision, nor a designation pursuant to such provision, 
disqualifies the option as a restricted stock option.
    (5) Any reasonable valuation methods may be used for the purpose of 
determining whether at the time the option is granted the option price 
is at least 85 percent of the fair market value at such time of the 
stock subject to the option. Such methods include the valuation methods 
described in Sec. 20.2031-2 of this chapter (Estate Tax Regulations).
    (b) Ownership of 10 percent of stock. In determining the amount of 
stock owned by an individual, for the purpose of applying the 10 percent 
test of section 421(d)(1)(C), stock of the employer corporation or of 
its parent or subsidiary owned (directly or indirectly) by or for such 
individual's brothers and sisters (whether by the whole or half blood), 
spouse, ancestors, and lineal descendants, shall be considered as owned 
by such individual. Also, for such purpose, if a domestic or foreign 
corporation, partnership, estate, or trust owns (directly or indirectly) 
stock of the employer corporation or of its parent or subsidiary, such 
stock shall be considered as being owned proportionately by

[[Page 759]]

or for the shareholders, partners, or beneficiaries of the corporation, 
partnership, estate, or trust.

[T.D. 6500, 25 FR 11693, Nov. 26, 1960, as amended by T.D. 6527, 26 FR 
411, Jan. 19, 1961]



Sec. 1.421-3   Exercise of restricted stock option.

    (a) The special rules of income tax treatment provided in section 
421(a) and (b) are applicable only if the following conditions exist 
with respect to the transfer of a share of stock to an individual:
    (1) The share of stock is transferred to the individual pursuant to 
his exercise after 1949 of a restricted stock option; and
    (2) At the time the option is exercised by him, the individual is an 
employee of the corporation granting such option (or parent or 
subsidiary thereof), or of a corporation (or parent or subsidiary 
thereof) which issued or assumed the option under section 421(g) (see 
paragraph (d) of Sec. 1.421-4), or was an employee of any such 
corporations within three months before the date the option is 
exercised.
    (b)(1) Section 421 is applicable to the exercise of a restricted 
stock option only if at the time the individual exercises the option he 
is a bona fide employee of the corporation granting the option, or of a 
corporation which is at the time the option is exercised a parent or 
subsidiary of such corporation, unless the old option has been assumed 
or a new option has been issued in its place under section 421(g). See 
paragraph (d) of Sec. 1.421-4. In case of such an assumption of the old 
option or such issuance of a new option, the individual exercising the 
option must, at the time he exercises the option, be a bona fide 
employee of the corporation so assuming or issuing the option, or a 
parent or subsidiary of such corporation. Section 421 is also applicable 
if the individual exercising the option was a bona fide employee of any 
of such corporations within three months before the exercise of the 
option. For purposes of determining whether an individual meets the 
requirement of this subparagraph, the term ``employer corporation'', as 
used in section 421(d) (2) and (3), shall be read as ``grantor 
corporation'' or ``corporation issuing or assuming a stock option in a 
transaction to which section 421(g) is applicable'', as the case may be. 
Therefore, for purposes of the employment requirement, the determination 
of whether a corporation is a parent corporation or a subsidiary 
corporation is based upon whether the corporation is a parent or 
subsidiary of the corporation granting an option or of a corporation 
which issued or assumed an option under section 421(g).
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example (1). On June 1, 1954, X Corporation granted a restricted 
stock option to A, an employee of X Corporation, to purchase a share of 
X stock. On February 1, 1955, X sold the plant where A was employed to M 
Corporation, an unrelated corporation, and A was employed by M. If A 
exercises this restricted stock option on June 1, 1955, section 421 is 
not applicable to such exercise, because on June 1, 1955, A is not 
employed by the corporation which granted the option or by a parent or 
subsidiary of such corporation. Nor was he employed by any of such 
corporations within three months before June 1, 1955.
    Example (2). Assume the facts to be the same as in example (1), 
except that when A was employed by M Corporation, the option to purchase 
X stock was terminated, and was replaced by an option to buy M stock in 
such circumstances that M Corporation is treated as a corporation 
issuing an option under section 421(g). If A exercises the option to 
purchase the share of M stock on June 1, 1955, section 421 is applicable 
for A is then employed by a corporation which issued an option under 
section 421(g).
    Example (3). Assume that P Corporation which owns all of the stock 
of S Corporation grants a restricted stock option to E, an employee of S 
Corporation. If E exercises the option, section 421 is applicable since 
E is employed by a corporation which is a subsidiary of the corporation 
which granted the restricted stock option.

    (c)(1) The determination whether an option ultimately exercised is a 
restricted stock option is made as of the date such option is granted. 
An option which is a restricted stock option when granted does not lose 
its character as such an option by reason of subsequent events, and an 
option which is not a restricted stock option when granted does not 
become such an option by reason of subsequent events. See, however, 
Sec. 1.421-4, relating to modification, extension, or renewal of an 
option.

[[Page 760]]

    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example (1). S-1 Corporation is a subsidiary of S Corporation which, 
in turn, is a subsidiary of P Corporation. On June 1, 1954, P grants to 
an employee of P a restricted stock option to purchase a share of stock 
of S-1. On January 1, 1955, S sells a portion of the S-1 stock which it 
owns to an unrelated corporation and, as of that date, S-1 ceases to be 
a subsidiary of S. On May 1, 1955, while still employed by P, the 
employee exercises his option to purchase a share of S-1 stock. The 
employee has exercised a restricted stock option.
    Example (2). Assume P grants an option to an employee under the same 
facts as in example (1) above, except that on June 1, 1954, S-1 is not a 
subsidiary of either S or P. Such option is not a restricted stock 
option on June 1, 1954. On January 1, 1955, S purchases from an 
unrelated corporation a sufficient number of shares of S-1 stock to make 
S-1, as of that date, a subsidiary of S. On May 1, 1955, while still 
employed by P, the employee exercises his option to purchase a share of 
S-1 stock. The employee has not exercised a restricted stock option.

    (d) For the rules applicable to an exercise of a restricted stock 
option by the estate of the individual to whom the option was granted, 
or by a person who acquired the option by bequest or inheritance or by 
reason of the death of such individual, see paragraph (d) of Sec. 1.421-
5.

[T.D. 6500, 25 FR 11694, Nov. 26, 1960, as amended by T.D. 6527, 26 FR 
411, Jan. 19, 1961]



Sec. 1.421-4   Modification, extension, or renewal.

    (a) In general. Section 421(e) provides the rules for determining 
whether a share of stock transferred to an individual upon his exercise 
of an option, after the terms thereof have been modified, extended, or 
renewed, is transferred pursuant to the exercise of a restricted stock 
option. Such rules and the rules of this section are applicable to 
modifications, extensions, or renewals (or to changes which are not 
treated as modifications) in the case of an exercise of an option in any 
taxable year of the optionee which begins after December 31, 1953, and 
ends after August 16, 1954.
    (b) Effect of a modification, extension, or renewal. (1) Any 
modification, extension, or renewal of the terms of an option to 
purchase stock shall be considered as the granting of a new option.
    (2) Except as otherwise provided in subparagraph (3) of this 
paragraph, in case of a modification, extension, or renewal of an 
option, the highest of the following values shall be considered to be 
the fair market value of the stock at the time of the granting of such 
option for the purpose of applying the rule of section 421(d)(1)(A)--
    (i) The fair market value on the date of the original granting of 
the option,
    (ii) The fair market value on the date of the making of such 
modification, extension, or renewal, or
    (iii) The fair market value at the time of the making of any 
intervening modification, extension, or renewal.
    (3)(i) The rules of subparagraph (2) of this paragraph do not apply 
if the aggregate of the monthly average fair market values of the stock 
subject to the option for the 12 consecutive calendar months preceding 
the month in which the modification, extension, or renewal occurs, 
divided by 12, is an amount less than 80 percent of the fair market 
value of such stock on the date of the original granting of the option 
or the date of the making of any intervening modification, extension, or 
renewal, whichever is the highest. In such case, any modification, 
extension, or renewal of the option is treated as the granting of a new 
option but only the fair market value of the stock subject to the option 
at the time of the modification, extension, or renewal is considered in 
determining whether the option is a restricted stock option. In the case 
of stocks listed on a stock exchange, the average fair market value of 
the stock for any month may be determined by adding the highest and 
lowest quoted selling prices during such month and dividing the sum by 
two. The method used for determining the average fair market value of 
the stock for any month must be used for all twelve months, except where 
it is shown that such method cannot be used for any month or does not 
clearly reflect the average fair market value of the stock for any such 
month.
    (ii) The application of subdivision (i) of this subparagraph may be 
illustrated by the following example:


[[Page 761]]


    Example. On June 1, 1954, a restricted stock option was granted to 
purchase before July 1, 1955, a share of stock for $85. The fair market 
value of such stock on June 1, 1954, was $100. On June 15, 1955, when 
the fair market value of the stock is $60, such option is extended so 
that it is exercisable at any time before July 1, 1956, at $55 a share. 
The average fair market value of the stock subject to the option for 
each of the 12 calendar months preceding June 1955, is as follows:

                                  1954                                  
June...........................................................     $100
July...........................................................       90
August.........................................................       80
September......................................................       70
October........................................................       80
November.......................................................       80
December.......................................................       90
                                                                        
                                  1955                                  
                                                                        
January........................................................       90
February.......................................................       80
March..........................................................       70
April..........................................................       60
May............................................................       60
                                                                        

The aggregate of such values is $950. When this sum is divided by 12, 
the result is $79.17, which is an amount less than 80 percent of the 
fair market value of the stock ($100) when the option was granted. 
Accordingly, when the option is extended on June 15, 1955, the option 
price could have been reduced as low as $51 (85 percent of the fair 
market value of the stock on such day) without disqualifying the option 
as a restricted stock option. If the aggregate fair market values of the 
stock so ascertained had amounted to $960 or more, the rules of 
subparagraph (2) of this paragraph would have been applicable with the 
result that any reduction in the option price would have disqualified 
the option as a restricted stock option.

    (c) Definition of modification, extension, or renewal. (1) The time 
or date when an option is modified, extended, or renewed shall be 
determined, insofar as applicable, in accordance with the rules 
governing determination of the time or date of granting an option 
provided in paragraph (b) of Sec. 1.421-1. For the purpose of section 
421, the term ``modification'' means any change in the terms of the 
option which gives the optionee additional benefits under the option. 
For example, a change in the terms of the option, which shortens the 
period during which the option is exercisable, is not a modification. 
However, a change, which accelerates the time when the option is first 
exercisable, or which provides more favorable terms for the payment for 
the stock purchased under the option, is a modification. A mere change 
in the terms of the option, with respect to the number or price of the 
shares of stock subject to the option, to reflect a stock dividend or 
stock split-up is not a modification of the option. In case there is an 
assumption or substitution of the option by reason of certain corporate 
transactions, see paragraph (d) of this section. Where an option is 
amended solely to increase the number of shares subject to the option, 
such increase shall not be considered as a modification of the option, 
but shall be treated as the grant of a new option for the additional 
shares.
    (2) Any change in the terms of an option for the purpose of 
qualifying the option as a restricted stock option grants additional 
benefits and, therefore, is a modification. For example, if an option 
was granted to purchase for $80 a share of stock, the fair market value 
of which was $100 at such time, and if later the option price is 
increased to $85 in order to meet the requirement of section 
421(d)(1)(A), such change is a modification of the option, although the 
price is increased. Accordingly, the option, despite the change, is not 
a restricted stock option if the fair market value of the share is more 
than $100 when the price is increased. However, if the terms of an 
option are changed to provide that the optionee cannot transfer the 
option except by will or by the laws of descent and distribution, such 
change is not a modification, provided the option is at the same time 
changed so that it is not exercisable after the expiration of ten years 
from the date the option was granted.
    (3) An extension of an option refers to the granting by the 
corporation to the optionee of an additional period of time within which 
to exercise the option beyond the time originally prescribed. A renewal 
of an option is the granting by the corporation of the same rights or 
privileges contained in the original option on the same terms and 
conditions. The rules of this paragraph apply as well to successive 
modifications, extensions, and renewals.
    (d) Assumption or substitution of restricted stock options in 
connection with certain corporate transactions. (1) Where, by reason of 
a corporate transaction,

[[Page 762]]

as defined in this paragraph, an employer corporation, or its parent or 
subsidiary corporation, assumes an existing option, or issues a new 
option in place of the old option, such assumption or issuance is not a 
modification, if--
    (i) The excess of the aggregate fair market value of the stock 
subject to the option immediately after such assumption or issuance over 
the aggregate option price is not more than the excess of the aggregate 
fair market value of the stock subject to the option immediately before 
such assumption or issuance over the aggregate option price, and
    (ii) Such assumption of the old option, or issuance of the new 
option, does not give the optionee additional benefits under the option.

For the purpose of this paragraph, the term ``corporate transaction'' 
means a corporate merger, consolidation, purchase or acquisition of 
property or stock, separation, reorganization, or liquidation. Thus, for 
this purpose, a ``corporate transaction'' includes a taxable transaction 
(such as, a purchase of stock or property for cash) and any corporate 
reorganization (whether or not it comes within the definition of such 
term in section 368) and any corporate liquidation (whether or not 
section 332 is applicable).
    (2)(i) Section 421(g) provides rules under which a new employer, or 
parent or subsidiary of a new employer, may by reason of a corporate 
transaction assume a restricted stock option granted by the former 
employer or parent or subsidiary thereof, or issue a new restricted 
stock option in place of the option granted by the former employer or 
parent or subsidiary thereof, without having such assumption or 
substitution considered a modification of the option. For example, 
section 421(g) may apply where there is a merger of X Corporation into Y 
Corporation and Y Corporation wishes to employ the employees of X 
Corporation and to assume restricted stock options which had been 
granted to them by their former employer, X Corporation. Another example 
is where X Corporation forms a new subsidiary, Y Corporation, and 
transfers to it certain assets and employees, and where Y Corporation 
wishes to grant to such employees a restricted stock option to purchase 
its stock in place of the restricted stock option which they had to 
purchase stock of X Corporation.
    (ii) Section 421(g) also provides rules under which a new parent or 
subsidiary corporation of the employer corporation may by reason of a 
corporate transaction assume a restricted stock option granted by the 
employer or parent or subsidiary thereof, or issue a new restricted 
stock option in place of the option granted by the employer or parent or 
subsidiary thereof, without having such assumption or substitution 
considered a modification of the option. Section 421(g) may apply, for 
example, where X Corporation acquires a new subsidiary, Y Corporation, 
by purchase of stock and desires to grant to the employees of Y 
Corporation a restricted stock option to buy stock of X Corporation in 
place of the restricted stock option which they have to purchase the 
stock of Y Corporation.
    (iii) Section 421(g) applies only when the assumption or 
substitution occurs by reason of a corporate -transaction as defined in 
this paragraph. Thus, section 421(g) may apply where as a result of a 
corporate transaction a restricted stock option can no longer be 
exercised, or if exercised, section 421 would not apply (see the first 
example in subdivision (i) of this subparagraph). Moreover, section 
421(g) may apply in any case where the reason for the assumption or 
substitution grows out of a corporate transaction even though there 
could have been a valid exercise under section 421 of the original 
option (see the second example in subdivision (i) of this subparagraph 
and the example in subdivision (ii) of this subparagraph). However, a 
corporation which has issued an option may not substitute a new option 
for such option under section 421(g).
    (3) For section 421(g) to apply, it is not necessary to show that 
the corporation assuming or substituting the option is under any 
obligation to do so. In fact, section 421(g) may apply where the option 
which is being assumed or replaced expressly provides that it will 
terminate upon the occurrence of certain corporate transactions. 
However,

[[Page 763]]

section 421(g) cannot be applied to revive a restricted stock option 
which, for reasons not related to the corporate transaction, expires 
before it can properly be assumed or replaced under section 421(g). For 
section 421(g) to apply, the assumed or substituted option must qualify 
as a restricted stock option.
    (4) Section 421(g) does not apply if the terms of the assumed or 
substituted option confer on the employee more favorable benefits than 
he had under the old option. Thus, section 421(g) would not apply if the 
old option had just two years to run but the new option has more than 
two years to run.
    (5) For the purpose of applying section 421(g), the assumption or 
substitution shall be considered to occur at the time that the optionee 
would, except for section 421(g), be considered to have been granted the 
option which the employer corporation, or parent or subsidiary thereof, 
is issuing or assuming. An assumption or substitution which occurs by 
reason of a corporate transaction may occur before or after the 
corporate transaction.
    (6) In order to have a substitution of an option under section 
421(g) the optionee must, in connection with the corporate transaction, 
lose his rights under the old option. There cannot be a substitution of 
a new option for an old option within the meaning of section 421(g) if 
it is contemplated that the optionee may exercise both the old option 
and the new option. It is not necessary, however, to have a complete 
substitution of a new option for the old option. For example, assume 
that X Corporation forms a new corporation, Y Corporation, by a transfer 
of certain assets and distributes the stock of Y Corporation to the 
shareholders of X Corporation. Assume further that E, an employee of X 
Corporation, is thereafter an employee of both X Corporation and Y 
Corporation. Y Corporation wishes to substitute an option to purchase 
some of its stock for the restricted stock option which employee E has 
entitling him to purchase 100 shares of the stock of X Corporation. The 
option to purchase the stock of X Corporation, at $42.50 a share, was 
granted when the stock had a fair market value of $50 a share, and the 
stock was worth $100 a share just before the distribution of the new 
corporation's stock to the shareholders of X Corporation. The stock of X 
Corporation and of Y Corporation is worth $50 a share just after such 
distribution, which also is the time of the substitution. On these facts 
an option to purchase 200 shares of stock of Y Corporation at $21.25 a 
share could be given to the employee in complete substitution for the 
old option. It would also be permissible to give the employee an option 
to purchase 100 shares of stock of Y Corporation at $21.25 a share in 
substitution for his right to purchase 50 of the shares covered by the 
old option.
    (7) Any reasonable methods may be used to determine the fair market 
value of the stock subject to the option immediately before the 
assumption or substitution and the fair market value of the stock 
subject to the option immediately after the assumption or substitution. 
Such methods include the valuation methods described in Sec. 20.2031-2 
of this chapter (the Estate Tax Regulations). In the case of stock 
listed on a stock exchange, the fair market value may be based on the 
last sale before and the first sale after the assumption or substitution 
if such sales clearly reflect the fair market value of the stock, or may 
be based upon an average selling price during a longer period, such as 
the day or week before, and the day or week after, the assumption or 
substitution. If the stocks are not listed, or if they are newly issued, 
it will be reasonable to base the determination on experience over even 
longer periods. In the case of a merger, consolidation, or other 
reorganization which is arrived at by arm's length negotiations, the 
fair market value of the stocks subject to the option before and after 
the assumption or substitution may be based upon the values assigned to 
the stock for purposes of the reorganization. For example, if in the 
case of a merger the parties treat each share of the merged company as 
being equal in value to a share of the surviving company, it will be 
reasonable to assume that the stocks are of equal value so that the 
substituted option may permit the employee to purchase at the same price 
one share of the surviving company for

[[Page 764]]

each share he could have purchased of the merged company.
    (8) For the purpose of applying section 421(g), the determination of 
whether the parent-subsidiary relationship exists shall be based upon 
circumstances existing immediately after the corporate transaction.
    (e) Effect on qualification. A restricted stock option may, as a 
result of a modification, extension, or renewal, thereafter cease to be 
a restricted stock option, or any option may, by modification, 
extension, or renewal, thereafter become a restricted stock option.
    (f) Examples. The rule stated in section 421(e) may be illustrated 
by the following examples:

    Example (1). On June 1, 1954, the X Corporation grants to an 
employee an option to purchase 100 shares of the stock of X Corporation 
at $90 per share, such option to be exercised on or before June 1, 1956. 
At the time the option is granted, the fair market value of the X 
Corporation stock is $100 per share. On February 1, 1955, before the 
employee exercises the option, X Corporation modifies the option to 
provide that the price at which the employee may purchase the stock 
shall be $80 per share. On February 1, 1955, the fair market value of 
the X Corporation stock is $90 per share. Under section 421(e), the X 
Corporation is deemed to have granted an option to the employee on 
February 1, 1955. Unless the value of the stock has substantially 
declined making paragraph (b)(3) of this section applicable, such option 
shall be treated as an option to purchase at $80 per share 100 shares of 
stock having a fair market value of $100 per share, that is, the higher 
of the fair market value of the stock on June 1, 1954, and on February 
1, 1955. The exercise of such option by the employee after February 1, 
1955, is not the exercise of a restricted stock option.
    Example (2). On June 1, 1954, the X Corporation grants to an 
employee a restricted stock option to purchase 100 shares of X 
Corporation stock at $90 per share, exercisable after December 31, 1955, 
and on or before June 1, 1956. On June 1, 1954, the fair market value of 
X Corporation's stock is $100 per share. On February 1, 1955, X 
Corporation modifies the option to provide that the option shall be 
exercisable on or after February 1, 1955, and on or before June 1, 1956. 
On February 1, 1955, the fair market value of X Corporation stock is 
$110 per share. Under section 421(e), X Corporation is deemed to have 
granted an option to the employee on February 1, 1955, to purchase at 
$90 per share 100 shares of stock having a fair market value of $110 per 
share, that is, the higher of the fair market value of the stock on June 
1, 1954, and on February 1, 1955. The exercise of such option by the 
employee is not the exercise of a restricted stock option.
    Example (3). The facts are the same as in example (1), except that 
the employee exercised the option to the extent of 50 shares on January 
15, 1955, before the date of the modification of the option. Any 
exercise of the option after February 1, 1955, the date of the 
modification, is not the exercise of a restricted stock option. See 
example (1) in this paragraph. The exercise of the option on January 15, 
1955, pursuant to which 50 shares were acquired, is the exercise of a 
restricted stock option.
    Example (4). On June 1, 1954, the X Corporation grants to an 
employee an option to purchase 100 shares of the stock of X Corporation 
at $80 per share, such option to be exercised on or before June 1, 1956. 
At the time the option is granted, the fair market value of the X 
Corporation stock is $100 per share. On February 1, 1955, before the 
employee exercises the option, the X Corporation modifies the option to 
provide that the number of shares of stock which the employee may 
purchase at $80 per share will be 250. On February 1, 1955, the fair 
market value of the X Corporation stock is $90 per share. Under these 
facts, the X Corporation has granted two options, one option (not a 
restricted stock option) with respect to 100 shares having been granted 
on June 1, 1954, and the other option (a restricted stock option) with 
respect to the additional 150 shares having been granted on February 1, 
1955. In the absence of facts identifying which option is exercised 
first, the employee will be deemed to have exercised the options in the 
order in which they were granted.

[T.D. 6500, 25 FR 11694, Nov. 26, 1960]



Sec. 1.421-5   Operation of section 421.

    (a) Rules applicable to all restricted stock options--(1) In 
general. If a share of stock is transferred to an individual pursuant to 
his timely exercise of a restricted stock option and is not disposed of 
by him within two years from the date of the granting of the option nor 
within 1 year (6 months for taxable years before 1977; 9 months for 
taxable years beginning in 1977) after the transfer of such share to 
him, then, under section 421(a)--
    (i) No income shall result at the time of the transfer of such share 
to the individual upon his exercise of the option with respect to such 
share;
    (ii) No deduction under section 162 shall be allowable at any time 
to the

[[Page 765]]

employer corporation of such individual or its parent or subsidiary 
corporation, or to a corporation which assumed or issued the option 
under section 421(g), with respect to the share so transferred; and
    (iii) No amount other than the option price shall be considered as 
received by any of such corporations for the share so transferred.

For the purpose of subdivisions (i), (ii), and (iii) of this 
subparagraph, each share of stock transferred pursuant to a restricted 
stock option is treated separately. For example, if an individual, while 
employed by a corporation granting him a restricted stock option, 
exercises the option with respect to part of the stock covered by the 
option, and if such individual exercises the balance of the option more 
than three months after leaving such employment, the application of 
section 421 to the stock obtained upon the earlier exercise of the 
option is not affected by the fact that the income taxes of the employer 
and the individual with respect to the stock obtained upon the later 
exercise of the option are not determined under section 421.
    (2) Holding period. The special rules provided in section 421(a) are 
not applicable if the individual disposes of the share of stock within 
two years from the date the option is granted or within six months after 
the transfer of such share to him. Section 421 is not made inapplicable 
by a transfer within the 2-year or 1-year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
period if such transfer is not a disposition of the stock as defined in 
subparagraph (3) of this paragraph, for example, a transfer from the 
decedent to his estate or a transfer by bequest or inheritance. 
Similarly, a disposition by the executor, administrator, heir, or 
legatee is not a disposition by the decedent. In case a restricted stock 
option is exercised by the estate of the individual to whom the option 
was granted, or by a person who acquired the option by bequest or 
inheritance or by reason of the death of such individual, see paragraph 
(d) of this section.
    (3) Disposition of stock. (i) For the purpose of section 421, the 
term ``disposition'' includes a sale, exchange, gift, or any transfer of 
legal title, but does not include--
    (a) A transfer from a decedent to his estate or a transfer by 
bequest or inheritance; or
    (b) An exchange which occurs in a taxable year of the optionee 
beginning after December 31, 1953, and ending after August 16, 1954, and 
to which is applicable section 354, 355, 356, or 1036 (or so much of 
section 1031 as relates to section 1036) or a corresponding provision of 
the Internal Revenue Code of 1939; or
    (c) A mere pledge or hypothecation. However, a disposition of the 
stock pursuant to a pledge or hypothecation is a disposition by the 
individual, even though the making of the pledge or hypothecation is not 
such a disposition.
    (ii) If an individual exercises a restricted stock option, a share 
of stock acquired pursuant to such exercise is not considered disposed 
of by the individual if such share is taken in the name of the 
individual and another person jointly with right of survivorship, or is 
subsequently transferred into such joint ownership, or is retransferred 
from such joint ownership to the sole ownership of the individual. 
However, any termination of such joint ownership is a disposition of 
such share, except to the extent that the individual reacquires 
ownership of the share. For example, if such individual and his joint 
owner transfer such share to another person, the individual has made a 
disposition of such share. Likewise, if a share of stock held in the 
joint names of such individual and another person is transferred to the 
name of such other person, there is a disposition of such share by the 
individual. If an individual exercises a restricted stock option and a 
share of stock is transferred to another or is transferred to such 
individual in his name as trustee for another, the individual has made a 
disposition of such share.
    (4) Examples. The rules of section 421(a) may be illustrated by the 
following examples:

    Example (1). On June 1, 1954, the X Corporation grants to E, an 
employee, a restricted stock option to purchase 100 shares of X 
Corporation stock at $95 per share. On that date, the fair market value 
of X Corporation stock

[[Page 766]]

is $100 per share. On June 1, 1955, while employed by X Corporation, E 
exercises the option in full and pays X Corporation $9,500, and on that 
day X Corporation transfers to E 100 shares of its stock having a fair 
market value of $12,000. Before June 1, 1956, E makes no disposition of 
the 100 shares so purchased. E realizes no income on June 1, 1955, with 
respect to the transfer to him of the 100 shares of X Corporation stock. 
X Corporation is not entitled to any deduction at any time with respect 
to its transfer to E of the stock. E's basis for such 100 shares is 
$9,500.
    Example (2). Assume, in example (1), that on August 1, 1956, two 
years and two months after the granting of the option and one year and 
two months after the transfer of the shares to him, E sells the 100 
shares of X Corporation stock for $13,000, which is the fair market 
value of the stock on that date. For the taxable year in which the sale 
occurs, E realizes a gain of $3,500 ($13,000 minus E's basis of $9,500), 
which is treated as long-term capital gain.
    Example (3). Assume, in example (2), that on August 1, 1956, E makes 
a gift of the 100 shares of X Corporation stock to his son. Such 
disposition results in no realization of gain to E either for the 
taxable year in which the option is exercised or the taxable year in 
which the gift is made. E's basis of $9,500 becomes the donee's basis 
for determining gain or loss.
    Example (4). Assume, in example (1), that on May 1, 1956, one year 
and 11 months after the granting of the option and 11 months after the 
transfer of the shares to him, E sells the 100 shares of X Corporation 
stock for $13,000. The special rules of section 421(a) are not 
applicable to the transfer of the stock by X Corporation to E, because 
disposition of the stock was made by E within two years from the date 
the option was granted. See paragraph (e) of this section for the effect 
of a disqualifying disposition.
    Example (5). Assume, in example (1), that E dies on September 1, 
1955, owning the 100 shares of X Corporation stock acquired by him 
pursuant to his exercise on June 1, 1955, of the restricted stock 
option. On the date of death, the fair market value of the stock is 
$12,500. No income is realized by E by reason of the transfer of the 100 
shares to his estate. If the stock is valued as of the date of E's death 
for estate tax purposes, the basis of the 100 shares in the hands of the 
executor is $12,500.

    (b) Additional rules applicable where the option price is between 85 
percent and 95 percent of the value of the stock--(1) In general. (i) If 
all the conditions necessary for the application of section 421(a) 
exist, section 421(b) provides additional rules which are applicable in 
cases where, at the time the restricted stock option is granted, the 
option price per share is less than 95 percent (but not less than 85 
percent) of the fair market value of such share. In such case, upon the 
disposition of such share by the individual after the expiration of the 
2-year and 1-year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977) periods, or upon his death 
while owning such share (whether occurring before or after the 
expiration of such periods), there shall be included in the individual's 
gross income as compensation (and not as gain upon the sale or exchange 
of a capital asset) an amount determined in the following manner. If the 
option qualified under section 421(d)(1)(A)(i) (see paragraph 
(d)(2)(i)(a) of Sec. 1.421-1), such amount shall be the amount, if any, 
by which the option price is exceeded by the lesser of the fair market 
value of the share at the time the option was granted or the fair market 
value of the share at the time of such disposition or death. However, if 
the option qualified under section 421(d)(1)(A)(ii) (see paragraph 
(d)(2)(i)(b) of Sec. 1.421-1), such amount shall be whichever of the 
following amounts is lesser:
    (a) The excess of the fair market value of the share at the time of 
such disposition or death over the price paid under the option, or
    (b) The excess of the fair market value of the share at the time the 
option was granted over the option price, computed as if the option had 
been exercised at such time.

The amount of such compensation shall be included in the individual's 
gross income for the taxable year in which the disposition occurs or for 
the taxable year closing with his death, whichever event results in the 
application of section 421(b).
    (ii) The application of the special rules provided in section 421(b) 
shall not affect the rules provided in section 421(a) with respect to 
the individual exercising the option, the employer corporation, or its 
parent or subsidiary corporation. Thus, notwithstanding the inclusion of 
an amount as compensation in the gross income of an individual, as 
provided in section 421(b), no income results to the individual at the 
time the stock is transferred to him,

[[Page 767]]

and no deduction under section 162 is allowable at any time to the 
employer corporation or its parent or subsidiary with respect to such 
amount.
    (iii) If the individual exercises a restricted stock option during 
his lifetime and dies before the stock is transferred to him pursuant to 
his exercise of the option, the transfer of such stock to the 
individual's executor, administrator, heir, or legatee is deemed, for 
the purpose of section 421, to be a transfer of the stock to the 
individual exercising the option and a further transfer by reason of 
death from such individual to his executor, administrator, heir, or 
legatee.
    (2) Basis. If the special rules provided in section 421(b) are 
applicable to the disposition of a share of stock by an individual, the 
basis of such share in the individual's hands at the time of such 
disposition, determined under section 1011, shall be increased by an 
amount equal to the amount includible as compensation in his gross 
income under section 421(b). However, in the case of a share of stock 
acquired by the exercise of a restricted stock option after the death of 
the employee to whom the option was granted, the basis of such share 
shall be determined in accordance with the rules of paragraph (d)(4) of 
this section. If the special rules provided in section 421(b) are 
applicable to a share of stock upon the death of an individual, the 
basis of such share in the hands of the estate or the person receiving 
the stock by bequest or inheritance shall be determined under section 
1014, and shall not be increased by reason of the inclusion upon the 
decedent's death of any amount in his gross income under section 421(b). 
See example (9) of this paragraph with respect to the determination of 
basis of the share in the hands of a surviving joint owner.
    (3) Examples. The operation of section 421(b) may be illustrated by 
the following examples:

    Example (1). On June 1, 1954, the X Corporation grants to E, an 
employee, a restricted stock option to purchase a share of X 
Corporation's stock for $85. The fair market value of the X Corporation 
stock on such date is $100 per share. On June 1, 1955, E exercises the 
restricted stock option and on that date the X Corporation transfers the 
share of stock to E. On January 1, 1957, E sells the share for $150, its 
fair market value on that date. E makes his income tax return on the 
basis of the calendar year. The income tax consequences to E and X 
Corporation are as follows: (i) Compensation in the amount of $15 is 
includible in E's gross income for 1957, the year of the disposition of 
the share. The $15 represents the difference between the option price 
($85) and the fair market value of the share on the date the option was 
granted ($100), since such value is less than the fair market value of 
the share on the date of disposition ($150). For the purpose of 
computing E's gain or loss on the sale of the share, E's cost basis of 
$85 is increased by $15, the amount includible in E's gross income as 
compensation. Thus, E's basis for the share is $100. Since the share was 
sold for $150, E realizes a gain of $50, which is treated as long-term 
capital gain; (ii) The X Corporation is entitled to no deduction under 
section 162 at any time with respect to the share transferred to E.
    Example (2). Assume, in example (1), that E sells the share of X 
Corporation stock on January 1, 1958, for $75, its fair market value on 
that date. Since $75 is less than the option price ($85), no amount in 
respect of the sale is includible as compensation in E's gross income 
for 1958. E's basis for determining gain or loss on the sale is $85. 
Since E sold the share for $75, E realized a loss of $10 on the sale, 
which loss is treated as a long-term capital loss.
    Example (3). Assume, in example (1), that the option provides that 
the option price shall be 90 percent of the fair market value of a share 
of the stock on the day the option is exercised. On June 1, 1955, when 
the option is exercised, the fair market value of the stock is $120 per 
share so that E pays $108 for the share of stock. Compensation in the 
amount of $10 is includible in E's gross income for 1957, the year of 
the disposition of the share. This is determined in the following 
manner. The excess of the fair market value of the stock at the time of 
the disposition ($150) over the price paid for the share ($108) is $42; 
and the excess of the fair market value of the stock at the time the 
option was granted ($100) over the option price, computed as if the 
option had been exercised at such time ($90), is $10. Accordingly, $10 
the lesser, is includible in gross income. In this situation, E's cost 
basis of $108 is increased by $10, the amount includible in E's gross 
income as compensation. Thus, E's basis for the share is $118. Since the 
share was sold for $150, E realizes a gain of $32, which is treated as 
long-term capital gain.
    Example (4). Assume, in example (1), that instead of selling the 
share on January 1, 1957, E makes a gift of the share on that day. In 
such case, $15 is includible as compensation in E's gross income for 
1957. E's cost basis of $85 is increased by $15, the amount

[[Page 768]]

includible in E's gross income as compensation. Thus, E's basis for the 
share is $100, which becomes the donee's basis, as of the time of the 
gift, for determining gain or loss.
    Example (5). Assume, in example (2), that instead of selling the 
share on January 1, 1958, E makes a gift of the share on that date. 
Since the fair market value of the share on that day ($75) is less than 
the option price ($85), no amount in respect of the disposition by way 
of gift is includible as compensation in E's gross income for 1958. E's 
basis for the share is $85, which becomes the donee's basis, as of the 
time of the gift, for the purpose of determining gain. The donee's basis 
for the purpose of determining loss, determined under section 1015(a), 
is $75 (fair market value of the share at the date of gift).
    Example (6). Assume, in example (1), that after acquiring the share 
of stock on June 1, 1955, E dies on August 1, 1956, at which time the 
share has a fair market value of $150. Compensation in the amount of $15 
is includible in E's gross income for the taxable year closing with his 
death, such $15 being the difference between the option price ($85) and 
the fair market value of the share when the option was granted ($100), 
since such value is less than the fair market value at date of death 
($150). The basis of the share in the hands of E's estate is determined 
under section 1014 without regard to the $15 includible in the 
decedent's gross income.
    Example (7). Assume, in example (6), that E dies on August 1, 1955, 
at which time the share has a fair market value of $150. Although E's 
death occurred within two years from the date of the granting of the 
option and within six months after the transfer of the share to him, the 
income tax consequences are the same as in example (6).
    Example (8). Assume the same facts as in example (1), except that 
the share of stock was issued in the names of E and his wife jointly 
with right of survivorship, and except that E and his wife sold the 
share on June 15, 1956, for $150, its fair market value on that date. 
Compensation in the amount of $15 is includible in E's gross income for 
1956, the year of the disposition of the share. The basis of the share 
in the hands of E and his wife for the purpose of determining gain or 
loss on the sale is $100, that is, the cost of $85 increased by the 
amount of $15 includible as compensation in E's gross income. The gain 
of $50 on the sale is treated as long-term capital gain, and is divided 
equally between E and his wife.
    Example (9). Assume the same facts as in example (1), except that 
the share of stock was issued in the names of E and his wife jointly 
with right of survivorship, and except that E predeceased his wife on 
August 1, 1956, at which time the share had a fair market value of $150. 
Compensation in the amount of $15 is includible in E's gross income for 
the taxable year closing with his death. See example (6). The basis of 
the share in the hands of E's wife as survivor is determined under 
section 1014 without regard to the $15 includible in the decedent's 
gross income.
    Example (10). Assume, in example (9), that E's wife predeceased him 
on July 1, 1956. Section 421(b) does not apply in respect of her death. 
Upon the subsequent death of E on August 1, 1956, the income tax 
consequences in respect of E's taxable year closing with the date of his 
death, and in respect of the basis of the share in the hands of his 
estate, are the same as in example (6). If E had sold the share on July 
15, 1956 (after the death of his wife), for $150, its fair market value 
at that time, the income tax consequences would be the same as in 
example (1).

    (c) Acquisition of other stock. (1) Section 421(c) provides that the 
special rules stated in section 421 (a) and (b), if applicable with 
respect to stock transferred to an individual upon his exercise of an 
option, shall likewise be applicable with respect to stock acquired by a 
distribution or an exchange to which is applicable section 305, 354, 
355, 356, or 1036 (or so much of section 1031 as relates to section 
1036) or a corresponding provision of the Internal Revenue Code of 1939. 
Stock so acquired shall, for the purpose of section 421, be considered 
as having been transferred to the individual upon his exercise of the 
option. A similar rule shall be applied in the case of a series of such 
acquisitions. With respect to such acquisitions, section 421(c) does not 
make inapplicable any of the provisions of section 305, 354, 355, 356, 
or 1036 (or so much of section 1031 as relates to section 1036). Section 
421(c) is applicable only with respect to such acquisitions which occur 
in any taxable year of the shareholder which begins after December 31, 
1953, and ends after August 16, 1954. As to acquisitions occurring in 
earlier taxable years, see section 130A(c) of the Internal Revenue Code 
of 1939.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following example:

    Example. If, with respect to stock transferred pursuant to the 
timely exercise of a restricted stock option, there is a distribution of 
new stock to which section 305(a) is applicable, and if there is a 
disposition of such new stock within two years after the option was 
granted, such disposition makes section 421 inapplicable to the transfer 
of the

[[Page 769]]

original stock pursuant to the exercise of the option to the extent that 
the disposition effects a reduction of the individual's total interest 
in the old and new stock. However, if the new stock, as well as the old 
stock, is not disposed of within two years after the option was granted, 
nor within 1 year (6 months for taxable years beginning before 1977; 9 
months for taxable years beginning in 1977) after the transfer of the 
old stock pursuant to the exercise of the option, section 421 is 
applicable.

    (d) Exercise after death. (1) If a restricted stock option is 
exercised by the estate of the individual to whom the option was 
granted, or by any person who acquired such option by bequest or 
inheritance or by reason of the death of such individual, and if such 
exercise occurs in a taxable year of the estate or of such person 
beginning after December 31, 1953, and ending after August 16, 1954, 
section 421 applies to such exercise in the same manner as if such 
option had been exercised by such deceased individual. Consequently, 
neither the estate nor such person is required to include any amount in 
gross income as a result of a transfer of stock pursuant to such 
exercise of the option. Nor does section 421 become inapplicable if such 
executor, administrator, or person disposes of the stock so acquired 
within two years after the granting of such option or within 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977) after the transfer of the stock pursuant to the 
exercise of such option. This exception as to the applicability of 
section 421 does not affect the applicability of section 1222, relating 
to what constitutes a short-term and long-term capital gain or loss. The 
executor, administrator, or such person need not exercise the option 
within three months after the death of the individual to whom the option 
was granted for section 421 to be applicable. However, the exercise of 
the option must be pursuant to the terms of the option, and any change 
in the terms of the option is subject to the rules of Sec. 1.421-4, 
relating to the modification, extension, or renewal of the option. 
Section 421 is applicable even though such executor, administrator, or 
person is not employed by the corporation granting the option, or a 
parent or subsidiary thereof, either when the option is exercised or at 
any time. However, section 421 is not applicable to an exercise of the 
option by the estate or by such person, unless the individual to whom 
the option was granted met the requirements of paragraph (b) of 
Sec. 1.421-3, relating to the employment of such individual, either at 
the time of his death or within three months before such time. If the 
option is exercised by a person other than the executor or 
administrator, or other than a person who acquired the option by bequest 
or inheritance or by reason of the death of such deceased individual, 
section 421 is not applicable to the exercise. For example, if the 
option is sold by the estate, section 421 does not apply to an exercise 
of the option by such buyer; but if the option is distributed by the 
administrator to an heir as part of the estate, section 421 is 
applicable to an exercise of the option by such heir.
    (2) Any transfer by the estate, whether a sale, a distribution of 
assets, or otherwise, of the stock acquired by its exercise of the 
option under this paragraph is a disposition of the stock. Therefore, if 
section 421(b) is applicable, the estate must include an amount as 
compensation in its gross income. Similarly, if section 421(b) is 
applicable in case of an exercise of the option under this paragraph by 
a person who acquired the option by bequest or inheritance or by reason 
of the death of the individual to whom the option was granted, there 
must be included in the gross income of such person an amount as 
compensation, either when such person disposes of the stock, or when he 
dies owning the stock.
    (3)(i) If under section 421(b) an amount is required to be included 
in the gross income of the estate or of such person, the estate or such 
person shall be allowed a deduction as a result of the inclusion of the 
value of the restricted stock option in the estate of the individual to 
whom the option was granted. Such deduction shall be computed under 
section 691(c) by treating the restricted stock option as an item of 
gross income in respect of a decedent under section 691 and by treating 
the amount required to be included in gross income under section 421(b) 
as an amount included in gross income under section 691 in respect of 
such item of

[[Page 770]]

gross income. No such deduction shall be allowable with respect to any 
amount other than an amount includible under section 421(b). For the 
rules relating to the computation of a deduction under section 691(c), 
see Sec. 1.691(c)-1.
    (ii) The application of subdivision (i) may be illustrated by the 
following example:

    Example. On June 1, 1953, E was granted a restricted stock option to 
purchase for $85 one share of the stock of his employer. On such day, 
the fair market value of such stock was $100 a share. E died on February 
1, 1954, without having exercised such option. The option was, however, 
exercisable by his estate, and for purposes of the estate tax was valued 
at $30. On March 1, 1955, the estate exercised the option, and on March 
15, 1955, sold for $150 the share of stock so acquired. For its taxable 
year including March 15, 1955, the estate is required by section 421(b) 
to include in its gross income as compensation the amount of $15. During 
such taxable year, no amounts of income were properly paid, credited, or 
distributable to the beneficiaries of the estate. However, under section 
421(d)(6)(B), the estate is entitled to a deduction determined in the 
following manner. E's estate includes no other items of income in 
respect of a decedent referred to in section 691(a), and no deductions 
referred to in section 691(b), so that the value for estate tax purposes 
of the restricted stock option, $30, is also the net value of all items 
of income in respect of the decedent. The estate tax attributable to the 
inclusion of the restricted stock option in the estate of E is $10. 
Since $15, the amount includible in gross income by reason of section 
421(b), is less than the value for estate tax purposes of the option, 
only \15/30\ of the estate tax attributable to the inclusion of the 
option in the estate is deductible; that is, \15/30\ of $10, or $5. No 
deduction under section 421(d)(6)(B) is allowable with respect to any 
capital gain.

    (4)(i) In the case of an employee dying before January 1, 1957, the 
basis of any share of stock acquired by the exercise of the option under 
this paragraph, determined under section 1011, shall be increased by an 
amount equal to the amount includible as compensation in his gross 
income under section 421(b). The basis of the share shall not be 
increased by reason of the inclusion of the value of the restricted 
stock option in the estate for estate tax purposes.
    (ii)(A) In the case of an employee dying after December 31, 1956, 
the basis of any share of stock acquired by the exercise of the option 
under this paragraph, determined under section 1011, shall be increased 
by an amount equal to the portion of the basis of the option 
attributable to such share. For example, if a restricted stock option to 
acquire 10 shares of stock has a basis of $100, the basis of one share 
acquired by a partial exercise of the option, determined under section 
1011, would be increased by \1/10\ of $100, or $10. The option acquires 
a basis, determined under section 1014(a), only if it is exercised in 
accordance with section 421. Therefore, to the extent the option is so 
exercised, in whole or in part, it will acquire a basis equal to its 
fair market value at the date of the employee's death or, if an election 
is made under section 2032, its value at its applicable valuation date. 
In certain cases, the basis of the share is subject to the adjustments 
provided by (B) and (C) of this subdivision, but such adjustments are 
only applicable in the case of an option which is subject to section 
421(b).
    (B) If the amount which would have been includible in gross income 
under section 421(b) had the employee exercised the option and held the 
share at the time of his death exceeds the amount which is includible in 
gross income under section 421(b), the basis of the share, determined 
under (A) of this subdivision, shall be reduced by such excess. For 
example, if $15 would have been includible in the gross income of the 
employee had he exercised the option and held such share at the time of 
his death, and only $10 is includible under section 421(b), the basis of 
the share, determined under (A) of this subdivision, would be reduced by 
$5. For purposes of determining the amount which would have been 
includible in gross income under section 421(b) if the employee had 
exercised the option and held such share at the time of his death, the 
amount which would have been paid for the share shall be computed as if 
the option had been exercised on the date the employee died.
    (C) If the amount includible in gross income under section 421(b) 
exceeds the portion of the basis of the option attributable to the 
share, the basis of the

[[Page 771]]

share, determined under (A) of this subdivision, shall be increased by 
such excess. Thus, if $15 is includible in gross income under section 
421(b), and the basis of the option with respect to the share is $10, 
the basis of the share, determined under (A) of this subdivision, will 
be increased by $5.
    (iii) If a restricted stock option is not exercised by the estate of 
the individual to whom the option was granted, or by the person who 
acquired such option by bequest or inheritance or by reason of the death 
of such individual, the option shall be considered to be property which 
constitutes a right to receive an item of income in respect of a 
decedent to which the rules of sections 691 and 1014(c) apply.
    (iv) The application of this subparagraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1954, the X Corporation granted to E, an 
employee, a restricted stock option to purchase a share of X 
Corporation's stock for $85. The fair market value of the X Corporation 
stock on such date was $100 per share. On June 1, 1955, E died. The fair 
market value of X Corporation stock on such date exceeded $100 per share 
and the fair market value of the option on the applicable valuation date 
was $35. On August 1, 1956, the estate of E exercised the option and 
sold the share of X Corporation stock at a time when the fair market 
value of the share was $90. The estate is required by section 421(b) to 
include $5 in its gross income as compensation. Since E died before 
January 1, 1957, the basis of the share is $90 (the $85 paid for the 
stock plus the $5 includible in gross income as compensation), and the 
basis of the share is not increased by reason of the inclusion of the 
value of the option in the estate of E (see section 1014(d)). Thus, no 
gain or loss is realized on the disposition of the share since the basis 
of the share is equal to the sale price.
    Example (2). On June 1, 1956, the X Corporation granted to E, an 
employee, a restricted stock option to purchase a share of X Corporation 
stock for $85. The fair market value of X Corporation stock on such date 
was $100 per share. On June 1, 1957, E died. The fair market value of X 
Corporation stock on such date exceeded $100 per share and the fair 
market value of the option on the applicable valuation date was $35. On 
August 1, 1958, the estate of E exercised the option and sold the share 
of X Corporation stock at a time when the fair market value of the share 
was $120. The basis of the share is $120 (the $85 paid for the stock 
plus the $35 basis of the option). When the share is sold for $120, the 
estate is required to include $15 in its gross income as compensation. 
Since $15 would have been includible in E's gross income if he had 
exercised the option and held such share at the time of his death, 
subdivision (ii)(B) of this subparagraph does not apply. Moreover, since 
the $15 includible in the gross income of the estate does not exceed the 
basis of the option ($35), subdivision (ii)(C) of this subparagraph does 
not apply. Since the basis of the stock and the sale price are the same, 
no gain or loss is realized by the estate on the disposition of the 
share.
    Example (3). Assume the same facts as in example (2), except that 
the fair market value of the share of stock at the time if its sale was 
$90. The basis of the share, determined under subdivision (ii)(A) of 
this subparagraph, is $120 (the $85 paid for the stock plus the $35 
basis of the option). When the share is sold for $90, the estate is 
required to include $5 in its gross income as compensation. If the 
employee had exercised the option and held the share at the time of this 
death, $15 would have been includible in gross income as compensation 
for the taxable year ending with his death. Since such amount exceeds by 
$10 the amount which the estate is required to include in its gross 
income, subdivision (ii)(B) of this subparagraph applies, and the basis 
of the share ($120), determined under subdivision (ii)(A) of this 
subparagraph is reduced by $10. Accordingly, the basis is $110, and a 
capital loss of $20 is realized on the disposition of the share.
    Example (4). Assume the same facts as in example (2), except that 
the fair market value of the option on the applicable valuation date was 
$5, and that the fair market value of X Corporation stock on the date 
the employee died did not exceed $100. The basis of the share, 
determined under subdivision (ii)(A) of this subparagraph, is $90 (the 
$85 paid for the stock plus the $5 basis of the option). When the share 
is sold for $120, the estate is required to include $15 in its gross 
income as compensation. Since such amount exceeds by $10 the basis of 
the option, subdivision (ii)(C) of this subparagraph applies, and the 
basis of the share ($90), determined under subdivision (ii)(A) of this 
subparagraph, is increased by $10. Accordingly, the basis is $100 and a 
capital gain of $20 is realized on the disposition of the share.
    Example (5). Assume the same facts as in example (2), except that on 
June 1, 1957, the date the employee died, the fair market value of X 
Corporation stock was $98, and that on June 1, 1958, the alternate 
valuation date, the fair market value of the stock had declined 
substantially, and the fair market value of the option was $5. On August 
1, 1958, the estate of E exercised the option and sold the share when 
its fair market value was $92. The basis of the share, determined under 
subdivision (ii)(A) of this subparagraph, is $90 (the $85) paid for the 
stock plus the $5

[[Page 772]]

basis of the option). When the share is sold for $92, the estate is 
required to include $7 in its gross income as compensation. Since $13 
would have been includible in E's gross income if he had exercised the 
option and held such share at the time of his death, subdivision (ii)(B) 
of this subparagraph applies, and the basis of the share ($90), 
determined under subdivision (ii)(A) of this subparagraph, is reduced by 
$6 to $84. Furthermore, since the $7 that the estate is required to 
include in its gross income when the share is sold for $92 exceeds by $2 
the basis of the option, subdivision (ii)(C) of this subparagraph 
applies, and the basis of the share ($84), determined under subdivision 
(ii)(A) and (ii)(B) of this subparagraph, is increased by $2. 
Accordingly, the basis is $86 and a capital gain of $6 is realized on 
the disposition of the share.

    (e) Disqualifying disposition. The disposition of a share of stock, 
acquired by the exercise of a restricted stock option, within two years 
after the granting of the option or within 1 year (6 months for taxable 
years beginning before 1977; 9 months for taxable years beginning in 
1977) after the transfer of the share pursuant to such exercise makes 
section 421 inapplicable to such transfer of the share. If such 
disqualifying disposition occurs in a taxable year of the individual 
which begins after December 31, 1953, and ends after August 16, 1954, 
the income attributable to such transfer shall be treated by the 
individual as income received in the taxable year in which such 
disposition occurs. Similarly, if such disposition occurs in a taxable 
year of the employer which begins after December 31, 1953, and ends 
after August 16, 1954, the deduction attributable to the transfer of the 
share of stock pursuant to the exercise of the option shall be allowable 
for the taxable year in which such disposition occurs. In such cases, no 
amount shall be treated as income, and no amount shall be allowed as a 
deduction, for any taxable year other than the taxable year in which 
occurs the disposition. However, if the stock was transferred pursuant 
to the exercise of the option in a taxable year other than the taxable 
year of the disposition, the amount of the deduction shall be 
determinded as if the employee had been paid compensation at the time 
provided in paragraph (d) of Sec. 1.421-6.

[T.D. 6500, 25 FR 11696, Nov. 26, 1960, as amended by T.D. 6527, 26 FR 
411, Jan. 19, 1961; T.D. 7728, 45 FR 72650, Nov. 3, 1980]



Sec. 1.421-6   Options to which section 421 does not apply.

    (a) Scope of section. (1) If an employer or other person grants to 
an employee or other person for any reason connected with the employment 
of such employee an option to purchase stock of the employer or other 
property, and if section 421 is not applicable, then this section shall 
apply. This section will apply, for example, when an option is not a 
qualified or restricted stock option at the time it is granted or an 
option granted under an employee stock purchase plan, or when an option 
is modified so that it no longer qualifies as such an option, or when 
there is a disqualifying disposition of stock acquired by the exercise 
of such an option so that section 421 does not apply. When an option is 
granted for any reason connected with the employment of an employee, 
this section applies, if section 421 does not apply, irrespective of 
whether the option is granted by the employer, by a parent or subsidiary 
of the employer, by a stockholder of any of such corporations, or by any 
other person, and irrespective of whether the option is granted to the 
employee, to a member of his family, or to any other person, and 
irrespective of whether the option is to purchase the stock of the 
employer, the stock of the parent or subsidiary of the employer, the 
stock of any other corporation, or to purchase any other property. In 
addition, Sec. 1.61-15 makes the rules of this section applicable in 
determining the time when certain other options result in the 
realization of income and the amount of such income.
    (2) This section is applicable to options granted on or after 
February 26, 1945, and before July 1, 1969 (and thereafter, to the 
extent that Sec. 1.83-8(b) applies). For rules relating to options 
granted after June 30, 1969, see Sec. 1.83-7. This section, however, is 
not applicable to--
    (i) Property transferred pursuant to an option exercised before 
September 25, 1959, if the property is transferred subject to a 
restriction which has a significant effect on its value, or
    (ii) Property transferred pursuant to an option granted before 
September 25, 1959, and exercised on or after such

[[Page 773]]

date, if, under the terms of the contract granting such option, the 
property to be transferred upon the exercise of the option is to be 
subject to a restriction which has a significant effect on its value and 
if such property is actually transferred subject to such restriction. 
However, if an option granted before September 25, 1959, and on or after 
February 26, 1945, is sold or otherwise disposed of before exercise, the 
provisions of this section shall be fully applicable to such 
disposition.
    (3) If an option to which this section applies has a readily 
ascertainable fair market value when granted, no amount is includible in 
gross income under this section as compensation by reason of the 
transfer or exercise of such option, irrespective of whether such value 
was included in income for the taxable year in which the option was 
granted, and any deduction which is allowable as a result of the 
granting of such option is allowable only for the taxable year in which 
the option is granted. Thus, if an option having a readily ascertainable 
fair market value to which this section applies was granted in a taxable 
year for which an assessment of deficiency was barred at the time of the 
adoption of paragraph (c) of this section as a Treasury decision, no 
amount is includible in gross income under this section as compensation 
by reason of the transfer or exercise of such option. However, if there 
is a determination to which the rules of sections 1311-1314 apply, there 
may be an adjustment for the taxable year in which the option was 
granted.
    (b) Meaning and use of certain terms. (1) For the purpose of this 
section, the term ``option'' includes the right or privilege of a person 
to purchase property from any person by virtue of an offer continuing 
for a stated period of time, whether or not irrevocable, to sell such 
property at a stated price, such person being under no obligation to 
purchase.
    (2) As used in this section, the terms ``employee'', ``employment'', 
and ``employer'' have reference to the legal and bona fide relationship 
of employer and employee. For rules applicable to the determination 
whether the employer employee relationship exists, see section 3401(c) 
and the regulations thereunder.
    (3) For purposes of applying the rules of this section to the 
options which are made subject to such rules by Sec. 1.61-15--
    (i) The term ``employee'' includes the person who provided the 
consideration resulting in the grant of the option, the term 
``employer'' includes the person to whom, or for whom, such 
consideration was provided, and the term ``employment'' includes the 
providing of such consideration;
    (ii) Where a stock option is granted to an underwriter prior to a 
public offering and such grant is expressly or impliedly conditional 
upon the successful completion of the underwriting, the date on which 
the option shall be considered ``granted'' shall be the date of the 
successful completion of the underwriting.
    (c) Options with a readily ascertainable fair market value. (1) If 
there is granted an option to which this section applies and which has a 
readily ascertainable fair market value (determined in accordance with 
subparagraphs (2) and (3) of this paragraph) at the time the option is 
granted, the employee in connection with whose employment such option is 
granted realizes compensation at such time in an amount equal to the 
excess, if any, of such fair market value over any amount paid for the 
option. If an option to which this section applies does not have a 
readily ascertainable fair market value at the time the option is 
granted, the time when the compensation is realized and the amount of 
such compensation shall be determined under paragraph (d) of this 
section.
    (2) Although options may have a value at the time they are granted, 
that value is ordinarily not readily ascertainable unless the option is 
actively traded on an established market. If an option is actively 
traded on an established market, the fair market value of such option is 
readily ascertainable for purposes of this section by applying the rules 
of valuation set forth in Sec. 20.2031-2 of this chapter (the Estate Tax 
Regulations).
    (3)(i) When an option is not actively traded on an established 
market, the fair market value of the option is not readily ascertainable 
unless the fair

[[Page 774]]

market value of the option can be measured with reasonable accuracy. For 
purposes of this section, if an option is not actively traded on an 
established market, the option does not have a readily ascertainable 
fair market value when granted unless the taxpayer can show that all of 
the following conditions exist:
    (a) The option is freely transferable by the optionee;
    (b) The option is exercisable immediately in full by the optionee;
    (c) The option or the property subject to the option is not subject 
to any restriction or condition (other than a lien or other condition to 
secure the payment of the purchase price) which has a significant effect 
upon the fair market value of the option or such property; and
    (d) The fair market value of the option privilege is readily 
ascertainable in accordance with subdivision (ii) of this subparagraph.
    (ii) The option privilege in the case of an option to buy is the 
opportunity to benefit during the option's exercise period from any 
increase in the value of property subject to the option during such 
period, without risking any capital. Similarly, the option privilege in 
the case of an option to sell is the opportunity to benefit during the 
exercise period from a decrease in the value of the property subject to 
the option, for example, if at some time during the exercise period of 
an option to buy, the fair market value of the property subject to the 
option is greater than the option's exercise price, a profit may be 
realized by exercising the option and immediately selling the property 
so acquired for its higher fair market value. Irrespective of whether 
any such gain may be realized immediately at the time an option is 
granted, the fair market value of an option includes the value of the 
right to benefit from any future increase in the value of the property 
subject to the option (relative to the option exercise period), without 
risking any capital. Therefore, the fair market value of an option is 
not merely the difference that may exist at a particular time between 
the option's exercise price and the value of the property subject to the 
option, but also includes the value of the option privilege for the 
remainder of the exercise period. Accordingly, for purposes of this 
section, in determining whether the fair market value of an option is 
readily ascertainable, it is necessary to consider whether the value of 
the entire option privilege can be measured with reasonable accuracy. In 
determining whether the value of the option privilege is readily 
ascertainable, and in determining the amount of such value when such 
value is readily ascertainable, it is necessary to consider--
    (a) Whether the value of the property subject to the option can be 
ascertained; and
    (b) The probability of any ascertainable value of such property 
increasing or decreasing; and (c) The length of the period during which 
the option can be exercised.
    (d) Options without a readily ascertainable fair market value. If 
there is granted an option to which this section applies, and if the 
option does not have a readily ascertainable fair market value at the 
time it is granted, the employee in connection with whose employment the 
option is granted is considered to realize compensation includible in 
gross income under section 61 at the time and in the amount determined 
in accordance with the following rules of this paragraph:
    (1) Except as provided in subparagraph (2) of this paragraph, if the 
option is exercised by the person to whom it was granted, the employee 
realizes compensation at the time an unconditional right to receive the 
property subject to the option is acquired by such person, and the 
amount of such compensation is the difference between the amount payable 
for the property and the fair market value of the property at the time 
an unconditional right to receive the property is acquired. An 
individual has an unconditional right to receive the property subject to 
the option when his right to receive such property is not subject to any 
conditions, other than conditions that may be performed by him at any 
time. Thus, if an individual who has exercised an option has a right to 
make payment for the property at any time and to receive the property 
immediately after making such payment, such individual realizes 
compensation

[[Page 775]]

at the time he exercises the option. However, if an individual who has 
exercised an opinion is prevented by the terms of the option contract 
from making payment immediately of from receiving an immediate transfer 
of the property after making payment, such individual does not realize 
compensation at the time he exercises the option. Such individual will 
not realize compensation until he does acquire the right to make payment 
immediately and to receive an immediate transfer of the property. For 
purposes of this paragraph, an unconditional right to receive the 
property subject to the option shall not be considered to have been 
acquired before the date on which the option is exercised.
    (2)(i) If the option is exercised by the person to whom it was 
granted but, at the time an unconditional right to receive the property 
subject to the option is acquired by such person, such property is 
subject to a restriction which has a significant effect on its value, 
the employee realizes compensation at the time such restriction lapses 
or at the time the property is sold or exchanged, in an arm's length 
transaction, whichever occurs earlier, and the amount of such 
compensation is the lesser of--
    (a) The difference between the amount paid for the property and the 
fair market value of the property (determined without regard to the 
restriction) at the time of its acquisition, or
    (b) The difference between the amount paid for the property and 
either its fair market value at the time the restriction lapses or the 
consideration received upon the sale or exchange, whichever is 
applicable.

If the property is sold or exchanged in a transaction which is not at 
arm's length before the time the employee realizes compensation in 
accordance with this subdivision, any amount of gain which the employee 
realizes as a result of such sale or exchange is includible in gross 
income at the time of such sale or exchange, but the amount includible 
in gross income under this subdivision at the time of the expiration of 
the restriction or the sale or exchange at arm's length shall be reduced 
by the amount of gain includible in gross income as a result of the sale 
or exchange not at arm's length.
    (ii) The provisions of subdivision (i) of this subparagraph may be 
illustrated by the following examples:

    Example (1). On November 1, 1959, X Corporation grants to E, an 
employee, an option to purchase 100 shares of X Corporation stock at $10 
per share. Under the terms of the option, E will be subject to a binding 
commitment to resell the stock to X Corporation at the price he paid for 
it in the event that his employment terminates within 2 years after he 
acquires the stock, for any reason except his death. Evidence of this 
commitment will be stamped on the face of E's stock certificate. E 
exercises the option and acquires the stock at a time when the stock, 
determined without regard to the restriction, has a fair market value of 
$18 per share. Two years after he acquires the stock, at which time the 
stock has a fair market value of $30 per share, E is still employed by X 
Corporation. E realizes compensation upon the expiration of the 2-year 
restriction and the amount of the compensation is $800. The $800 
represents the difference between the amount paid for the stock ($1,000) 
and the fair market value of the stock (determined without regard to the 
restriction) at the time of its acquisition ($1,800), since such value 
is less than the fair market value of the stock at the time the 
restriction lapsed ($3,000).
    Example (2). Assume, in example (1), that E dies one year after he 
acquires the stock, at which time the stock has a fair market value of 
$25 per share. Since the restriction lapses upon E's death, he realizes 
compensation of $800 ($1,800 less $1,000) and this amount is includible 
in E's gross income for the taxable year closing with his death.
    Example (3). Assume that, pursuant to the exercise of an option not 
having a readily ascertainable fair market value to which this section 
applies, an employee acquires stock subject to the sole condition that, 
if he desires to dispose of such stock during the period of his 
employment, he is obligated to offer to sell the stock to his employer 
at its fair market value at the time of such sale. Since this condition 
is not a restriction which has a significant effect on value, the 
employee realizes compensation upon acquisition of the stock.
    Example (4). Assume, in example (3), that the employee is obligated 
to offer to sell the stock to his employer at its book value rather than 
at its fair market value. Since this condition amounts to a restriction 
which has a significant effect on value, the employee does not realize 
compensation upon acquisition of the stock, but he does realize such 
compensation upon the lapse of the restriction, such as, for example, 
his death or the termination of his employment.


[[Page 776]]


    (3) If the option is not exercised by the person to whom it was 
granted, but is transferred in an arm's length transaction, the employee 
realizes compensation in the amount of the gain resulting from such 
transfer of the option, and such compensation is includible in his gross 
income in accordance with his method of accounting.
    (4) If the option is not exercised by the person to whom it was 
granted, but is transferred in a transaction which is not at arm's 
length, the employee realizes compensation in the amount of the gain 
resulting from such transfer of the option, and such compensation is 
includible in his gross income in accordance with his method of 
accounting. Moreover, the employee realizes additional compensation at 
the time and in the amount determined under subparagraph (1), (2), or 
(3) of this paragraph, except that the amount of compensation determined 
under subparagraph (1), (2), or (3) of this paragraph shall be reduced 
by any amount previously includible in gross income as a result of such 
transfer of the option. For example, if in 1960 an employee is granted 
an option not having a readily ascertainable fair market value to buy a 
share of stock for $50 at a time when the stock has a fair market value 
of $100, and later in 1960 the employee transfers, in a transaction not 
at arm's length, the option to his wife for $10, the employee realizes 
compensation of $10 in 1960. If in 1961 the wife exercises the option at 
a time when the stock has a fair market value of $120, the employee 
realizes additional compensation in 1961 in the amount of $60 (the $70 
bargain spread less the $10 taxed as compensation in 1960). For the 
purpose of this subparagraph if a person other than the employee dies 
holding an unexercised option at a time when the employee is still 
living, the transfer which results by reason of the death of such person 
is a transfer in a transaction which is not at arm's length.
    (5) If there is granted an option to which this section applies, and 
the employee dies before realizing the compensation in accordance with 
the rules of this paragraph, income having the character of compensation 
is realized at the time and in the amount determined under this 
paragraph by the person who transfers or exercises the option, or the 
person who receives the property subject to a restriction which has a 
significant effect on its value. For example, this subparagraph is 
applicable:
    (i) When an option not having a readily ascertainable fair market 
value is granted to an employee, and he dies before transferring or 
exercising the option,
    (ii) When an option not having a readily ascertainable fair market 
value is granted to the employee, and he dies after the transfer of the 
option in a transaction which is not at arm's length, but before the 
option is exercised, or
    (iii) When an option not having a readily ascertainable fair market 
value is granted to another person, and the employee dies before 
realizing all of the compensation which would result from any transfer 
or exercise of the option. If the option is one which was granted to the 
employee and he dies before transferring or exercising the option, the 
option shall be considered a right to receive income in respect of a 
decedent to which the rules of section 691 apply. In any such case, if 
the option is transferred, section 691 provides that the amount received 
for such transfer or the fair market value of the property transferred 
at the time of transfer, whichever is greater, is income realized at the 
time of such transfer. Moreover, if a transfer is subject to this rule, 
it will be treated as a transfer in an arm's length transaction for the 
purpose of this paragraph.
    (6) If an option to which this section applies is exercised in part 
and transferred in part, the rules of this paragraph shall be applied as 
if there were two options--one exercised and one transferred.
    (7) Notwithstanding the other provisions of this paragraph, if this 
section is applicable because of a disqualifying disposition of stock 
acquired by the exercise of a qualified or restricted stock option, or 
acquired by the exercise of an option granted under an employee stock 
purchase plan, the taxable year of the employee for which he is required 
to include in his gross income the compensation resulting from such 
option is determined under section

[[Page 777]]

421(b) and paragraph (b) of Sec. 1.421-8 (or, in the case of taxable 
years ending before January 1, 1964, under section 421(f) and paragraph 
(e) of Sec. 1.421-5) and, in the case of a disqualifying disposition of 
a share of stock acquired by the exercise of a qualified stock option, 
the amount of such compensation shall be subject to the limitation 
provided by section 422(c)(4) and paragraph (b) of Sec. 1.422-1.
    (e) Basis. (1) If an option to which this section applies is 
exercised by the person to whom it was granted, such person's basis for 
the property so acquired shall be increased by any amount that is 
includible in the gross income of the employee under paragraph (d) of 
this section. If such person transfers such property to a person whose 
basis is the same as the transferor's basis, such transferee's basis 
shall also reflect the adjustment made by this paragraph. However, if 
such property is transferred by either of such persons at death so that 
its basis is determined under section 1014, the basis so determined 
shall not be increased by reason of this paragraph.
    (2) If an option to which this section applies is transferred in a 
transaction which is not at arm's length, the transferee who exercises 
the option shall increase his basis for the property so acquired by any 
amount that is includible in the gross income of the employee at the 
time such transferee acquires the property.
    (3) If an option to which this section applies is transferred in a 
transaction which is at arm's length, the basis of the property acquired 
by an exercise of the option shall not be increased by reason of any 
amount that is includible in this gross income of the employee under 
this section.
    (4) If an option to which this section applies has a readily 
ascertainable fair market value at the time it is granted, the basis of 
such option includes any amount includible in gross income of the 
employee under paragraph (c) of this section.
    (f) Deductions. If the employer grants an option to which this 
section applies, the employer of the employee in connection with whose 
employment the option is granted is considered to have paid compensation 
to such employee at the same time and in the same amount as such 
employee is considered under paragraph (c) or (d) of this section to 
have realized compensation. The deductibility of the amount considered 
so paid is determined under section 162 or other provision of the Code 
which is applicable to such a payment. Whether such amount may be 
deducted in the taxable year considered so paid, or whether such amount 
is a capital expenditure which is not deductible or which may be 
amortized, depends upon the nature of the transaction involved and the 
facts and circumstances of each case. If this section is applicable 
because of a disqualifying disposition of stock acquired by the exercise 
of a qualified or restricted stock option, or acquired by the exercise 
of an option granted under an employee stock purchase plan, the 
employer's taxable year for which such compensation is deductible is 
determined under section 421(b) and paragraph (b) of Sec. 1.421-8 (or, 
in the case of taxable years ending before January 1, 1964, under 
section 421(f) and paragraph (e) of Sec. 1.421-5).

(Secs. 83 and 7805 of the Internal Revenue Code of 1954 (83 Stat. 588; 
68A Stat. 917; 26 U.S.C. 83 and 7805))

[T.D. 6540, 26 FR 512, Jan. 20, 1961, as amended by T.D. 6696, 28 FR 
13451, Dec. 12, 1963; T.D. 6887, 31 FR 8787, June 24, 1966; T.D. 7554, 
43 FR 31926, July 24, 1978]



Sec. 1.421-7   Meaning and use of certain terms.

    (a) Option. (1) For purposes of sections 421 through 425, the term 
``option'' includes the right or privilege of an individual to purchase 
stock from a corporation by virtue of an offer of the corporation 
continuing for a stated period of time, whether or not irrevocable, to 
sell such stock at a price determined under paragraph (e) of this 
section, such individual being under no obligation to purchase. Such 
right or privilege, when granted, must be evidenced in writing. The 
individual who has such right or privilege is referred to as the 
optionee and the corporation offering to sell stock under such an 
arrangement is referred to as the optionor. While no particular form of 
words is necessary, the written option should express, among other 
things, an offer to sell at the option price and the

[[Page 778]]

period of time during which the offer shall remain open.
    (2) An option may be granted as part of or in conjunction with an 
employee stock purchase plan or subscription contract. See section 423.
    (3) An arrangement between a corporation and an employee may involve 
more than one option. For example, if a corporation on June 1, 1964, 
grants to an employee the right to purchase 1,000 shares of its stock on 
or after June 1, 1965, another 1,000 shares on or after June 1, 1966, 
and a further 1,000 shares on or after June 1, 1967, all shares to be 
purchased before June 1, 1968, provided the employee at the time of 
exercise of any of the purchase rights is employed by the corporation, 
such an arrangement will be construed as the grant to the employee on 
June 1, 1964, of three options, each for the purchase of 1,000 shares. 
However, if a corporation grants to an employee on January 1, 1965, the 
right to purchase 1,000 shares of its stock at $65 per share during 
1965, or at $75 per share during 1966, or at $85 per share during 1967, 
such an arrangement will be construed as the grant to the employee on 
January 1, 1965, of but one option for the purchase of 1,000 shares, 
which ceases to be outstanding when fully exercised at the price in 
effect at the time of exercise.
    (b) Statutory options. (1) The term ``statutory option'', used for 
purposes of convenience hereinafter in this section and in Secs. 1.421-8 
through 1.425-1, means a qualified stock option, as defined by section 
422(b) and Sec. 1.422-2; an option granted under an employee stock 
purchase plan, as defined by section 423(b) and Sec. 1.423-2; and a 
restricted stock option, as defined in section 424(b) and Sec. 1.424-2.
    (2) An option may qualify as a statutory option only if the option 
is not transferable (other than by will or by the laws of descent and 
distribution) by the individual to whom it is granted, and is 
exercisable, during the lifetime of such individual, only by him. See 
sections 422(b)(6), 423(b)(9), and 424(b)(2). Accordingly, an option 
which is transferable by the individual to whom it is granted during his 
lifetime, or is exercisable during such individual's lifetime by another 
person, is not a statutory option. However, in case the option or the 
plan under which the option was granted contains a provision permitting 
the individual to whom the option was granted to designate the person 
who may exercise the option after his death, neither such provision, nor 
a designation pursuant to such provision, disqualifies the option as a 
statutory option.
    (3)(i) The determination of whether an option is a statutory option 
is made as of the date such option is granted. An option which is a 
statutory option when granted does not lose its character as such an 
option by reason of subsequent events, and an option which is not a 
statutory option when granted does not become such an option by reason 
of subsequent events. See, however, paragraph (e) of Sec. 1.425-1, 
relating to modification, extension, or renewal of an option. For rules 
concerning options that are not statutory options, see Sec. 1.83-7.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example (1). S-1 Corporation is a subsidiary of S Corporation which, 
in turn, is a subsidiary of P Corporation. On June 1, 1964, P grants to 
an employee of P a statutory option to purchase a share of stock of S-1. 
On January 1, 1965, S sells a portion of the S-1 stock which it owns to 
an unrelated corporation and, as of that date, S-1 ceases to be a 
subsidiary of S. On May 1, 1965, while still employed by P, the employee 
exercises his option to purchase a share of S-1 stock. Section 421 
applies to such exercise.
    Example (2). Assume P grants an option to an employee under the same 
facts as in example (1) above, except that on June 1, 1964, S-1 is not a 
subsidiary of either S or P. Such option is not a statutory option on 
June 1, 1964. On January 1, 1965, S purchases from an unrelated 
corporation a sufficient number of shares of S-1 stock to make S-1, as 
of that date, a subsidiary of S. On May 1, 1965, while still employed by 
P, the employee exercises his option to purchase a share of S-1 stock. 
The employee has not exercised a statutory option.

    (c) Time and date of granting option. (1) For purposes of sections 
421 through 425, the words ``the date of the granting of the option'' 
and ``the time such option is granted'', and similar phrases refer to 
the date or time when the corporation completes the corporate action 
constituting an offer of stock for sale to an individual under the terms

[[Page 779]]

and conditions of a statutory option. Ordinarily, if the corporate 
action contemplates an immediate offer of stock for sale to an 
individual or to a class including such individual, or contemplates a 
particular date on which such offer is to be made, the time or date of 
the granting of the option is the time or date of such corporate action 
if the offer is to be made immediately, or the date contemplated as the 
date of the offer, as the case may be. However, an unreasonable delay in 
the giving of notice of such offer to the individual or to the class 
will be taken into account as indicating that the corporation 
contemplated that the offer was to be made at the subsequent date on 
which such notice is given.
    (2) If the corporation imposes conditions on the granting of an 
option (as distinguished from conditions governing the exercise of the 
option), such conditions shall be given effect in accordance with the 
intent of the corporation. However, under section 425(i), if the grant 
of an option is subject to approval by stockholders, the date of grant 
of the option shall be determined as if the option had not been subject 
to such approval. A condition which does not require corporate action, 
such as the approval of, or registration with, some regulatory or 
governmental agency, for example, a stock exchange or the Securities and 
Exchange Commission, is ordinarily considered a condition upon the 
exercise of the option unless the corporate action clearly indicates 
that the option is not to be granted until such condition is satisfied. 
If an option is granted to an individual upon the condition that such 
individual will become an employee of the corporation granting the 
option or of a related corporation, such option is not granted prior to 
the date the individual becomes such an employee.
    (3) In general, conditions imposed upon the exercise of an option 
will not operate to make ineffective the granting of the option. For 
example, on June 1, 1964, the A Corporation grants to X, an employee, an 
option to purchase 5,000 shares of the corporation's stock, exercisable 
by X on or after June 1, 1965, provided he is employed by the 
corporation on June 1, 1965, and provided that A's profits during the 
fiscal year preceding the year of exercise exceed $200,000. Such an 
option is granted to X on June 1, 1964, and will be treated as 
outstanding as of such date.
    (d) Stock and voting stock. For purposes of sections 421 through 
425, the term ``stock'' means capital stock of any class, including 
voting or nonvoting common or preferred stock. Except as otherwise 
provided, the term includes both treasury stock and stock of original 
issue. Special classes of stock authorized to be issued to and held by 
employees are within the scope of the term ``stock'' as used in such 
sections, provided such stock otherwise possesses the rights and 
characteristics of capital stock. For purposes of determining what 
constitutes voting stock in ascertaining whether a plan has been 
approved by stockholders or whether the limitations pertaining to voting 
power contained in sections 422(b)(7), 423(b)(3) and 424(b)(3) and the 
regulations thereunder have been met, stock which does not have voting 
rights until the happening of an event, such as the default in the 
payment of dividends on preferred stock, is not voting stock until the 
happening of the specified event. Moreover, stock which does not possess 
a general voting power, and may vote only on particular questions, is 
not voting stock. However, if such stock is entitled to vote on whether 
a stock option plan is to be adopted, it is voting stock for the purpose 
of ascertaining whether the plan has been approved by the shareholders.
    (e) Option price. (1) For purposes of sections 421 through 425, the 
term ``option price'' or ``price paid under the option'' means the 
consideration in money or other property which, pursuant to the terms of 
the option, is the price at which the stock subject to the option is 
purchased. The term ``option price'' does not include amounts paid as 
interest under a deferred payment arrangement or treated as unstated 
interest under section 483 and the regulations thereunder. Thus, for 
example, section 483 is applicable in determining whether the pricing 
requirements of section 422(b)(4), 423(b)(6), 424(b)(1), or 424(c) are 
met and is applicable in determining the basis of any stock acquired 
pursuant to the exercise of a

[[Page 780]]

statutory option. However, with respect to statutory options granted 
prior to January 1, 1965, the determination of whether the applicable 
pricing requirements are met shall be made without regard to section 
483, but section 483 shall be taken into consideration in determining 
basis for purposes of determining gain or loss.
    (2) In the case of a statutory option, any reasonable valuation 
method may be used for the purpose of determining whether at the time 
the option is granted the option price satisfies the pricing 
requirements of section 442(b)(4) (relating to qualified stock options), 
section 423(b)(6) (relating to employee stock purchase plans), or 
section 424(b)(1) (relating to restricted stock options), whichever is 
applicable, with respect to the stock subject to the option. Such 
methods include the valuation methods described in Sec. 20.2031-2 of 
this chapter (Estate Tax Regulations).
    (f) Exercise. For purposes of sections 421 through 425, the term 
``exercise'', when used in reference to an option, means the act of 
acceptance by the optionee of the offer to sell contained in the option. 
In general, the time of exercise is the time when there is a sale or a 
contract to sell between the corporation and the individual. A promise 
to pay the option price does not constitute an exercise of the option 
unless the optionee is subject to personal liability on such promise. An 
agreement or undertaking by the employee to make payments under an 
employee stock purchase plan does not constitute the exercise of an 
option so long as the payments made remain subject to withdrawal by the 
employee.
    (g) Transfer. For purposes of sections 421 through 425, the term 
``transfer'', when used in reference to the transfer to an individual of 
a share of stock pursuant to his exercise of a statutory option, means 
the transfer of ownership of such share, or the transfer of 
substantially all the rights of ownership. Such transfer must, within a 
reasonable time, be evidenced on the books of the corporation.
    (h) Employment relationship. (1) Section 421 is applicable to the 
exercise of a statutory option only if at the time the option is 
granted, the optionee is an employee of the corporation granting the 
option, or a related corporation of such corporation, unless the option 
has been assumed or a new option has been issued in its place under 
section 425(a). In case of such an assumption or issuance, the optionee 
must, at the time of such assumption or issuance, be an employee of the 
corporation so assuming or issuing the option, or a related corporation 
of such corporation. The determination of whether the optionee is an 
employee at the time the option is granted (or at the time of the 
assumption or issuance under section 425(a)) will be made in accordance 
with the rules contained in section 3401(c) and the regulations 
thereunder. As to the granting of an option conditioned upon employment, 
see paragraph (c)(2) of this section. A statutory option must be granted 
for a reason connected with the individual's employment by the 
corporation or by its related corporation.
    (2) In order to qualify for the special tax treatment of section 
421, in addition to meeting the requirements of subparagraph (1) of this 
paragraph, an individual exercising a qualified stock option or an 
option granted under an employee stock purchase plan must, at all times 
during the period beginning with the date of the granting of such option 
and ending at the time of such exercise or on the day 3 months before 
the date of such exercise, be an employee of either the corporation 
granting such option, a related corporation of such corporation, or a 
corporation or a related corporation of such corporation issuing or 
assuming a stock option in a transaction to which section 425(a) 
applies. For this purpose, the employment relationship in respect of an 
option granted in accordance with the requirements of subparagraph (1) 
of this paragraph will be treated as continuing intact while the 
individual is on military, sick leave or other bona fide leave of 
absence (such as temporary employment by the Government) if the period 
of such leave does not exceed 90 days, or, if longer, so long as the 
individual's right to reemployment with the corporation granting the 
option (or a related corporation of such corporation, or a corporation, 
or a related corporation of such corporation issuing or

[[Page 781]]

assuming a stock option in a transaction to which section 425(a) 
applies) is guaranteed either by statute or by contract. Where the 
period of leave exceeds 90 days and where the individual's right to 
reemployment is not guaranteed either by statute or by contract, the 
employment relationship will be deemed to have terminated on the 91st 
day of such leave.
    (3) For purposes of determining whether an individual meets the 
requirements of this paragraph, the term ``employer corporation'', as 
used in section 425 (e) and (f), shall be read as ``grantor 
corporation'' or ``corporation issuing or assuming a stock option in a 
transaction to which section 425(a) is applicable'', as the case may be. 
For purposes of the employment requirement, a corporation employing an 
optionee is considered a related corporation if it was a parent or 
subsidiary of the corporation granting or assuming the option during the 
entire portion of the requisite period of employment during which it was 
the employer of such optionee.
    (4) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1964, X Corporation granted a statutory 
option to A, an employee of X Corporation, to purchase a share of X 
stock. On February 1, 1965, X sold the plant where A was employed to M 
Corporation, an unrelated corporation, and A was employed by M. If A 
exercises his statutory option on June 1, 1965, section 421 is not 
applicable to such exercise, because on June 1, 1965, A is not employed 
by the corporation which granted the option or by a related corporation 
of such corporation, nor was he employed by any of such corporations 
within 3 months before June 1, 1965.
    Example (2). Assume the facts to be the same as in example (1), 
except that when A was employed by M Corporation, the option to purchase 
X stock was terminated and was replaced by an option to buy M stock in 
such circumstances that M Corporation is treated as a corporation 
issuing an option under section 425(a). If A exercises the option to 
purchase the share of M stock on June 1, 1965, section 421 is applicable 
for A is then employed by a corporation which issued an option under 
section 425(a).
    Example (3). E is an employee of P Corporation. On June 1, 1964, P 
grants E a statutory option to purchase a share of P stock. On June 1, 
1965, P acquires 100 percent of the stock of S Corporation; on such date 
S becomes a subsidiary of P. On July 1, 1965, E ceases to be employed by 
P and becomes employed by S. On October 10, 1965, while still employed 
by S, E exercises his option to buy P stock. Since E was at all times 
during the requisite period of employment an employee of either P, the 
corporation granting the option, or S, a subsidiary of the grantor 
during the period in which such corporation was E's employer, section 
421 is applicable to the exercise of the option.
    Example (4). Assume the same facts as in example (3) except assume 
that at the time E became an employee of S Corporation, S assumed E's 
option to purchase P stock under section 425(a). Section 421 is 
applicable to E's exercise of his option to buy P stock.
    Example (5). M Corporation grants a qualified stock option to E, an 
employee of such corporation. E is an officer in a reserve Air Force 
unit. E goes on military leave with his unit for 3 weeks. Regardless of 
whether E is an employee of M within the meaning of section 3401(c) and 
the regulations thereunder during such 3-week period, E's employment 
relationship with M is treated as uninterrupted during the period of E's 
military leave.
    Example (6). Assume the same facts as in example (5) and assume 
further that E's active duty status is extended indefinitely, but that E 
has an employment contract with M which provides that upon the 
termination of any military duty E may be required to serve, E will be 
entitled to reemployment with M or a parent or subsidiary of M. E 
exercises his M option while on active military duty. Irrespective of 
whether E is an employee of M within the meaning of section 3401(c) and 
the regulations thereunder at the time of such exercise or within 3 
months before such exercise, section 421 can apply to such exercise.
    Example (7). X Corporation grants a qualified stock option to A, an 
employee of X Corporation, whose employment contract provides that in 
the event of illness, A's right to reemployment with X, or a parent or 
subsidiary of X, will continue for 1 year after the time A becomes 
unable to perform his duties for X. A falls ill for 90 days. For 
purposes of section 422(a)(2), A's employment relationship with X will 
be treated as uninterrupted during the 90-day period. If A's incapacity 
extends beyond 90 days, then, for purposes of section 422(a)(2), A's 
employment relationship with X will be treated as continuing 
uninterrupted until A's reemployment rights terminate. Under section 
422(a)(2), A has 3 months in which to exercise his qualified stock 
option after his employment relationship with X (and its parent and 
subsidiary corporation) is terminated.

    (i) Related corporation. The term ``related corporation'', used for 
purposes of convenience in this section and Secs. 1.421-

[[Page 782]]

8 through 1.425-1, means a corporation which is a parent or subsidiary 
corporation (as defined by section 425 (e) and (f) and the regulations 
thereunder).

(Secs. 83 and 7805 of the Internal Rvenue Code of 1954 (83 Stat. 588; 
68A Stat. 917; 26 U.S.C. 83 and 7805))

[T.D. 6887, 31 FR 8787, June 24, 1966, as amended by T.D. 6975, 33 FR 
14779, Oct. 3, 1968; T.D. 7554, 43 FR 31927, July 24, 1978]



Sec. 1.421-8   General rules.

    (a) Effect of qualifying transfer. (1) If a share of stock is 
transferred to an individual pursuant to his exercise of a statutory 
option, and if the requirements of section 422(a) (relating to qualified 
stock options), section 423(a) (relating to employee stock purchase 
plans), or section 424(a) (relating to restricted stock option), 
whichever is applicable, are met, then--
    (i) Except as provided in section 422(c)(1) (relating to exercise of 
option when price is less than value of stock), and paragraph (e)(2) of 
Sec. 1.422-2, no income shall result at the time of the transfer of such 
share to the individual upon his exercise of the option with respect to 
such share;
    (ii) No deduction under section 162 or the regulations thereunder 
(relating to trade or business expenses) shall be allowable at any time 
to the employer corporation, a related corporation of such corporation, 
or a corporation issuing or assuming a stock option in a transaction to 
which section 425(a) and paragraph (a) of Sec. 1.425-1 (relating to 
corporate reorganizations, liquidations, etc.) applies, with respect to 
the share so transferred; and
    (iii) No amount other than the price paid under the option shall be 
considered as received by any of such corporations for the share so 
transferred.
    (2) For the purpose of this paragraph, each share of stock 
transferred pursuant to a statutory option is treated separately. For 
example, if an individual, while employed by a corporation granting him 
a statutory option, exercises the option with respect to part of the 
stock covered by the option, and if such individual exercises the 
balance of the option more than three months after leaving such 
employment, the application of section 421 to the stock obtained upon 
the earlier exercise of the option is not affected by the fact that the 
income taxes of the employer and the individual with respect to the 
stock obtained upon the later exercise of the option are not determined 
under section 421.
    (b) Effect of disqualifying disposition. (1) The disposition of a 
share of stock, acquired by the exercise of a statutory option before 
the expiration of the applicable holding period as determined under 
section 422(a)(1), 423(a)(1), or 424(a)(1), makes section 421 
inapplicable to the transfer of such share. The income attributable to 
such transfer shall be treated by the individual as income received in 
the taxable year in which such disposition occurs. Similarly, a 
deduction under section 162 attributable to the transfer of the share of 
stock pursuant to the exercise of the option shall be allowable for the 
taxable year in which such disposition occurs to the employer 
corporation, its parent or subsidiary corporation or a corporation 
issuing or assuming a stock option in a transaction to which section 
425(a) applies. In such cases, no amount shall be treated as income, and 
no amount shall be allowed as a deduction, for any taxable year other 
than the taxable year in which the disposition occurs. If the stock was 
transferred pursuant to the exercise of the option in a taxable year 
other than the taxable year of the disposition, the amount of the 
deduction shall be determined as if the employee had been paid 
compensation at the time provided in paragraph (d) of Sec. 1.421-6.
    (2) Section 421 is not made inapplicable by a transfer before the 
expiration of the applicable holding period as determined under section 
422(a)(1), 423(a)(1), or 424(a)(1), if such transfer is not a 
disposition of the stock as defined in section 425(c) and paragraph (c) 
of Sec. 1.425-1, for example, a transfer from the decendent to his 
estate or a transfer by bequest or inheritance. Similarly, a disposition 
by the executor, administrator, heir, or legatee is not a disposition by 
the decedent. In case a statutory option is exercised by the estate of 
the individual to whom the option was granted, or by a person who 
acquired the option by bequest or inheritance or by reason of the death 
of

[[Page 783]]

such individual, see paragraph (c) of this section.
    (3) For special rules relating to a disqualifying disposition of a 
share of stock acquired by the exercise of a qualified stock option, see 
paragraph (b) of Sec. 1.422-1.
    (c) Exercise by estate. (1) If a statutory option is exercised by 
the estate of the individual to whom the option was granted, or by any 
person who acquired such option by bequest or inheritance or by reason 
of the death of such individual, section 421(a) applies to such exercise 
in the same manner as if such option had been exercised by such deceased 
individual. Consequently, except as provided by section 422(c)(1) and 
paragraph (e)(2) of Sec. 1.422-2, neither the estate nor such person is 
required to include any amount in gross income as a result of a transfer 
of stock pursuant to such exercise of the option. Nor does section 
421(a) become inapplicable if such executor, administrator, or person 
disposes of the stock so acquired before the expiration of the 
applicable holding period as determined under section 422(a)(1), 
423(a)(1), or 424(a)(1). This special rule does not affect the 
applicability of section 1222, relating to what constitutes a short-term 
and long-term capital gain or loss. The executor, administrator, or such 
person need not exercise the option within three months after the death 
of the individual to whom the option was granted for section 421(a) to 
be applicable. However, the exercise of the option must be pursuant to 
the terms of the option, and any change in the terms of the option is 
subject to the rules of paragraph (e) of Sec. 1.425-1, relating to the 
modification, extension, or renewal of the option. Section 421(a) is 
applicable even though such executor, administrator, or person is not 
employed by the corporation granting the option, or a related 
corporation, either when the option is exercised or at any time. 
However, section 421(a) is not applicable to an exercise of the option 
by the estate or by such person, unless the individual to whom the 
option was granted met the employment requirements of section 422(a)(2), 
423(a)(2), or 424(a)(2), whichever is applicable, either at the time of 
his death or within three months before such time. If the option is 
exercised by a person other than the executor or administrator, or other 
than a person who acquired the option by bequest or inheritance or by 
reason of the death of such deceased individual, section 421(a) is not 
applicable to the exercise. For example, if the option is sold by the 
estate, section 421(a) does not apply to an exercise of the option by 
such buyer; but if the option is distributed by the administrator to an 
heir as part of the estate, section 421(a) is applicable to an exercise 
of the option by such heir.
    (2) Any transfer by the estate, whether a sale, a distribution of 
assets, or otherwise, of the stock acquired by its exercise of the 
option under this paragraph is a disposition of the stock. Therefore, if 
section 423(c), or 424(c)(1) is applicable, the estate must include an 
amount as compensation in its gross income. Similarly, if section 423(c) 
or 424(c)(1) is applicable in case of an exercise of the option under 
this paragraph by a person who acquired the option by bequest or 
inheritance or by reason of the death of the individual to whom the 
option was granted, there must be included in the gross income of such 
person an amount as compensation, either when such person disposes of 
the stock, or when he dies owning the stock.
    (3)(i) If, under section 422(c)(1), 423(c), or 424(c)(1), an amount 
is required to be included in the gross income of the estate or of such 
person, the estate or such person shall be allowed a deduction as a 
result of the inclusion of the value of the option in the estate of the 
individual to whom the option was granted. Such deduction shall be 
computed under section 691(c) by treating the option as an item of gross 
income in respect of a decedent under section 691 and by treating the 
amount required to be included in gross income under section 422(c)(1), 
423(c), or 424(c)(1), as an amount included in gross income under 
section 691 in respect of such item of gross income. No such deduction 
shall be allowable with respect to any amount other than an amount 
includible under section 422(c)(1), 423(c), or 424(c)(1). For the rules 
relating to the computation of a deduction under section 691(c), see 
Sec. 1.691(c)-1.

[[Page 784]]

    (ii) The application of subdivision (i) may be illustrated by the 
following example:

    Example. On June 1, 1964, E was granted an option under an employee 
stock purchase plan to purchase for $85 one share of the stock of his 
employer. On such day, the fair market value of such stock was $100 per 
share. E died on February 1, 1966, without having exercised such option. 
The option was, however, exercisable by his estate, and for purposes of 
the estate tax was valued at $30. On March 1, 1966, the estate exercised 
the option, and on March 15, 1966, sold for $150 the share of stock so 
acquired. For its taxable year including March 15, 1966, the estate is 
required by sections 421(c)(1)(B) and 423(c) to include in its gross 
income as compensation the amount of $15. During such taxable year, no 
amounts of income were properly paid, credited, or distributable to the 
beneficiaries of the estate. However, under section 421(c)(2), the 
estate is entitled to a deduction determined in the following manner. 
E's estate includes no other items of income in respect of a decedent 
referred to in section 691(a), and no deductions referred to in section 
691(b), so that the value for estate tax purposes of the option, $30, is 
also the net value of all items of income in respect of the decedent. 
The estate tax attributable to the inclusion of the option in the estate 
of E is $10. Since $15, the amount includible in gross income by reason 
of sections 421(c)(1)(B) and 423(c), is less than the value for estate 
tax purposes of the option, only \15/30\ of the estate tax attributable 
to the inclusion of the option in the estate is deductible; that is, 
\15/30\ of $10, or $5. No deduction under section 421(c)(2) is allowable 
with respect to any capital gain.

    (4)(i) In the case of an employee dying before January 1, 1957, the 
basis of any share of stock acquired by the exercise of a restricted 
stock option under this paragraph, determined under section 1011, shall 
be increased by an amount equal to the amount includible as compensation 
in his gross income under section 424(c)(1). The basis of the share 
shall not be increased by reason of the inclusion of the value of the 
restricted stock option in the estate for estate tax purposes.
    (ii)(a) In the case of an employee dying after December 31, 1956, 
the basis of any share of stock acquired by the exercise of an option 
under this paragraph, determined under section 1011, shall be increased 
by an amount equal to the portion of the basis of the option 
attributable to such share. For example, if a statutory option to 
acquire 10 shares of stock has a basis of $100, the basis of one share 
acquired by a partial exercise of the option, determined under section 
1011, would be increased by 1/10th of $100, or $10. The option acquires 
a basis, determined under section 1014(a), only if the transfer of the 
share pursuant to the exercise of such option qualifies for the special 
tax treatment provided by section 421(a). To the extent the option is so 
exercised, in whole or in part, it will acquire a basis equal to its 
fair market value at the date of the employee's death or, if an election 
is made under section 2032, its value at its applicable valuation date. 
In certain cases, the basis of the share is subject to the adjustments 
provided by (b) and (c) of this subdivision, but such adjustments are 
only applicable in the case of an option which is subject to section 
422(c)(1), 423(c), or 424 (c)(1).
     (b) If the amount which would have been includible in gross income 
under section 422(c)(1), 423(c), or 424(c)(1) had the employee exercised 
the option on the date of his death and held the share at the time of 
his death exceeds the amount which is includible in gross income under 
such section, the basis of the share, determined under (a) of this 
subdivision, shall be reduced by such excess. For example, if $15 would 
have been includible in the gross income of the employee had he 
exercised the option and held such share at the time of his death, and 
only $10 is includible under section 422(c)(1), 423(c), or 424(c)(1), 
the basis of the share, determined under (a) of this subdivision, would 
be reduced by $5. For purposes of determining the amount which would 
have been includible in gross income under section 422 (c)(1), 423(c), 
or 424(c)(1), if the employee had exercised the option and held such 
share at the time of his death, the amount which would have been paid 
for the share shall be computed as if the option had been exercised on 
the date the employee died.
    (c) If the amount includible in gross income under section 
422(c)(1), 423(c), or 424(c)(1), exceeds the portion of the basis of the 
option attributable to the share, the basis of the share, determined 
under (a) of this subdivision,

[[Page 785]]

shall be increased by such excess. Thus, if $15 is includible in gross 
income under such section, and the basis of the option with respect to 
the share is $10, the basis of the share, determined under (a) of this 
subdivision, will be increased by $5.
    (iii) If a statutory option is not exercised by the estate of the 
individual to whom the option was granted, or by the person who acquired 
such option by bequest or inheritance or by reason of the death of such 
individual, the option shall be considered to be property which 
constitutes a right to receive an item of income in respect of a 
decedent to which the rules of sections 691 and 1014(c) apply.
    (iv) The application of this subparagraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1955, the X Corporation granted to E, an 
employee, a restricted stock option to purchase a share of X 
Corporation's stock for $85. The fair market value of the X Corporation 
stock on such date was $100 per share. On June 1, 1956, E died. The fair 
market value of the X Corporation stock on such date exceeded $100 per 
share and the fair market value of the option on the applicable 
valuation date was $35. On August 1, 1964, the estate of E exercised the 
option and sold the share of X Corporation stock at a time when the fair 
market value of the share was $90. The estate is required by section 
424(c)(1) to include $5 in its gross income as compensation. Since E 
died before January 1, 1957, the basis of the share is $90 (the $85 paid 
for the stock plus the $5 includible in gross income as compensation), 
and the basis of the share is not increased by reason of the inclusion 
of the value of the option in the estate of E (see section 1014(d) (as 
in effect with respect to taxable years ending before January 1, 1957)). 
Thus, no gain or loss is realized on the disposition of the share since 
the basis of the share is equal to the sale price.
    Example (2). On June 1, 1964, the X Corporation granted to E, an 
employee, an option under its employee stock purchase plan to purchase a 
share of X Corporation stock for $85. The fair market value of X 
Corporation stock on such date was $100 per share. On June 1, 1966, E 
died. The fair market value of X Corporation stock on such date exceeded 
$100 per share and the fair market value of the option on the applicable 
valuation date was $35. On August 1, 1966, the estate of E exercised the 
option and sold the share of X Corporation stock at a time when the fair 
market value of the share was $120. The basis of the share is $120 (the 
$85 paid for the stock plus the $35 basis of the option). When the share 
is sold for $120, the estate is required to include $15 in its gross 
income as compensation. Since $15 would have been includible in E's 
gross income if he had exercised the option and held such share at the 
time of his death, subdivision (ii)(b) of this subparagraph does not 
apply. Moreover, since the $15 includible in the gross income of the 
estate does not exceed the basis of the option ($35), subdivision 
(ii)(c) of this subparagraph does not apply. Since the basis of the 
stock and the sale price are the same, no gain or loss is realized by 
the estate on the disposition of the share.
    Example (3). Assume the same facts as in example (2), except that 
the fair market value of the share of stock at the time of its sale was 
$90. The basis of the share, determined under subdivision (ii)(a) of 
this subparagraph, is $120 (the $85 paid for the stock plus the $35 
basis of the option). When the share is sold for $90, the estate is 
required to include $5 in its gross income as compensation. If the 
employee had exercised the option and held the share at the time of his 
death, $15 would have been includible in gross income as compensation 
for the taxable year ending with his death. Since such amount exceeds by 
$10 the amount which the estate is required to include in its gross 
income, subdivision (ii)(b) of this subparagraph applies, and the basis 
of the share ($120), determined under subdivision (ii)(a) of this 
subparagraph is reduced by $10. Accordingly, the basis is $110, and a 
capital loss of $20 is realized on the disposition of the share.
    Example (4). Assume the same facts as in example (2), except that 
the fair market value of the option on the applicable valuation date was 
$5, and that the fair market value of X Corporation stock on the date 
the employee died did not exceed $100. The basis of the share, 
determined under subdivision (ii)(a) of this subparagraph, is $90 (the 
$85 paid for the stock plus the $5 basis of the option). When the share 
is sold for $120, the estate is required to include $15 in its gross 
income as compensation. Since such amount exceeds by $10 the basis of 
the option, subdivision (ii)(c) of this subparagraph applies, and the 
basis of the share ($90), determined under subdivision (ii)(a) of this 
subparagraph, is increased by $10. Accordingly, the basis is $100 and a 
capital gain of $20 is realized on the disposition of the share.
    Example (5). Assume the same facts as in example (2), except that on 
June 1, 1966, the date the employee died, the fair market value of X 
Corporation stock was $98, and that on June 1, 1967, the alternate 
valuation date, the fair market value of the stock had declined 
substantially, and the fair market value of the option was $5. On August 
1, 1967, the estate of E exercised the option and sold the share when 
its fair market value was $92. The basis of the share, determined under

[[Page 786]]

subdivision (ii)(a) of this subparagraph, is $90 (the $85 paid for the 
stock plus the $5 basis of the option). When the share is sold for $92, 
the estate is required to include $7 in its gross income as 
compensation. Since $13 would have been includible in E's gross income 
if he had exercised the option and held such share at the time of his 
death, subdivision (ii)(b) of this subparagraph applies, and the basis 
of the share ($90), determined under subdivision (ii)(a) of this 
subparagraph, is reduced by $6 to $84. Furthermore, since the $7 that 
the estate is required to include in its gross income when the share is 
sold for $92 exceeds by $2 the basis of the option, subdivision (ii)(c) 
of this subparagraph applies, and the basis of the share ($84), 
determined under subdivision (ii)(a) and (ii)(b) of this subparagraph, 
is increased by $2. Accordingly, the basis is $86 and a capital gain of 
$6 is realized on the disposition of the share.

    (d) Exercise by deceased employee during lifetime. If a statutory 
option is exercised by an individual to whom the option was granted and 
the individual dies before the expiration of the applicable holding 
period as determined under section 422(a)(1), 423(a)(1), or 424(a)(1), 
section 421(a) does not become inapplicable if the executor or 
administrator of the estate of such individual, or any person who 
acquired such stock by bequest or inheritance or by reason of the death 
of such individual, disposes of such stock before the expiration of such 
applicable holding period. This rule does not affect the applicability 
of section 1222, relating to what constitutes a short-term and long-term 
capital gain or loss.
    (e) Incorporation by reference. Any requirement that an option 
expressly contain or state a prescribed limitation or term will be 
considered met if such limitation or term is set forth in a statutory 
option plan and is incorporated by reference by the option. Thus, if a 
statutory option plan expressly provides that no option granted 
thereunder shall be exercisable after five years from the date of grant, 
and if an option granted thereunder expressly provides that the option 
is granted subject to the terms and limitations of such plan, the option 
will be regarded as being, by its terms, not exercisable after the 
expiration of 5 years from the date such option is granted.

[T.D. 6887, 31 FR 8789, June 24, 1966]



Sec. 1.422-4  Qualified stock options (prior law).

    Section 422 of the Code, pertaining to qualified stock options, was 
repealed by section 11801(a)(20) of the Omnibus Budget Reconciliation 
Act of 1990. In view of the savings provision of section 11821(b) of 
that act, the regulations under the repealed section 422, which were 
removed from the Code of Federal Regulations, may be of continuing 
interest to the public. Those regulations were set forth in 26 CFR 
1.422-1 and 1.422-2 as contained in 26 CFR edition revised as of April 
1, 1991.

[T.D. 8374, 56 FR 61160, Dec. 2, 1991]



Sec. 1.422-5  Stockholder approval of incentive stock option plans.

    This section addresses the stockholder approval of incentive stock 
option plans required by section 422(b)(1) of the Internal Revenue Code. 
(Section 422 was added to the Code as section 422A by section 251 of the 
Economic Recovery Tax Act of 1981, and was redesignated as section 422 
by section 11801 of the Omnibus Budget Reconciliation Act of 1990.) The 
approval of stockholders must comply with all applicable provisions of 
the corporate charter, bylaws, and applicable State law prescribing the 
method and degree of stockholder approval required for the issuance of 
corporate stock or options. If the applicable State law does not 
prescribe a method and degree of stockholder approval in such cases an 
incentive stock option plan must be approved:
    (a) By a majority of the votes cast at a duly held stockholders' 
meeting at which a quorum representing a majority of all outstanding 
voting stock is, either in person or by proxy, present and voting on the 
plan; or
    (b) By a method and in a degree that would be treated as adequate 
under applicable State law in the case of an action requiring 
stockholder approval (i.e., an action on which stockholders would be 
entitled to vote if the action were taken at a duly held stockholders' 
meeting).

[T.D. 8374, 56 FR 61160, Dec. 2, 1991]

[[Page 787]]



Sec. 1.423-1   Applicability of section 421(a).

    (a) General rule. Subject to the provisions of section 423(c) and 
paragraph (k) of this section, the special rules of income tax treatment 
provided in section 421(a) apply with respect to the transfer of a share 
of stock to an individual pursuant to his exercise of an option granted 
after December 31, 1963, under an employee stock purchase plan provided 
that the following conditions are satisfied--
    (1) The individual must make no disposition of such share within 2 
years from the date of the granting of the option, nor within 1 year (6 
months for taxable years beginning before 1977; 9 months for taxable 
years beginning in 1977) after the transfer of such share to him; and
    (2) At all times during the period beginning with the date of the 
granting of the option and ending on the day three months before the 
date of such exercise, the individual must be an employee of either the 
corporation granting the option, a related corporation of such 
corporation, or a corporation or a related corporation of such 
corporation issuing or assuming a stock option in a transaction to which 
section 425(a) applies.
    (b) Cross-references. For rules relating to the employment 
relationship, see paragraph (h) of Sec. 1.421-7. For rules relating to 
the effect of a disqualifying disposition, see section 421(b) and 
paragraph (b) of Sec. 1.421-8. For definition of the term 
``disposition'', see section 425(c) and paragraph (c) of Sec. 1.425-1.

[T.D. 6887, 31 FR 8798, June 24, 1966, as amended by T.D. 7728, 45 FR 
72650, Nov. 3, 1980]



Sec. 1.423-2   Employee stock purchase plan defined.

    (a) In general. (1) The term ``employee stock purchase plan'' means 
a plan which meets the requirements of paragraphs (1) through (9) of 
section 423(b). If the terms of the plan do not satisfy the requirements 
of paragraphs (3) through (9) of section 423(b), such requirements may 
be satisfied by the terms of an offering made under such plan. However, 
in such a case, such requirements will be treated as satisfied only with 
respect to options exercised under such offering.
    (2) The determination of whether a particular option is an option 
granted under an employee stock purchase plan is made at the time such 
option is granted. If the terms of an option are inconsistent with the 
terms of the employee stock purchase plan or an offering under such a 
plan, the option will not be treated as granted under an employee stock 
purchase plan. If such an option is granted to an employee who is 
entitled to the grant of an option under the terms of the plan or 
offering, and such employee is not granted an option under such offering 
which qualifies as an option granted under an employee stock purchase 
plan, such offering will not meet the requirements of section 423(b)(4). 
Accordingly, none of the options granted under such offering will be 
eligible for the special tax treatment of section 423(b)(4). If such an 
option is granted to an individual who is not entitled to the grant of 
an option under the terms of the plan or offering, such option will not 
be treated as an option granted under an employee stock purchase plan, 
and the grant of the option will not disqualify the plan or the options 
granted under such plan or offering. For example, an option granted to 
an individual who is ineligible to receive an option under an employee 
stock purchase plan by reason of his ownership of 5 percent or more of 
the voting power or value of the stock of the grantor corporation (or a 
related corporation of such corporation), will not be treated as an 
option granted under an employee stock purchase plan, and the grant of 
such an option will not disqualify options granted under such plan from 
the special tax treatment of section 421. If all the options granted 
under an offering do not give the respective optionees the same rights 
and privileges, none of the options granted under such offering will be 
treated as having been granted under an employee stock purchase plan. 
If, at the time an option is granted, it qualifies as an option granted 
under an employee stock purchase plan, but the terms of the option are 
not in fact met, the option will not qualify for the special tax 
treatment of section 421. However, the failure of

[[Page 788]]

such an option to qualify for the special tax treatment of section 421, 
will not disqualify other options granted under the plan.
    (b) Options restricted to employees. An employee stock purchase plan 
must provide that options are to be granted only to employees of the 
employer corporation or of its related corporations to purchase stock in 
any such corporation. If such a provision is not included in the terms 
of the plan, the plan will not be an employee stock purchase plan and 
options granted under such plan will not qualify for the special tax 
treatment of section 421. For rules relating to the employment 
requirement, see paragraph (h) of Sec. 1.421-7.
    (c) Stockholder approval. (1) An employee stock purchase plan must 
be approved by the stockholders of the granting corporation within 12 
months before or after the date such plan is adopted. The approval of 
the stockholders must comply with all applicable provisions of the 
corporate charter, bylaws and applicable State law prescribing the 
method and degree of stockholder approval required for the issuance of 
corporate stock or options. If the applicable State law does not 
prescribe a method and degree of stockholder approval in such cases an 
employee stock purchase plan must be approved--
    (i) By a majority of the votes cast at a duly held stockholder's 
meeting at which a quorum representing a majority of all outstanding 
voting stock is, either in person or by proxy, present and voting on the 
plan; or
    (ii) By a method and in a degree that would be treated as adequate 
under applicable State law in the case of an action requiring 
stockholder approval (i.e., an action on which stockholders would be 
entitled to vote if the action were taken at a duly held stockholders' 
meeting).
    (2) The plan required by section 423 must be approved within 12 
months before or after the date the plan is adopted. Ordinarily, a plan 
is adopted when approved by the board of directors and the date of such 
board action will be the reference point for determining whether 
stockholder approval comes within the 12-month period.
    (3) The plan as adopted and approved must designate the aggregate 
number of shares which may be issued under the plan, and the 
corporations or class of corporations whose employees will be offered 
options under such plan. A plan which merely provides that the number of 
shares which may be issued under options shall not exceed a stated 
percentage of the shares outstanding at the time of each offering or 
grant under the plan will not satisfy the requirement that the plan 
state the aggregate number of shares which may be issued under options. 
However, the maximum number of shares which may be issued under the plan 
may be stated in terms of a percentage of either the authorized, issued 
or outstanding shares at the date of the adoption of the plan. The 
provisions relating to the aggregate number of shares to be issued under 
the plan and the employees (or class of employees) eligible to receive 
options under the plan, are the only provisions of a stock option plan 
which require stockholder approval for purposes of section 423(b)(1).
    (4) Any increase in the aggregate number of shares which may be 
issued under the plan (other than an increase merely reflecting a change 
in capitalization such as a stock dividend or stock split-up) will be 
treated as the adoption of a new plan requiring approval of the 
stockholders within 12 months of such adoption. Similarly, a change in 
the designation of corporations whose employees may be offered options 
under the plan will be treated as the adoption of a new plan requiring 
stockholder approval unless the plan provides that designations of 
participating corporations may be made from time to time from among a 
group consisting of the grantor corporation and its parent or subsidiary 
corporations. The group from among which such changes and designations 
are permitted without additional stockholder approval may include 
corporations having become parents or subsidiaries of the grantor after 
the adoption and approval of the plan. Any other changes in the terms of 
an employee stock purchase plan may be made without such changes being 
considered the adoption of a new plan.

[[Page 789]]

    (5) A plan which otherwise meets the requirements of section 423(b) 
and this section may be used as an employee stock purchase plan although 
the adoption and approval of such plan occurred before January 1, 1964.
    (d) Options granted to certain shareholders. (1) An employee stock 
purchase plan must by its terms provide that no employee can be granted 
an option if such employee, immediately after the option is granted, 
owns stock possessing 5 percent or more of the total combined voting 
power or value of all classes of stock of the employer corporation or 
its parent or subsidiary corporation. In determining whether the stock 
ownership of an employee equals or exceeds this 5 percent limit, the 
rules of section 425(d) (relating to attribution of stock ownership) 
shall apply, and stock which the employee may purchase under outstanding 
options (whether or not such options qualify for the special tax 
treatment afforded by section 421(a)) shall be treated as stock owned by 
the employee. An option is outstanding for purposes of section 423(b)(3) 
although under its terms it may be exercised only in installments or 
after the expiration of a fixed period of time. If an option is granted 
to an individual whose stock ownership (as determined under this 
paragraph for purposes of section 423(b)(3)) exceeds the limitation of 
section 423(b)(3), no portion of such option will be treated as having 
been granted under an employee stock purchase plan.
    (2) The determination of the percentage of the total combined voting 
power or value of all classes of stock of his employer corporation (or a 
related corporation of such corporation) that is owned by the individual 
is made by comparing the voting power or value of the shares owned (or 
treated as owned) by the individual to the aggregate voting power or 
value of all shares actually issued and outstanding immediately after 
the grant of the option to such individual. The aggregate voting power 
or value of all shares actually issued and outstanding immediately after 
the grant of the option does not include the voting power or value of 
treasury shares or shares authorized for issue under outstanding options 
held by the individual or any other person.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). E, an employee of M Corporation, owns 6,000 shares of 
the common stock of M Corporation, the only class of M stock 
outstanding. M has 100,000 shares of its common stock outstanding. Since 
E owns 6 percent of the combined voting power or value of all classes of 
M Corporation stock, M cannot grant an option to E under M's employee 
stock purchase plan. If E's father and brother each owned 3,000 shares 
of M stock and E owned no M stock in his own name, the result in this 
case would be the same, since under section 425(d) a person is treated 
as owning stock held by his father and his brother. Similarly, the 
result would be the same if, instead of actually owning 6,000 shares, E 
merely held an option on 6,000 shares of M stock, irrespective of 
whether the transfer of stock under such option could qualify for the 
special tax treatment of section 421, since section 423(b)(3) provides 
that stock which the employee may purchase under outstanding options 
shall be treated as stock owned by such employee.
    Example (2). Assume the same facts as in example (1) and assume 
further that M is a subsidiary corporation of P Corporation. 
Irrespective of whether E owns any P stock, E cannot receive an option 
from P under P's employee stock purchase plan since he owns 5 percent of 
the total combined voting power of all classes of stock of a subsidiary 
of P Corporation, i.e., M Corporation. Thus, an individual who owns (or 
is treated as owning) stock in excess of the limitation of section 
423(b)(3), in any corporation in a group of corporations, consisting of 
a parent and its subsidiary corporations, cannot receive an option under 
an employee stock purchase plan from any corporation in the group.
    Example (3). F is an employee of R Corporation. R has only one class 
of stock, of which 100,000 shares are issued and outstanding. Assuming F 
owns no stock in R or in any parent or subsidiary of R for purposes of 
section 423(b)(3), R can grant an option to F under its employee stock 
purchase plan for 4,999 shares, since immediately after the grant of the 
option, F would not own 5 percent or more of the combined voting power 
or value of all classes of R stock actually issued and outstanding at 
such time. The 4,999 shares which F would be treated as owning under 
section 423(b)(3) would not be added to the 100,000 shares actually 
issued and outstanding immediately after the grant for purposes of 
determining whether F's stock ownership exceeds the limitation of 
section 423(b)(3).
    Example (4). Assume the same facts as in example (3) and assume 
further that on June 1, 1965, R grants F an option, purportedly

[[Page 790]]

under its employee stock purchase plan, for 5,000 shares. No portion of 
this option will be treated as granted under an employee stock purchase 
plan.

    (e) Employees covered by plan. (1) Subject to the limitations of 
section 423(b) (3), (5) and (8), an employee stock purchase plan must, 
by its terms, provide that options are to be granted to all employees of 
any corporation which grants options to any of its employees by reason 
of their employment by such corporation except that one or more of the 
following categories of employees may be excluded from the coverage of 
the plan:
    (i) Employees who have been employed less than 2 years;
    (ii) Employees whose customary employment is 20 hours or less per 
week;
    (iii) Employees whose customary employment is for not more than 5 
months in any calendar year;
    (iv) Officers;
    (v) Persons whose principal duties consist of supervising the work 
of other employees; and
    (vi) Highly compensated employees.

No option granted under a plan or offering which excludes from 
participation any employees, other than those who may be excluded under 
section 423(b)(4) and this paragraph, and those barred from 
participation by reason of section 423(b) (3), (5), and (8) and 
paragraphs (d), (f) and (i) of this section, can be regarded as having 
been granted under an employee stock purchase plan. If an option is not 
granted to any employee who is entitled to the grant of an option under 
the terms of the plan or offering, none of the options granted under 
such offering will be treated as having been granted under an employee 
stock purchase plan. Furthermore, no option will be considered as having 
been granted under an employee stock purchase plan if the option was 
granted in connection with an offering made after September 28, 1979 
with respect to which employees, otherwise eligible, are denied 
participation to any extent because of their continuing participation or 
eligibility for participation in a prior plan or offering (including a 
prior plan or offering of a related corporation). However, a plan which, 
by its terms, permits all eligible employees to elect to participate in 
an offering will not violate the requirements of this paragraph solely 
because eligible employees who elect not to participate in the offering 
are not granted options pursuant to such offering.
    (2) For purposes of section 423(b)(3) the existence of the 
employment relationship between an individual and the corporation 
participating under the plan will be determined under paragraph (h) of 
Sec. 1.421-7 (relating to employment relationship).
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). M Corporation has a stock purchase plan which meets all 
the requirements of section 423(b) except that by its terms, options are 
not required to be granted to employees whose weekly rate of pay is less 
than $100. As a matter of corporate practice, M grants options under its 
plan to all employees, irrespective of their weekly rate of pay. M's 
plan is not an employee stock purchase plan.
    Example (2). Assume the same facts as in example (1) and assume 
further that the first offering under M's plan provides by its terms 
that options will be granted to all employees of M Corporation. With 
respect to options exercised under such offering the terms of such 
offering will be treated as part of the terms of M's plan. Accordingly, 
stock transferred pursuant to options exercised under such offering will 
be treated as stock transferred pursuant to the exercise of options 
granted under an employee stock purchase plan for purposes of section 
421.

    (f) Equal rights and privileges. (1) An employee stock purchase plan 
must, by its terms, provide that all employees granted options under 
such plan shall have the same rights and privileges; however, a plan 
will not fail to satisfy this requirement merely because the amount of 
stock which may be purchased by any employee under such plan is 
determined on the basis of a uniform relationship to the total 
compensation, or the basic or regular rate of compensation of employees, 
or because the plan provides that no employee may purchase more than a 
maximum amount of stock fixed under the plan. Thus, the provisions 
applying to one option under an offering (such as the provisions 
relating to the method of payment for the stock and the determination of 
the purchase price per share) must apply to all other options

[[Page 791]]

under such offering in the same manner. If all the options granted under 
a plan or offering do not, by their terms, give the respective optionees 
the same rights and privileges, none of such options shall be treated as 
having been granted under an employee stock purchase plan for purposes 
of section 421.
    (2) The requirements of section 423(b)(5) and this paragraph do not 
prevent the maximum amount of stock which an employee may purchase from 
being determined on the basis of a uniform relationship to the total 
compensation, or the basic or regular rate of compensation, of all 
employees. For example, if an employee stock purchase plan provides that 
the maximum amount of stock which each employee may purchase under the 
offering is one share for each $100 of annual gross pay, options granted 
under such offering will be treated as meeting the requirement of 
section 423(b)(5). However, such a provision must not exclude employees 
from participation under the plan or offering. For example, a plan which 
provides for the grant of options based on one share for each $100 of 
annual gross pay in excess of $10,000 will not meet the requirements of 
section 423(b)(5).
    (3)(i) Except as provided in paragraph (f)(3)(ii) of this section, a 
plan permitting one or more employees to apply sums which were withheld 
under an earlier plan or offering towards the purchase of additional 
stock under the current plan or offering will be a violation of equal 
rights and privileges unless all employees in the current plan or 
offering are permitted to make payments in an amount not less than that 
which any employee is allowed to carry over, to be applied to the 
purchase of shares under the current plan or offering.
    (ii) A plan will not fail to satisfy the requirements of this 
section merely because one or more employees are permitted to apply 
sums, in an amount representing a fractional share, which were withheld 
under an earlier plan or offering toward the purchase of additional 
stock under the current plan or offering.
    (4)(i) Section 423(b)(5) does not prohibit the delaying of the grant 
of an option to any employee who is barred from being granted an option 
solely by reason of such employee's failing to meet a minimum service 
requirement until such employee meets such requirement.
    (ii) The provision of this paragraph (4) may be illustrated by the 
following example:

    Example. N Corporation has an employee stock purchase plan which 
provides that options to purchase stock in an amount equal to ten 
percent of an employee's annual salary at a price equal to 85 percent of 
the fair market value at the time the option is granted will be granted 
to all employees other than those who have been employed less than 18 
months. In addition, the plan provides that employees who have not yet 
met the minimum service requirements on the date the options are 
initially granted will be granted similar options on the date such 
employment has been attained. Such plan meets the requirements of 
section 423(b)(5).

    (g) Option price. (1) An employee stock purchase plan must, by its 
terms, provide that the option price will not be less than the lesser 
of--
    (i) An amount equal to 85 percent of the fair market value of the 
stock at the time such option is granted, or
    (ii) An amount which under the terms of the option may not be less 
than 85 percent of the fair market value of the stock at the time such 
option is exercised.

For definition of the term ``option price'', and general rules relating 
to such term, see paragraph (e) of Sec. 1.421-7. For rules relating to 
the determination of when an option is granted, see paragraph (c) of 
Sec. 1.421-7. Any option which does not meet the minimum pricing 
requirements of section 423(b)(6) and this paragraph will not be treated 
as granted under an employee stock purchase plan irrespective of whether 
the plan itself or the offering satisfies such requirements. If such an 
option is granted to an employee who is entitled to the grant of an 
option under the terms of the plan or offering, and such employee is not 
granted an option under such offering which qualifies as an option 
granted under an employee stock purchase plan, such offering will not 
meet the requirements of section 423(b)(4). Accordingly, none of the 
options granted under such offering

[[Page 792]]

will be eligible for the special tax treatment of section 423(b)(4).
    (2) The option price may be stated either as a percentage or as a 
dollar amount. If the option price is stated as a dollar amount, the 
requirement of section 423(b)(6) and this paragraph can only be met by a 
plan or offering in which the price is fixed at not less than 85 percent 
of the fair market value of the stock at the time the option is granted. 
If the fixed price is less than 85 percent of the fair market value of 
the stock at grant, the option cannot meet the requirement of section 
423(b)(6) even if a decline in the fair market value of the stock 
results in such fixed price being not less than 85 percent of the fair 
market value of the stock at the time the option is exercised, since 
such a result was not certain to occur under the terms of the option.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). M Corporation has an employee stock purchase plan which 
provides that the option price will be 85 percent of the fair market 
value of the stock at grant, or 85 percent of the stock at exercise, 
whichever amount is the lesser. Upon the exercise of an option issued 
under M's plan, M agrees to accept an amount which is less than the 
minimum amount allowable under the terms of such plan. Notwithstanding 
that the option was issued under an employee stock purchase plan, the 
transfer of stock pursuant to the exercise of such option does not 
satisfy the requirement of section 423(b)(6) and cannot qualify for the 
special tax treatment of section 421.
    Example (2). Assume the same facts as in example (1) and assume 
further that at the time of grant, the fair market value of M 
Corporation stock is $100 per share and that the option price is set at 
85 percent of the fair market value of M stock at exercise, but not less 
than $80 per share. The option satisfies the requirement of section 
422(b)(6), and can qualify for the special tax treatment of section 421.
    Example (3). Assume the same facts as in example (2), except assume 
that the option price is set at 85 percent of the fair market value of M 
stock at exercise, but not more than $80 per share. This option cannot 
satisfy the requirement of section 423(b)(6) irrespective of whether, at 
the time the option is exercised, 85 percent of the fair market value of 
M stock is $80 or less.

    (h) Option period. An employee stock purchase plan must, by its 
terms, provide that options granted under such plan cannot be exercised 
after the expiration of 27 months from the date of grant unless, under 
the terms of such plan, the option price is to be not less than 85 
percent of the fair market value of the stock at the time of the 
exercise of the option. If the option price is to be not less than 85 
percent of the fair market value of the stock at the time the option is 
exercised, then the option period provided under the plan must not 
exceed 5 years from the date of grant. If the requirement of section 
423(b)(7) is not met by the terms of the plan or offering, options 
issued under such plan or offering will not be treated as options 
granted under an employee stock purchase plan irrespective of whether 
such options, by their terms, are exercisable beyond the period 
allowable under section 423(b)(7) and this paragraph. An option which 
provides that the option price is to be not less than 85 percent of the 
fair market value of the stock at exercise may have an option period of 
5 years irrespective of whether the fair market value of the stock at 
exercise is more or less than the fair market value of such stock at 
grant. However, if the option provides that the option price is to be 85 
percent of the fair market value of the stock at exercise, but not more 
than some other fixed amount, then irrespective of the price paid on 
exercise, the option period must not be more than 27 months.
    (i) Restriction on amount of optioned stock. (1) Under section 
423(b)(8), an employee stock purchase plan must, by its terms, provide 
that no employee may be permitted to purchase stock under all the 
employee stock purchase plans of his employer corporation and its 
related corporations at a rate which exceeds $25,000 in fair market 
value of such stock (determined at the time the option is granted) for 
each calendar year in which any such option granted to such individual 
is outstanding at any time. In applying the limitation of section 
423(b)(8)--
    (i) The right to purchase stock under an option is deemed to accrue 
when the

[[Page 793]]

option (or any portion thereof) first becomes exercisable during the 
calendar year;
    (ii) The right to purchase stock under an option accrues at the rate 
provided in the option, but in no case may such rate exceed $25,000 of 
fair market value of such stock (determined at the time such option is 
granted) for any one calendar year; and
    (iii) A right to purchase stock which has accrued under one option 
granted pursuant to the plan may not be carried over to any other 
option.

If an option is granted under an employee stock purchase plan which 
satisfies the requirement of section 423(b)(8), but such option gives 
the optionee the right to buy stock in excess of the maximum rate 
allowable under such section and this paragraph, no portion of such 
option will be treated as having been granted under an employee stock 
purchase plan. Furthermore, if the option was granted to an employee 
entitled to the grant of an option under the terms of the plan or 
offering, and such employee is not granted an option under such offering 
which qualifies as an option granted under an employee stock purchase 
plan, such offering will not meet the requirements of section 423(b)(4). 
Accordingly, none of the options granted under such offering will be 
eligible for the special tax treatment of section 421.
    (2) The limitation of section 423(b)(8) and this paragraph applies 
only to options granted under employee stock purchase plans and does not 
limit the amount of stock which an employee may purchase under qualified 
stock options (as defined in section 422(b)), restricted stock options 
(as defined in section 424(b)), or any other stock options (except those 
to which section 423 applies). Stock purchased under options to which 
section 423 does not apply will not limit the amount which an employee 
may purchase under an employee stock purchase plan, except for purposes 
of the 5-percent stock ownership provision of section 423(b)(3).
    (3) Under the limitation of section 423(b)(8), an individual may 
purchase up to $25,000 of stock (based on the fair market value of such 
stock at the time the option was granted) in each calendar year during 
which an option granted to such individual under an employee stock 
purchase plan is outstanding. Alternatively, an individual may purchase 
more than $25,000 of stock (based on the fair market value of such stock 
at the time the option was granted) in a calendar year, so long as the 
total amount of stock which he purchases does not exceed $25,000 in fair 
market value of such stock (determined at the time the option was 
granted) for each calendar year in which the option was outstanding. If 
in any calendar year the individual holds two or more outstanding 
options granted under employee stock purchase plans of his employer 
corporation, or a related corporation of such corporation, his purchases 
of stock attributable to such year under all such options must not 
exceed $25,000 in fair market value of such stock (determined at the 
time such options were granted). Under an employee stock purchase plan, 
an individual may not purchase stock in anticipation that the option 
will be outstanding for some future year. Thus, the individual may 
purchase only the amount of stock which does not exceed the limitation 
of section 423(b)(8) for the year of the purchase and for preceding 
years during which the option was outstanding. Thus, the amount of stock 
which may be purchased under an option depends on the number of years in 
which the option is actually outstanding. The amount of stock which may 
be purchased under an employee stock purchase plan may not be increased 
by reason of the failure to grant an option in an earlier year under 
such plan, or by reason of the failure to exercise an earlier option. 
For example, if an option is granted to an individual and expires 
without having been exercised at all, the failure to exercise the option 
does not increase the amount of stock which such individual may be 
permitted to purchase under an option granted in a year following the 
year of such expiration. If an option granted under an employee stock 
purchase plan is outstanding in more than one calendar year, stock 
purchased pursuant to the exercise of such an option will be applied 
first, to the extent allowable

[[Page 794]]

under section 423(b)(8) and this paragraph, against the $25,000 
limitation for the earliest year in which such option was outstanding, 
then, against the $25,000 limitation for each succeeding year, in order. 
For example, if an individual purchases $60,000 in fair market value of 
stock (determined at the time the option was granted) by the exercise of 
an option granted under an employee stock purchase plan of his employer 
corporation, and if such option was outstanding in 3 calendar years, 
then $25,000 in fair market value of such stock (determined at the time 
the option was granted) will be attributed to the first calendar year in 
which such option was outstanding, another $25,000 in fair market value 
of such stock will be attributed to the second calendar year in which 
such option was outstanding, and the remaining $10,000 in fair market 
value of such stock will be attributed to the last calendar year in 
which such option was outstanding. Thus, the individual may receive a 
right under another option granted under such employee stock purchase 
plan (or under an employee stock purchase plan of a parent or subsidiary 
corporation of his employer corporation) entitling him to purchase 
another $15,000 in fair market value of such stock (determined as of the 
date such option is granted) for such last calendar year.
    (4) The application of section 423(b)(8) and this paragraph may be 
illustrated by the following examples:

    Example (1). Assume that P Corporation maintains an employee stock 
purchase plan and that E is employed by P. On June 1, 1964, P grants E 
an option under the plan to purchase a total of 750 shares of P stock at 
$85 per share. On such date, the fair market value of P stock is $100 
per share. The option provides that it cannot be exercised after May 31, 
1966. Under section 423(b)(8), the option must not permit E to purchase 
more than 250 shares of P stock during the calendar year 1964, since 250 
shares are equal to $25,000 in fair market value of P stock determined 
at the time of grant. During the calendar year 1965, E may purchase 
under such option an amount of P stock equal to the difference between 
$50,000 in fair market value of P stock (determined at the time the 
option was granted) and the fair market value of P stock (determined at 
the time of grant of the option) purchased during 1964. During the 
calendar year 1966, E may purchase an amount of P stock equal to the 
difference between $75,000 in fair market value of such stock 
(determined at the time of grant of the option) and the total amount of 
the fair market value of such stock (determined at the time of grant of 
the option) purchased under such option during the calendar years 1964 
and 1965. E may purchase $25,000 of stock for the year 1964 and $25,000 
of stock for the year 1966, although the option was outstanding for only 
a part of each of such years. However, E may not be granted another 
option under an employee stock purchase plan of P or a related 
corporation to purchase stock of any of such corporations during the 
calendar years 1964, 1965, and 1966, so long as the option granted June 
1, 1964, is outstanding. If this option permitted E to purchase only 
$15,000 of P's stock for each year it is outstanding, then E could be 
granted another option by P, or by a related corporation, in 1964, 
permitting him to purchase an additional $10,000 of stock for each year 
it is outstanding.
    Example (2). Assume the same facts as in example (1), and assume 
further that the option granted to E in 1964 is terminated in 1965 
without any part of such option having been exercised, and that 
subsequent to such termination and during 1965, E is granted another 
option under P's employee stock purchase plan. Under such option, E may 
be permitted to purchase $25,000 of stock for 1965. On the other hand, 
if, in 1966, E exercised the option granted to him in 1964 and purchased 
600 shares of P stock, 500 shares, the maximum amount of stock which 
could have been purchased in 1965 under the option, is treated as having 
been purchased for the years 1964 and 1965. Thus, only 100 shares of the 
stock are treated as having been purchased for 1966, and E may be 
permitted under the new option to purchase for 1966 stock having a fair 
market value of $15,000 at the time the new option is granted.

    (j) Restriction on transferability. An employee stock purchase plan 
must, by its terms, provide that options granted under such plan are not 
transferable by the optionee otherwise than by will or the laws of 
descent and distribution, and must be exercisable, during his lifetime, 
only by him. For general rules relating to the restriction on 
transferability required by section 423(b)(9), see paragraph (b)(2) of 
Sec. 1.421-7. For a limited exception to the requirement of section 
423(b)(9), see section 425(h)(3).
    (k) Special rule where option price is between 85 percent and 100 
percent of value of stock. (1)(i) If all the conditions necessary for 
the application of section 421(a) exist, section 423(c) provides 
additional rules which are applicable in cases where, at the time the 
option is

[[Page 795]]

granted, the option price per share is less than 100 percent (but not 
less than 85 percent) of the fair market value of such share. In such 
case, upon the disposition of such share by the individual after the 
expiration of the 2-year and the 1 year (6 months for taxable years 
beginning before 1977; 9 months for taxable years beginning in 1977) 
holding periods, or upon his death while owning such share (whether 
occurring before or after the expiration of such periods), there shall 
be included in the individual's gross income as compensation (and not as 
gain upon the sale or exchange of a capital asset) the lesser of--
    (a) The amount, if any, by which the price paid under the option was 
exceeded by the fair market value of the share at the time the option 
was granted, or
    (b) The amount, if any, by which the price paid under the option was 
exceeded by the fair market value of the share at the time of such 
disposition or death.

For purposes of applying the rules of section 423(c) and this paragraph, 
if the option price is not fixed or determinable at the time the option 
is granted, the option price will be computed as if the option had been 
exercised at such time. The amount of compensation resulting from the 
application of section 423(c) and this paragraph shall be included in 
the individual's gross income for the taxable year in which the 
disposition occurs, or for the taxable year closing with his death, 
whichever event results in the application of section 423(c).
    (ii) The application of the special rules provided in section 423(c) 
shall not affect the rules provided in section 421(a) with respect to 
the individual exercising the option, the employer corporation, or its 
parent or subsidiary corporation. Thus, notwithstanding the inclusion of 
an amount as compensation in the gross income of an individual, as 
provided in section 423(c), no income results to the individual at the 
time the stock is transferred to him, and no deduction under section 162 
is allowable at any time to the employer corporation or its parent or 
subsidiary with respect to such amount.
    (iii) If, during his lifetime, the individual exercises an option 
granted under an employee stock purchase plan, but such individual dies 
before the stock is transferred to him pursuant to his exercise of the 
option, the transfer of such stock to the individual's executor, 
administrator, heir, or legatee is deemed, for the purpose of sections 
421 and 423, to be a transfer of the stock to the individual exercising 
the option and a further transfer by reason of death from such 
individual to his executor, administrator, heir, or legatee.
    (2) If the special rules provided in section 423(c) are applicable 
to the disposition of a share of stock by an individual, the basis of 
such share in the individual's hands at the time of such disposition, 
determined under section 1011, shall be increased by an amount equal to 
the amount includible as compensation in his gross income under section 
423(c). However, the basis of a share of stock acquired after the death 
of an employee by the exercise of an option granted to such employee 
under an employee stock purchase plan shall be determined in accordance 
with the rules of section 421(c) and paragraph (c) of Sec. 1.421-8. If 
the special rules provided in section 423(c) are applicable to a share 
of stock upon the death of an individual, the basis of such share in the 
hands of the estate or the person receiving the stock by bequest or 
inheritance shall be determined under section 1014, and shall not be 
increased by reason of the inclusion upon the decedent's death of any 
amount in his gross income under section 423(c). See example (9) of this 
paragraph with respect to the determination of basis of the share in the 
hands of a surviving joint owner.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1964, the X Corporation grants to E, an 
employee, an option under X's employee stock purchase plan to purchase a 
share of X Corporation's stock for $85. The fair market value of the X 
Corporation stock on such date is $100 per share. On June 1, 1965, E 
exercises the option and on that date the X Corporation transfers the 
share of stock to E. On January 1, 1967, E sells the share for $150, its 
fair market value on that date. E makes his income tax return

[[Page 796]]

on the basis of the calendar year. The income tax consequences to E and 
X Corporations are as follows: (i) compensation in the amount of $15 is 
includible in E's gross income for 1967, the year of the disposition of 
the share. The $15 represents the difference between the option price 
($85) and the fair market value of the share on the date the option was 
granted ($100), since such value is less than the fair market value of 
the share on the date of disposition ($150). For the purpose of 
computing E's gain or loss on the sale of the share, E's cost basis of 
$85 is increased by $15, the amount includible in E's gross income as 
compensation. Thus, E's basis for the share is $100. Since the share was 
sold for $150, E realizes a gain of $50, which is treated as long-term 
capital gain; (ii) the X Corporation is entitled to no deduction under 
section 162 at any time with respect to the share transferred to E.
    Example (2). Assume the same facts as in example (1), except assume 
that E sells the share of X Corporation stock on January 1, 1968, for 
$75, its fair market value on that date. Since $75 is less than the 
option price ($85), no amount in respect of the sale is includable as 
compensation in E's gross income for 1968. E's basis for determining 
gain or loss on the sale is $85. Since E sold the share for $75, E 
realized a loss of $10 on the sale, which loss is treated as a long-term 
capital loss.
    Example (3). Assume the same facts as in example (1), except assume 
that the option provides that the option price shall be 90 percent of 
the fair market value of the stock on the day the option is exercised. 
On June 1, 1965, when the option is exercised, the fair market value of 
the stock is $120 per share so that E pays $108 for the share of the 
stock. Compensation in the amount of $10 is includible in E's gross 
income for 1967, the year of the disposition of the share. This is 
determined in the following manner: The excess of the fair market value 
of the stock at the time of the disposition ($150) over the price paid 
for the share ($108) is $42; and the excess of the fair market value of 
the stock at the time the option was granted ($100) over the option 
price, computed as if the option had been exercised at such time ($90), 
is $10. Accordingly, $10, the lesser, is includible in gross income. In 
this situation, E's cost basis of $108 is increased by $10, the amount 
includible in E's gross income as compensation. Thus, E's basis for the 
share is $118. Since the share was sold for $150, E realizes a gain of 
$32, which is treated as long-term capital gain.
    Example (4). Assume the same facts as in example (1), except assume 
that instead of selling the share on January 1, 1967, E makes a gift of 
the share on that day. In such case $15 is includible as compensation in 
E's gross income for 1967. E's cost basis of $85 is increased by $15, 
the amount includible in E's gross income as compensation. Thus, E's 
basis for the share is $100, which becomes the donee's basis, as of the 
time of the gift, for determining gain or loss.
    Example (5). Assume the same facts as in example (2) except assume 
that instead of selling the share on January 1, 1968, E makes a gift of 
the share on that date. Since the fair market value of the share on that 
day ($75) is less than the option price ($85), no amount in respect of 
the disposition by way of gift is includible as compensation in E's 
gross income for 1968. E's basis for the share is $85, which becomes the 
donee's basis, as of the time of the gift, for the purpose of 
determining gain. The donee's basis for the purpose of determining loss, 
determined under section 1015(a), is $75 (fair market value of the share 
at the date of gift).
    Example (6). Assume the same facts as in example (1), except assume 
that after acquiring the share of stock on June 1, 1965, E dies on 
August 1, 1966, at which time the share has a fair market value of $150. 
Compensation in the amount of $15 is includible in E's gross income for 
the taxable year closing with his death, such $15 being the difference 
between the option price ($85) and the fair market value of the share 
when the option was granted ($100), since such value is less than the 
fair market value at date of death ($150). The basis of the share in the 
hands of E's estate is determined under section 1014 without regard to 
the $15 includible in the decedent's gross income.
    Example (7). Assume the same facts as in example (6), except assume 
that E dies on August 1, 1965, at which time the share has a fair market 
value of $150. Although E's death occurred within six months after the 
transfer of the share to him, the income tax consequences are the same 
as in example (6).
    Example (8). Assume the same facts as in example (1), except assume 
that the share of stock was issued in the names of E and his wife 
jointly with right of survivorship, and that E and his wife sold the 
share on June 15, 1966, for $150, its fair market value on that date. 
Compensation in the amount of $15 is includible in E's gross income for 
1966, the year of the disposition of the share. The basis of the share 
in the hands of E and his wife for the purpose of determining gain or 
loss on the sale is $100, that is, the cost of $85 increased by the 
amount of $15 includible as compensation in E's gross income. The gain 
of $50 on the sale is treated as long-term capital gain, and is divided 
equally between E and his wife.
    Example (9). Assume the same facts as in example (1), except assume 
that the share of stock was issued in the names of E and his wife 
jointly with right of survivorship, and that E predeceased his wife on 
August 1, 1966, at which time the share had a fair market value of $150. 
Compensation in the amount of $15 is includible in E's gross income for 
the

[[Page 797]]

taxable year closing with his death. See example (6). The basis of the 
share in the hands of E's wife as survivor is determined under section 
1014 without regard to the $15 includible in the decedent's gross 
income.
    Example (10). Assume the same facts as in example (9), except assume 
that E's wife predeceased him on July 1, 1966. Section 423(c) does not 
apply in respect of her death. Upon the subsequent death of E on August 
1, 1966, the income tax consequences in respect of E's taxable year 
closing with the date of his death, and in respect of the basis of the 
share in the hands of his estate, are the same as in example (6). If E 
had sold the share on July 15, 1966 (after the death of his wife), for 
$150, its fair market value at that time, the income tax consequences 
would be the same as in example (1).

[T.D. 6887, 31 FR 8799, June 24, 1966 as amended by T.D. 7645, 44 FR 
55836, Sept. 28, 1979; T.D 7728, 45 FR 72650, Nov. 3, 1980; T.D. 8235, 
53 FR 48641, Dec. 2, 1988]



Sec. 1.425-1   Definitions and special rules applicable to statutory options.

    (a) Corporate reorganizations, liquidations, etc. (1)(i) The term 
``issuing or assuming a stock option in a transaction to which section 
425(a) applies'' means, for purposes of sections 421 through 425, a 
substitution of a new option for an old option, or an assumption of such 
old option, by an employer corporation, or a related corporation of such 
corporation, by reason of a corporate transaction (as defined by 
subdivision (ii) of this subparagraph), if--
    (a) The excess of the aggregate fair market value of the shares 
subject to the option immediately after the substitution or assumption 
over the aggregate option price of such shares is not more than the 
excess of the aggregate fair market value of all shares subject to the 
option immediately before such substitution or assumption over the 
aggregate option price of such shares, and
    (b) The new option or the assumption of the old option does not give 
the employee additional benefits which he did not have under the old 
option.
    (ii) For purposes of this section, the term ``corporate 
transaction'' means any merger of a corporation into another 
corporation, any consolidation of two or more corporations into another 
corporation, any purchase or acquisition of property or stock by any 
corporation, any separation of a corporation (including a spin-off or 
other distribution of stock or property by a corporation), any 
reorganization of a corporation (whether or not such reorganization 
comes within the definition of such term in section 368), or any partial 
or complete liquidation by a corporation, if such action by such 
corporation results in a significant number of employees being 
transferred to a new employer or discharged, or in the creation or 
severance of a parent-subsidiary relationship.
    (2)(i) A change in the terms of an option attributable to the 
issuance or assumption of an option by reason of a corporate transaction 
(as defined under section 425(a) and subparagraph (1)(ii) of this 
paragraph) is not a modification of such option. See section 425(h)(3) 
and paragraph (e) of this section. Thus, section 425(a), in effect, 
provides rules under which a new employer, or a parent or subsidiary of 
a new employer, may by reason of a corporate transaction assume a 
statutory option granted by the former employer or parent or subsidiary 
thereof, or issue a new statutory option in place of the option granted 
by the former employer or parent or subsidiary thereof, without having 
such assumption or substitution being considered as a modification of 
the option. For example, section 425(a) may apply where there is a 
merger of X Corporation into Y Corporation and Y Corporation wishes to 
employ the employees of X Corporation and to assume statutory options 
which had been granted to them by their former employer, X Corporation. 
Another example is where X Corporation forms a new subsidiary, Y 
Corporation, and transfers to it certain assets and employees, and where 
Y Corporation wishes to grant to such employees a statutory option to 
purchase its stock in place of the statutory option which they had to 
purchase stock of X Corporation.
    (ii) Section 425(a) also provides rules under which a new parent or 
subsidiary corporation of the employer corporation may by reason of a 
corporate transaction assume a statutory option granted by the employer 
or parent or subsidiary thereof, or issue a new statutory option in 
place of the option granted by the employer or parent or

[[Page 798]]

subsidiary thereof, without having such assumption or substitution 
considered a modification of the option. Section 425(a) may apply, for 
example, where X Corporation acquires a new subsidiary, Y Corporation, 
by purchase of stock and desires to grant to the employees of Y 
Corporation a statutory option to buy stock of X Corporation in place of 
a statutory option which they have to purchase the stock of Y 
Corporation.
    (iii) Section 425(a) applies only when the assumption or 
substitution occurs by reason of a corporate transaction as defined in 
this paragraph. Thus, section 425(a) may apply where as a result of a 
corporate transaction a statutory option can no longer be exercised, or 
if exercised, section 421 would not apply (see the first example in 
subdivision (i) of this subparagraph). Moreover, section 425(a) may 
apply in any case where the reason for the assumption or substitution 
grows out of a corporate transaction even though there could have been a 
valid exercise under section 421 of the original option (see the second 
example in subdivision (i) of this subparagraph and the example in 
subdivision (ii) of this subparagraph). However, a corporation which has 
issued an option may not substitute a new option for such option under 
section 425(a). See, however, paragraph (e) of this section.
    (3) For section 425(a) to apply, it is not necessary to show that 
the corporation assuming or substituting the option is under any 
obligation to do so. In fact, section 425(a) may apply where the option 
which is being assumed or replaced expressly provides that it will 
terminate upon the occurrence of certain corporate transactions. 
However, section 425(a) cannot be applied to revive a statutory option 
which, for reasons not related to the corporate transaction, expires 
before it can properly be assumed or replaced under section 425(a). For 
section 425(a) to apply, the assumed or substituted option must qualify 
as a statutory option.
    (4)(i) Section 425(a) does not apply if the terms of the assumed or 
substituted option confer on the employee more favorable benefits than 
he had under the old option. Section 425(a) can apply to a corporate 
transaction only if, on a share by share comparison, the ratio of the 
option price to the fair market value of the stock subject to the option 
immediately after the substitution or assumption is no more favorable to 
the optionee than the ratio of the option price to the fair market value 
of the stock subject to the old option immediately before such 
substitution or assumption. The number of shares subject to an option 
issued or assumed may be adjusted to compensate for any change in the 
aggregate spread between the aggregate option price and the aggregate 
fair market value of the stock subject to the option immediately after 
the substitution or assumption as compared to the aggregate spread 
between the option price and the aggregate fair market value of the 
stock subject to the option immediately before such substitution or 
assumption. Such an adjustment will not prevent section 425(a) from 
applying to such substitution or assumption.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1965, P Corporation acquires 100 percent of 
the stock of S Corporation and on such date S becomes a subsidiary of P 
Corporation. Also on such date, P Corporation substitutes a qualified 
stock option to purchase P stock for a qualified stock option to 
purchase S stock held by E, an employee of S. Assume that E's S option 
had 3 years to run on the date of the substitution. If the P option 
granted to E in substitution for his S option runs for more than 3 years 
from the date of the substitution, section 425(a) cannot apply, since 
the effect of such an option would be to give E an additional benefit 
which he did not enjoy under his S option.
    Example (2). E is an employee of S Corporation. E holds a qualified 
stock option which was granted to him by S to purchase 60 shares of S 
stock at $12 per share. On June 1, 1967, S Corporation is merged into P 
Corporation, and on such date P substitutes a qualified stock option to 
purchase P stock for E's qualified stock option to purchase S stock. 
Immediately before the substitution, the fair market value of S stock 
was $32 per share; immediately after the substitution, the fair market 
value of P stock is $24 per share. The new option entitles E to buy P 
stock at $9 per share. Since on a share by share comparison the ratio of 
the new option price ($9 per share) to the fair market value

[[Page 799]]

of P stock immediately after the substitution ($24 per share) is not 
more favorable to E than the ratio of the old option price ($12 per 
share) to the fair market value of S stock immediately before the 
substitution ($32 per share) (\9/24\ = \12/32\) the requirement of 
subparagraph (4)(i) of this paragraph is met. The number of shares 
subject to E's option to purchase P stock is set at 80. Since the excess 
of the aggregate fair market value over the aggregate option price of 
the stock subject to E's new option to purchase P stock, $1,200 
(80 x $24 minus 80 x $9), is not greater than the excess of the 
aggregate fair market value over the aggregate option price of the stock 
subject to E's old option to purchase S stock, $1,200 (60 x $32 minus 
60 x $12), the requirement of subparagraph (1)(i)(a) of this paragraph 
is met. Thus, section 425(a) may apply to the substitution.
    Example (3). Assume the same facts as in example (2), except assume 
that the fair market value of S stock immediately before the 
substitution was $8 per share and that the option price was $10 per 
share, and that the fair market value of P stock immediately after the 
substitution is $12 per share. P sets the new option price at $15 per 
share. Since on a share by share comparison the ratio of the new option 
price ($15 per share) to the fair market value of P stock immediately 
after the substitution ($12 per share) is not more favorable to E than 
the ratio of the old option price ($10 per share) to the fair market 
value of S stock immediately before the substitution ($8 per share) 
(\15/12\ = \10/8\), the requirement of subparagraph (4)(i) of this 
paragraph is met. Assume further that the number of shares subject to 
E's P option is set at 20 as compared to 60 shares under E's old option 
to buy S stock. Immediately after the substitution, 2 shares of P stock 
are worth $24, which is what 3 shares of S stock were worth immediately 
before the substitution (2 x $12=3 x $8). Thus, to completely replace 
E's S option, E should have received an option to purchase 40 shares of 
P stock, i.e., 2 shares of P for each 3 shares of S which E could have 
purchased under his old option (\2/3\ = \40/60\). Since E's new option 
covers 20 shares of P stock, it is clear that P has replaced only \1/2\ 
of E's stock option. The portion of E's stock option which was not 
replaced by P is an outstanding stock option to purchase stock of a 
predecessor corporation of P Corporation for purposes of section 
422(b)(5) and (c)(2).

    (5) For the purpose of applying section 425(a), the assumption or 
substitution shall be considered to occur at the time that the optionee 
would, except for section 425(a), be considered to have been granted the 
option which the employer corporation, or parent or subsidiary thereof, 
is issuing or assuming. An assumption or substitution which occurs by 
reason of a corporate transaction may occur before or after the 
corporate transaction.
    (6) In order to have a substitution of an option under section 
425(a) the optionee must, in connection with the corporate transaction, 
lose his rights under the old option. There cannot be a substitution of 
a new option for an old option within the meaning of section 425(a) if 
it is contemplated that the optionee may exercise both the old option 
and the new option. It is not necessary, however, to have a complete 
substitution of a new option for the old option. However, if the old 
option was a qualified or restricted stock option, any portion of such 
option which is not substituted or assumed in a transaction to which 
section 425(a) applies will be treated as an outstanding option to 
purchase stock of a predecessor corporation of the new employer or 
grantor corporation. See section 422 (b)(5) and (c)(2) and paragraph (f) 
of Sec. 1.422-2. For example, assume that X Corporation forms a new 
corporation, Y Corporation, by a transfer of certain assets and 
distributes the stock of Y Corporation to the shareholders of X 
Corporation. Assume further that E, an employee of X Corporation, is 
thereafter an employee of both X Corporation and Y Corporation. Y 
Corporation wishes to substitute an option to purchase some of its stock 
for the statutory option which E has, entitling him to purchase 100 
shares of the stock of X Corporation. The option to purchase the stock 
of X Corporation, at $50 a share, was granted when the stock had a fair 
market value of $50 a share, and the stock was worth $100 a share just 
before the distribution of the new corporation's stock to the 
shareholders of X Corporation. The stock of X Corporation and of Y 
Corporation is worth $50 a share just after such distribution, which 
also is the time of the substitution. On these facts an option to 
purchase 200 shares of stock of Y Corporation at $25 a share could be 
given to the employee in complete substitution for the old option. It 
would also be permissible to give the employee an option to purchase 100 
shares of stock of Y Corporation at $25 a share in substitution for his 
right to purchase 50 of the

[[Page 800]]

shares covered by the old option. However, if the option to purchase X 
stock was a qualified or restricted stock option, then to the extent the 
old option is not assumed or a new option issued in substitution 
therefor in a transaction to which section 425(a) applies, such old 
option will be treated as an outstanding option under section 422(c)(2) 
for purposes of section 422(b)(5). See paragraph (f) of Sec. 1.422-2.
    (7) Any reasonable methods may be used to determine the fair market 
value of the stock subject to the option immediately before the 
assumption or substitution and the fair market value of the stock 
subject to the option immediately after the assumption or substitution. 
Such methods include the valuation methods described in Sec. 20.2031-2 
of this chapter (the Estate Tax Regulations). In the case of stock 
listed on a stock exchange, the fair market value may be based on the 
last sale before and the first sale after the assumption or substitution 
if such sales clearly reflect the fair market value of the stock, or may 
be based upon an average selling price during a longer period, such as 
the day or week before, and the day or week after, the assumption or 
substitution. If the stocks are not listed, or if they are newly issued, 
it will be reasonable to base the determination on experience over even 
longer periods. In the case of a merger, consolidation, or other 
reorganization which is arrived at by arm's-length negotiations, the 
fair market value of the stocks subject to the option before and after 
the assumption or substitution may be based upon the values assigned to 
the stock for purposes of the reorganization. For example, if in the 
case of a merger the parties treat each share of the merged company as 
being equal in value to a share of the surviving company, it will be 
reasonable to assume that the stocks are of equal value so that the 
substituted option may permit the employee to purchase at the same price 
one share of the surviving company for each share he could have 
purchased of the merged company.
    (8) For the purpose of applying section 425(a) and this paragraph, 
the determination of whether the parent-subsidiary relationship exists 
shall be based upon circumstances existing immediately after the 
corporate transaction.
    (b) Acquisition of new stock. (1) Section 425(b) provides that the 
rules provided by sections 421 through 425 which are applicable with 
respect to stock transferred to an individual upon his exercise of an 
option, shall likewise be applicable with respect to stock acquired by a 
distribution or an exchange to which section 305, 354, 355, 356, or 1036 
(or so much of section 1031 as relates to section 1036) applies. Stock 
so acquired shall, for purposes of sections 421 through 425, be 
considered as having been transferred to the individual upon his 
exercise of the option. A similar rule shall be applied in the case of a 
series of such acquisitions. With respect to such acquisitions, section 
425(b) does not make inapplicable any of the provisions of section 305, 
354, 355, 356, or 1036 (or so much of section 1031 as relates to section 
1036).
    (2) The application of this paragraph may be illustrated by the 
following example:

    Example. If, with respect to stock transferred pursuant to the 
timely exercise of a statutory option, there is a distribution of new 
stock to which section 305(a) is applicable, and if there is a 
disposition of such new stock before the expiration of the applicable 
holding period required with respect to the stock originally acquired 
pursuant to the exercise of such option, such disposition makes section 
421 inapplicable to the transfer of the original stock pursuant to the 
exercise of the option to the extent that the disposition effects a 
reduction of the individual's total interest in the old and new stock. 
However, if the new stock, as well as the old stock, is not disposed of 
before the expiration of the holding period required with respect to the 
original stock acquired pursuant to the exercise of the option, the 
special tax treatment provided by section 421 is applicable to both the 
original shares and the shares acquired by virtue of the distribution to 
which section 305(a) applies.

    (c) Disposition of stock. (1) For purposes of sections 421 through 
425, the term ``disposition'' includes a sale, exchange, gift, or any 
transfer of legal title, but does not include--
    (i) A transfer from a decedent to his estate or a transfer by 
bequest or inheritance; or
    (ii) An exchange to which is applicable section 354, 355, 356, or 
1036 (or so

[[Page 801]]

much of section 1031 as relates to section 1036); or
    (iii) A mere pledge or hypothecation. However, a disposition of the 
stock pursuant to a pledge or hypothecation is a disposition by the 
individual, even though the making of the pledge or hypothecation is not 
such a disposition.
    (2) A share of stock acquired by an individual pursuant to the 
exercise of a statutory option is not considered disposed of by the 
individual if such share is taken in the name of the individual and 
another person jointly with right of survivorship, or is subsequently 
transferred into such joint ownership, or is retransferred from such 
joint ownership to the sole ownership of the individual. However, any 
termination of such joint ownership (other than a termination effected 
by the death of a joint owner) is a disposition of such share, except to 
the extent the individual reacquires ownership of the share. For 
example, if such individual and his joint owner transfer such share to 
another person, the individual has made a disposition of such share. 
Likewise, if a share of stock held in the joint names of such individual 
and another person is transferred to the name of such other person, 
there is a disposition of such share by the individual. If an individual 
exercises a statutory option and a share of stock is transferred to 
another or is transferred to such individual in his name as trustee for 
another, the individual has made a disposition of such share. However, a 
termination of joint ownership resulting from the death of one of the 
owners is not a disposition of such share. For determination of basis in 
the hands of the survivor where joint ownership is terminated by the 
death of one of the owners, see section 1014.
    (3) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1964, the X Corporation grants to E, an 
employee, a qualified stock option to purchase 100 shares of X 
Corporation stock at $100 per share, the fair market value of X 
Corporation stock on that date. On June 1, 1965, while employed by X 
Corporation, E exercises the option in full and pays X Corporation 
$10,000, and on that day X Corporation transfers to E 100 shares of its 
stock having a fair market value of $12,000. Before June 1, 1968, E 
makes no disposition of the 100 shares so purchased. E realizes no 
income on June 1, 1965, with respect to the transfer to him of the 100 
shares of X Corporation stock. X Corporation is not entitled to any 
deduction at any time with respect to its transfer to E of the stock. 
E's basis for such 100 shares is $10,000.
    Example (2). Assume the same facts as in example (1), except assume 
that on August 1, 1968, three years and two months after the transfer of 
the shares to him, E sells the 100 shares of X Corporation stock for 
$13,000 which is the fair market value of the stock on that date. For 
the taxable year in which the sale occurs, E realizes a gain of $3,000 
($13,000 minus E's basis of $10,000), which is treated as long-term 
capital gain.
    Example (3). Assume the same facts as in example (2), except assume 
that on August 1, 1968, E makes a gift of the 100 shares of Y 
Corporation stock to his son. Such disposition results in no realization 
of gain to E either for the taxable year in which the option is 
exercised or the taxable year in which the gift is made. E's basis of 
$10,000 becomes the donee's basis for determining gain or loss.
    Example (4). Assume the same facts as in example (1), except assume 
that on May 1, 1968, two years and 11 months after the transfer of the 
shares to him, E sells the 100 shares of X Corporation stock for 
$13,000. The special rules of section 421(a) are not applicable to the 
transfer of the stock by X Corporation to E, because disposition of the 
stock was made by E within three years from the date the shares were 
transferred to him.
    Example (5). Assume the same facts as in example (1), except assume 
that E dies on September 1, 1965, owning the 100 shares of X Corporation 
stock acquired by him pursuant to his exercise on June 1, 1965, of the 
qualified stock option. On the date of death, the fair market value of 
the stock is $12,500. No income is realized by E by reason of the 
transfer of the 100 shares to his estate. If the stock is valued as of 
the date of E's death for estate tax purposes, the basis of the 100 
shares in the hands of the executor is $12,500.
    Example (6). Assume the same facts as in example (1), except assume 
that on June 1, 1965, when the option is exercised by E the 100 shares 
are transferred by X to E and his wife W, as joint owners with right of 
survivorship, and that E dies on July 1, 1965. Neither the transfer into 
joint ownership nor the termination of such joint ownership by E's death 
is a disposition. Because E has made no disqualifying disposition of the 
shares, section 421(a) is applicable and E realizes no income at death 
with respect to the shares even though he held the stock less than 3 
years after the transfer of the shares to him pursuant to his exercise 
of a qualified stock option. See paragraph (b)(2) of Sec. 1.421-8.


[[Page 802]]


    (d) Attribution of stock ownership. Section 425(d) provides that in 
determining the amount of stock owned by an individual for purposes of 
applying the percentage limitations of section 422(b)(7), 423(b)(3), and 
424(b)(3), stock of the employer corporation or of a related corporation 
which is owned (directly or indirectly) by or for such individual's 
brothers and sisters (whether by the whole or half blood), spouse, 
ancestors, and lineal descendants, shall be considered as owned by such 
individual. Also, for such purpose, if a domestic or foreign 
corporation, partnership, estate, or trust owns (directly or indirectly) 
stock of the employer corporation or of its parent or subsidiary, such 
stock shall be considered as being owned proportionately by or for the 
shareholders, partners, or beneficiaries of the corporation, 
partnership, estate, or trust.
    (e) Modification, extension, or renewal of option. (1) Section 
425(h) provides the rules for determining whether a share of stock 
transferred to an individual upon his exercise of an option, after the 
terms thereof have been modified, extended, or renewed, is transferred 
pursuant to the exercise of a statutory option. Such rules and the rules 
of this section are applicable to modifications, extensions, or renewals 
(or to changes which are not treated as modifications) of an option in 
any taxable year of the optionee which begins after December 31, 1963, 
except that section 425(h)(1) and this paragraph shall not apply to any 
change made before January 1, 1965, in the terms of an option granted 
after December 31, 1963, to permit such option to meet the requirements 
of section 422(b) (3), (4), or (5), and the regulations thereunder. See 
paragraphs (d), (e), and (f), of Sec. 1.422-2, relating to period for 
exercising options, option price, and prior outstanding options, 
respectively, in the case of qualified stock options.
    (2) Any modification, extension, or renewal of the terms of an 
option to purchase stock shall be considered as the granting of a new 
option.
    (3) Except as otherwise provided in subparagraph (4) of this 
paragraph, in case of a modification, extension, or renewal of an 
option, the highest of the following values shall be considered to be 
the fair market value of the stock at the time of the granting of such 
option for purposes of applying the rules of sections 423(b)(6), and 
424(b)(1)--
    (i) The fair market value on the date of the original granting of 
the option,
    (ii) The fair market value on the date of the making of such 
modification, extension, or renewal, or
    (iii) The fair market value at the time of the making of any 
intervening modification, extension, or renewal.
    (4)(i) In the case of a modification, extension, or renewal of a 
restricted stock option before January 1, 1964 (or after December 31, 
1963, if made pursuant to a binding written contract entered into before 
January 1, 1964), the rules of subparagraph (3) of this paragraph do not 
apply if the aggregate of the monthly average fair market values of the 
stock subject to the option for the 12 consecutive calendar months 
preceding the month in which the modification, extension, or renewal 
occurs, divided by 12, is an amount less than 80 percent of the fair 
market value of such stock on the date of the original granting of the 
option or the date of the making of any intervening modification, 
extension, or renewal, whichever is the highest. In such case, any 
modification, extension, or renewal of the option is treated as the 
granting of a new option but only the fair market value of the stock 
subject to the option at the time of the modification, extension, or 
renewal is considered in determining whether the option is a restricted 
stock option. In the case of stocks listed on a stock exchange, the 
average fair market value of the stock for any month may be determined 
by adding the highest and lowest quoted selling prices during such month 
and dividing the sum by two. The method used for determining the average 
fair market value of the stock for any month must be used for all twelve 
months, except where it is shown that such method cannot be used for any 
month or does not clearly reflect the average fair market value of the 
stock for any such month.
    (ii) The application of subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example. On June 1, 1962, a restricted stock option was granted to 
purchase before July

[[Page 803]]

1, 1965, a share of stock for $85. The fair market value of such stock 
on June 1, 1962, was $100. On June 15, 1963, when the fair market value 
of the stock is $60, such option is extended so that it is exercisable 
at any time before July 1, 1966, at $55 a share. The average fair market 
value of the stock subject to the option for each of the 12 calendar 
months preceding June 1963, is as follows:

                                  1962                                  
June...........................................................     $100
July...........................................................       90
August.........................................................       80
September......................................................       70
October........................................................      $80
November.......................................................       80
December.......................................................       90
                                                                        
                                  1963                                  
                                                                        
January........................................................       90
February.......................................................       80
March..........................................................       70
April..........................................................       60
May............................................................       60
                                                                        

The aggregate of such values is $950. When this sum is divided by 12, 
the result is $79.17, which is an amount less than 80 percent of the 
fair market value of the stock ($100) when the option was granted. 
Accordingly, when the option is extended on June 15, 1963, the option 
price could have been reduced as low as $51 (85 percent of the fair 
market value of the stock on such day) without disqualifying the option 
as a restricted stock option. If the aggregate fair market values of the 
stock so ascertained had amounted to $960 or more, the rules of 
subparagraph (3) of this paragraph would have been applicable with the 
result that any reduction in the option price would have disqualified 
the option as a restricted stock option.

    (5)(i) The time or date when an option is modified, extended, or 
renewed shall be determined, insofar as applicable, in accordance with 
the rules governing determination of the time or date of granting an 
option provided in paragraph (c) of Sec. 1.421-7. For purposes of 
sections 421 through 425, the term ``modification'' means any change in 
the terms of the option which gives the optionee additional benefits 
under the option. For example, a change in the terms of the option, 
which shortens the period during which the option is exercisable, is not 
a modification. However, a change which provides more favorable terms 
for the payment for the stock purchased under the option, is a 
modification. Where an option is amended solely to increase the number 
of shares subject to the option, such increase shall not be considered 
as a modification of the option, but shall be treated as the grant of a 
new option for the additional shares.
    (ii)(a) A change in the number or price of the shares of stock 
subject to an option merely to reflect a stock dividend, or stock split-
up, is not a modification of the option.
    (b) A change in the number or price of the shares of stock subject 
to an option to reflect a corporate transaction (as defined by paragraph 
(a)(1) (ii) of this section) is not a modification of the option 
provided that the excess of the aggregate fair market value (determined 
immediately after such corporate transaction) of the shares subject to 
the option immediately after such change over the aggregate new option 
price of such shares is not more than the excess of the aggregate fair 
market value of the shares subject to the option immediately before the 
transaction over the aggregate former option price of such shares, and 
provided that the option after such change does not give the employee 
additional benefits which he did not have before such change. The ratio 
of the option price immediately after the change to the fair market 
value of the stock subject to the option immediately after the corporate 
transaction must not be more favorable to the optionee on a share by 
share comparison than the ratio of the old option price to the fair 
market value of the stock subject to the option immediately before such 
a transaction. A reduction in the option price of an option, other than 
as specifically provided for in this section, is a modification of such 
option.
    (c) The application of (b) of this subdivision may be illustrated by 
the following example:

    Example. E, an employee of P Corporation, holds a qualified stock 
option granted to him by P to buy 90 shares of P stock at $36 per share. 
P Corporation is a party to a corporate transaction (as defined by 
paragraph (a)(1)(ii) of this section) which results in a decline in the 
fair market value of P stock. Immediately before such transaction the 
fair market value of P stock was $64 per share. Immediately after such 
transaction, the fair market value of P stock is $48 per share. Two 
weeks after such transaction, P proposes to amend E's option in order to 
reflect the decline in the fair market value of P stock attributable to 
the transaction. At such time,

[[Page 804]]

the fair market value of P stock is $50 per share. However, since the 
change was not made at the time of the transaction, the fair market 
value of P stock at the time of the change is irrelevant for purposes of 
determining whether the change comes under the rule of (b) of this 
subdivision. P changes the terms of E's option to lower the option price 
to $27 per share and to increase the number of shares subject to the 
option to 120. No other terms of the option are changed. The aggregate 
fair market value (determined immediately after the corporate 
transaction) of the shares subject to the option immediately after the 
change is $5,760 ($48  x  120). The aggregate option price of the shares 
subject to the option immediately after the change is $3,240 ($27  x  
120). Thus, the excess of such fair market value over such option price 
is $2,520 ($5,760-$3,240). The aggregate fair market value of the stock 
subject to the option immediately before the corporate transaction is 
$5,760 ($64  x  90). The aggregate option price for the stock subject to 
the option immediately before the change is $3,240 ($36  x  90). Thus, 
the excess of such fair market value over such option price is $2,520 
($5,760-$3,240). Accordingly, the excess after the change does not 
exceed the excess before the corporate transaction. Moreover, the ratio 
of the option price immediately after the change ($27 per share) to the 
fair market value of P stock immediately after the transaction ($48 per 
share) is not more favorable to E on a share by share comparison than 
the ratio of the old option price ($36 per share) to the fair market 
value of P stock immediately before the transaction ($64) (\27/48\ = 
\36/64\). For purposes of section 425(h), the changes made do not confer 
additional benefits on E which he did not have before the change. 
Accordingly, the changes do not constitute a modification of E's option.

    (iii) Any change in the terms of an option for the purpose of 
qualifying the option as a statutory option grants additional benefits 
and, therefore, is a modification. However, if the terms of an option 
are changed to provide that the optionee cannot transfer the option 
except by will or by the laws of descent and distribution in order to 
meet the requirements of section 422(b)(6), 423(b)(9), or 424(b)(2), 
such change is not a modification, provided that in any case where the 
purpose of the change is to meet the requirements of section 424(b)(2) 
the option is at the same time changed so that it is not exercisable 
after the expiration of ten years from the date the option was granted. 
Where an option is not immediately exercisable in full, a change in the 
terms of such option to accelerate the time at which the option (or any 
portion thereof) may be exercised is not a modification for purposes of 
section 425(h) and this section. A modification results where an option 
is revised to insert the language required by section 422(c)(6)(B).
    (iv) An extension of an option refers to the granting by the 
corporation to the optionee of an additional period of time within which 
to exercise the option beyond the time originally prescribed. A renewal 
of an option is the granting by the corporation of the same rights or 
privileges contained in the original option on the same terms and 
conditions. The rules of this paragraph apply as well to successive 
modifications, extensions, and renewals.
    (6) A statutory option may, as a result of a modification, 
extension, or renewal, thereafter cease to be a statutory option, or any 
option may, by modification, extension, or renewal, thereafter become a 
statutory option. Moreover, a qualified option after a modification may 
not be exercisable in accordance with its terms because of the 
requirements of section 422(b)(5) and section 422(c)(6). See paragraph 
(f)(3)(i) of Sec. 1.422-2 and examples (8) and (9) of paragraph (f)(4) 
of Sec. 1.422-2.
    (7) The application of this paragraph may be illustrated by the 
following examples:

    Example (1). On June 1, 1964, the X Corporation grants to an 
employee an option under X's employee stock purchase plan to purchase 
100 shares of the stock of X Corporation at $90 per share, such option 
to be exercised on or before June 1, 1966. At the time the option is 
granted, the fair market value of the X Corporation stock is $100 per 
share. On February 1, 1965, before the employee exercises the option, X 
Corporation modifies the option to provide that the price at which the 
employee may purchase the stock shall be $80 per share. On February 1, 
1965, the fair market value of the X Corporation stock is $90 per share. 
Under section 425(h), the X Corporation is deemed to have granted an 
option to the employee on February 1, 1965. Such option shall be treated 
as an option to purchase at $80 per share 100 shares of stock having a 
fair market value of $100 per share, that is, the higher of the fair 
market value of the stock on June 1, 1964, or on February 1, 1965. The 
exercise of such option by the employee after February 1, 1965, is not 
the exercise of a statutory option.
    Example (2). On June 1, 1964, the X Corporation grants to an 
employee an option under

[[Page 805]]

X's employee stock purchase plan to purchase 100 shares of X Corporation 
stock at $90 per share, exercisable after December 31, 1965, and on or 
before June 1, 1966. On June 1, 1964, the fair market value of X 
Corporation's stock is $100 per share. On February 1, 1965, X 
Corporation modifies the option to provide that the option shall be 
exercisable on or before September 1, 1966. On February 1, 1965, the 
fair market value of X Corporation stock is $110 per share. Under 
section 425(h), X Corporation is deemed to have granted an option to the 
employee on February 1, 1965, to purchase at $90 per share 100 shares of 
stock having a fair market value of $110 per share, that is, the higher 
of the fair market value of the stock on June 1, 1964, or on February 1, 
1965. The exercise of such option by the employee is not the exercise of 
a statutory option.
    Example (3). The facts are the same as in example (1), except that 
the employee exercised the option to the extent of 50 shares on January 
15, 1965, before the date of the modification of the option. Any 
exercise of the option after February 1, 1965, the date of the 
modification, is not the exercise of a statutory option. See example (1) 
in this subparagraph. The exercise of the option on January 15, 1965, 
pursuant to which 50 shares were acquired, is the exercise of a 
statutory option.
    Example (4). On June 1, 1964, the X Corporation grants to an 
employee an option to purchase 100 shares of the stock of X Corporation 
at $80 per share, such option to be exercised on or before June 1, 1966. 
At the time the option is granted, the fair market value of the X 
Corporation stock is $100 per share. On February 1, 1965, before the 
employee exercises the option, the X Corporation modifies the option to 
provide that the number of shares of stock which the employee may 
purchase at $80 per share will be 250. On February 1, 1965, the fair 
market value of X Corporation stock is $80 per share. Under these facts, 
the X Corporation has granted two options, one option (not a statutory 
option) with respect to 100 shares having been granted on June 1, 1964, 
and the other option (a qualified stock option) with respect to the 
additional 150 shares having been granted on February 1, 1965. In the 
absence of facts identifying which option is exercised first, the 
employee will be deemed to have exercised the options in the order in 
which they were granted.

[T.D. 6887, 31 FR 8808, June 24, 1966]
[[Page 807]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Table of OMB Control Numbers
  List of CFR Sections Affected



[[Page 809]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)

[[Page 810]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)

[[Page 811]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)

[[Page 812]]

     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)

[[Page 813]]

       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)

[[Page 814]]

       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)

[[Page 815]]

      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 816]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 817]]

       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 818]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

[[Page 819]]

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

[[Page 820]]

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)

[[Page 821]]

       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)

[[Page 822]]

         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)

[[Page 823]]

        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)

[[Page 824]]

       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 825]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 1997)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 826]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I

[[Page 827]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III

[[Page 828]]

Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301

[[Page 829]]

Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I

[[Page 830]]

  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI

[[Page 831]]

Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI

[[Page 832]]

President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Trustee for American Indians, Office of   25, VII
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I

[[Page 833]]

  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 835]]

                                     

                                     



                   Table of OMB Control NumbersSecs. 



     PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

Sec. 602.101  OMB Control numbers.

    (a) Purpose. This part collects and displays the control numbers 
assigned to collections of information in Internal Revenue Service 
regulations by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1980. The Internal Revenue Service intends 
that this part (together with 26 CFR 601.9000) comply with the 
requirements of Secs. 1320.7(f), 1320.12, 1320.13, and 1320.14 of 5 CFR 
part 1320 (OMB regulations implementing the Paperwork Reduction Act), 
for the display of control numbers assigned by OMB to collections of 
information in Internal Revenue Service regulations. This part does not 
display control numbers assigned by the Office of Management and Budget 
to collections of information of the Bureau of Alcohol, Tobacco, and 
Firearms.
    (b) Cross-reference. For display of control numbers assigned by the 
Office of Management and Budget to Internal Revenue Service collections 
of information in the Statement of Procedural Rules (26 CFR part 601), 
see 26 CFR 601.9000.
    (c) Display.


------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
1.23-5.....................................................    1545-0074
1.25-1T....................................................    1545-0922
                                                               1545-0930
1.25-2T....................................................    1545-0922
                                                               1545-0930
1.25-3T....................................................    1545-0922
                                                               1545-0930
1.25-4T....................................................    1545-0922
1.25-5T....................................................    1545-0922
1.25-6T....................................................    1545-0922
1.25-7T....................................................    1545-0922
1.25-8T....................................................    1545-0922
1.28-1.....................................................    1545-0619
1.31-2.....................................................    1545-0074
1.32-2.....................................................    1545-0074
1.37-1.....................................................    1545-0074
1.37-3.....................................................    1545-0074
1.41-2.....................................................    1545-0619
1.41-3.....................................................    1545-0619
1.41-4A....................................................    1545-0074
1.41-4 (b) and (c).........................................    1545-0074
1.41-8(d)..................................................    1545-0732
1.41-9.....................................................    1545-0619
1.42-1T....................................................    1545-0984
                                                               1545-0988
1.42-2.....................................................    1545-1005
1.42-5.....................................................    1545-1291
1.42-6.....................................................    1545-1102
1.42-8.....................................................    1545-1102
1.42-10....................................................    1545-1102
1.42-13....................................................    1545-1357
1.42-14....................................................    1545-1423
1.43-3(a)(3)...............................................    1545-1292
1.43-3(b)(3)...............................................    1545-1292
1.44A-1....................................................    1545-0068
1.44A-3....................................................    1545-0074
1.44B-1....................................................    1545-0219
1.458-1....................................................    1545-0879
1.458-2....................................................    1545-0152
1.46-1.....................................................    1545-0123
                                                               1545-0155
1.46-3.....................................................    1545-0155
1.46-4.....................................................    1545-0155
1.46-5.....................................................    1545-0155
1.46-6.....................................................    1545-0155
1.46-8.....................................................    1545-0155
1.46-9.....................................................    1545-0155
1.46-10....................................................    1545-0118
1.46-11....................................................    1545-0155
1.47-1.....................................................    1545-0166
                                                               1545-0155
1.47-3.....................................................    1545-0166
                                                               1545-0155
1.47-4.....................................................    1545-0123
1.47-5.....................................................    1545-0092
1.47-6.....................................................    1545-0099
1.48-3.....................................................    1545-0155
1.48-4.....................................................    1545-0808
                                                               1545-0155
1.48-5.....................................................    1545-0155
1.48-6.....................................................    1545-0155
1.48-12....................................................    1545-0155
1.50A-1....................................................    1545-0895
1.50A-2....................................................    1545-0895
1.50A-3....................................................    1545-0895
1.50A-4....................................................    1545-0895
1.50A-5....................................................    1545-0895

[[Page 836]]

                                                                        
1.50A-6....................................................    1545-0895
1.50A-7....................................................    1545-0895
1.50B-1....................................................    1545-0895
1.50B-2....................................................    1545-0895
1.50B-3....................................................    1545-0895
1.50B-4....................................................    1545-0895
1.50B-5....................................................    1545-0895
1.51-1.....................................................    1545-0219
                                                               1545-0241
                                                               1545-0244
                                                               1545-0797
1.52-2.....................................................    1545-0219
1.52-3.....................................................    1545-0219
1.56-1.....................................................    1545-0123
1.56(g)-1..................................................    1545-1233
1.56A-1....................................................    1545-0227
1.56A-2....................................................    1545-0227
1.56A-3....................................................    1545-0227
1.56A-4....................................................    1545-0227
1.56A-5....................................................    1545-0227
1.57-5.....................................................    1545-0227
1.58-1.....................................................    1545-0175
1.58-9(c)(5)(iii)(B).......................................    1545-1093
1.58-9(e)(3)...............................................    1545-1093
1.61-2.....................................................    1545-0771
1.61-2T....................................................    1545-0771
1.61-4.....................................................    1545-0187
1.61-15....................................................    1545-0074
1.62-2.....................................................    1545-1148
1.63-1.....................................................    1545-0074
1.67-2T....................................................    1545-0110
1.67-3T....................................................    1545-0118
1.67-3.....................................................    1545-1018
1.71-1T....................................................    1545-0074
1.72-4.....................................................    1545-0074
1.72-6.....................................................    1545-0074
1.72-9.....................................................    1545-0074
1.72-17....................................................    1545-0074
1.72-17A...................................................    1545-0074
1.72-18....................................................    1545-0074
1.74-1.....................................................    1545-1100
1.79-2.....................................................    1545-0074
1.79-3.....................................................    1545-0074
1.83-2.....................................................    1545-0074
1.83-5.....................................................    1545-0074
1.83-6.....................................................    1545-1448
1.103-10...................................................    1545-0123
                                                               1545-0940
1.103-15AT.................................................    1545-0720
1.103-18...................................................    1545-1226
1.103(n)-2T................................................    1545-0874
1.103(n)-4T................................................    1545-0874
1.103A-2...................................................    1545-0720
1.105-4....................................................    1545-0074
1.105-5....................................................    1545-0074
1.105-6....................................................    1545-0074
1.108(a)-1.................................................    1545-0046
1.108(a)-2.................................................    1545-0046
1.108(c)-1.................................................    1545-1421
1.117-5....................................................    1545-0869
1.119-1....................................................    1545-0067
1.120-3....................................................    1545-0057
1.121-1....................................................    1545-0072
1.121-2....................................................    1545-0072
1.121-3....................................................    1545-0072
1.121-4....................................................    1545-0072
                                                               1545-0091
1.121-5....................................................    1545-0072
1.127-2....................................................    1545-0768
1.132-1T...................................................    1545-0771
1.132-2....................................................    1545-0771
1.132-2T...................................................    1545-0771
1.132-5....................................................    1545-0771
1.132-5T...................................................    1545-0771
                                                               1545-1098
1.141-1....................................................    1545-1451
1.141-12...................................................    1545-1451
1.142-2....................................................    1545-1451
1.148-0....................................................    1545-1098
1.148-1....................................................    1545-1098
1.148-2....................................................    1545-1098
                                                               1545-1347
1.148-3....................................................    1545-1098
                                                               1545-1347
1.148-4....................................................    1545-1098
                                                               1545-1347
1.148-5....................................................    1545-1098
1.148-6....................................................    1545-1098
                                                               1545-1451
1.148-7....................................................    1545-1098
1.148-7....................................................    1545-1347
1.148-8....................................................    1545-1098
1.148-11...................................................    1545-1098
1.148-11...................................................    1545-1347
1.149(e)-1.................................................    1545-0720
1.151-1....................................................    1545-0074
1.152-3....................................................    1545-0071
1.152-4....................................................    1545-0074
1.152-4T...................................................    1545-0074
1.162-1....................................................    1545-0139
1.162-2....................................................    1545-0139
1.162-3....................................................    1545-0139
1.162-4....................................................    1545-0139
1.162-5....................................................    1545-0139
1.162-6....................................................    1545-0139
1.162-7....................................................    1545-0139
1.162-8....................................................    1545-0139
1.162-9....................................................    1545-0139
1.162-10...................................................    1545-0139
1.162-11...................................................    1545-0139
1.162-12...................................................    1545-0139
1.162-13...................................................    1545-0139
1.162-14...................................................    1545-0139
1.162-15...................................................    1545-0139
1.162-16...................................................    1545-0139
1.162-17...................................................    1545-0139
1.162-18...................................................    1545-0139
1.162-19...................................................    1545-0139
1.162-20...................................................    1545-0139
1.162-27...................................................    1545-1466
1.163-5....................................................    1545-0786
                                                               1545-1132
1.163-8T...................................................    1545-0995
1.163-10T..................................................    1545-0074
1.163(d)-1.................................................    1545-1421
1.165-1....................................................    1545-0177
1.165-2....................................................    1545-0177
1.165-3....................................................    1545-0177
1.165-4....................................................    1545-0177
1.165-5....................................................    1545-0177
1.165-6....................................................    1545-0177
1.165-7....................................................    1545-0177
1.165-8....................................................    1545-0177
1.165-9....................................................    1545-0177
1.165-10...................................................    1545-0177
1.165-11...................................................    1545-0074
                                                               1545-0177
                                                               1545-0786
1.165-12...................................................    1545-0786
1.166-1....................................................    1545-0123
1.166-2....................................................    1545-1254
1.166-4....................................................    1545-0123
1.166-10...................................................    1545-0123
1.167(a)-5T................................................    1545-1021

[[Page 837]]

                                                                        
1.167(a)-7.................................................    1545-0172
1.167(a)-11................................................    1545-0152
                                                               1545-0172
1.167(a)-12................................................    1545-0172
1.167(d)-1.................................................    1545-0172
1.167(e)-1.................................................    1545-0172
1.167(f)-11................................................    1545-0172
1.167(l)-1.................................................    1545-0172
1.168(d)-1.................................................    1545-1146
1.168(f)(8)-1T.............................................    1545-0923
1.168(i)-1.................................................    1545-1331
1.168-5....................................................    1545-0172
1.169-4....................................................    1545-0172
1.170-1....................................................    1545-0074
1.170-2....................................................    1545-0074
1.170-3....................................................    1545-0123
1.170A-1...................................................    1545-0074
1.170A-2...................................................    1545-0074
1.170A-4(A)(b).............................................    1545-0123
1.170A-8...................................................    1545-0074
1.170A-9...................................................    1545-0052
                                                               1545-0074
1.170A-11..................................................    1545-0123
                                                               1545-0074
1.170A-12..................................................    1545-0020
                                                               1545-0074
1.170A-13..................................................    1545-0074
                                                               1545-0754
                                                               1545-0908
                                                               1545-1431
1.170A-13(f)...............................................    1545-1464
1.170A-14..................................................    1545-0763
1.171-3....................................................    1545-0172
1.172-1....................................................    1545-0172
1.172-13...................................................    1545-0863
1.173-1....................................................    1545-0172
1.174-3....................................................    1545-0152
1.174-4....................................................    1545-0152
1.175-3....................................................    1545-0187
1.175-6....................................................    1545-0152
1.177-1....................................................    1545-0172
1.179-2....................................................    1545-1201
1.179-3....................................................    1545-1201
1.179-5....................................................    1545-0172
1.180-2....................................................    1545-0074
1.182-6....................................................    1545-0074
1.183-1....................................................    1545-0195
1.183-2....................................................    1545-0195
1.183-3....................................................    1545-0195
1.183-4....................................................    1545-0195
1.190-3....................................................    1545-0074
1.194-2....................................................    1545-0735
1.194-4....................................................    1545-0735
1.197-1T...................................................    1545-1425
1.213-1....................................................    1545-0074
1.215-1T...................................................    1545-0074
1.217-2....................................................    1545-0182
1.243-3....................................................    1545-0123
1.243-4....................................................    1545-0123
1.243-5....................................................    1545-0123
1.248-1....................................................    1545-0172
1.261-1....................................................    1545-1041
1.263(e)-1.................................................    1545-0123
1.263A-1...................................................    1545-0987
1.263A-1T..................................................    1545-0187
1.263A-2...................................................    1545-0987
1.263A-3...................................................    1545-0987
                                                               1545-0987
1.263A-8(b)(2)(iii)........................................    1545-1265
1.263A-9(d)(1).............................................    1545-1265
1.263A-9(f)(1)(ii).........................................    1545-1265
1.263A-9(f)(2)(iv).........................................    1545-1265
1.263A-9(g)(2)(iv)(C)......................................    1545-1265
1.263A-9(g)(3)(iv).........................................    1545-1265
1.265-1....................................................    1545-0074
1.265-2....................................................    1545-0123
1.266-1....................................................    1545-0123
1.267(f)-1.................................................    1545-0885
1.268-1....................................................    1545-0184
1.274-1....................................................    1545-0139
1.274-2....................................................    1545-0139
1.274-3....................................................    1545-0139
1.274-4....................................................    1545-0139
1.274-5A...................................................    1545-0139
                                                               1545-0771
1.274-5T...................................................    1545-0074
                                                               1545-0172
                                                               1545-0771
1.274-6....................................................    1545-0139
                                                               1545-0771
1.274-6T...................................................    1545-0074
                                                               1545-0771
1.274-7....................................................    1545-0139
1.274-8....................................................    1545-0139
1.279-6....................................................    1545-0123
1.280C-4...................................................    1545-1155
1.280F-3T..................................................    1545-0074
1.281-4....................................................    1545-0123
1.302-4....................................................    1545-0074
1.305-3....................................................    1545-0123
1.305-5....................................................    1545-1438
1.307-2....................................................    1545-0074
1.312-15...................................................    1545-0172
1.316-1....................................................    1545-0123
1.331-1....................................................    1545-0074
1.332-4....................................................    1545-0123
1.332-6....................................................    1545-0123
1.337(d)-1.................................................    1545-1160
1.337(d)-2.................................................    1545-1160
1.338-1....................................................    1545-1295
1.338(b)-1.................................................    1545-1295
1.338(h)(10)-1.............................................    1545-1295
1.341-7....................................................    1545-0123
1.351-3....................................................    1545-0074
1.355-5....................................................    1545-0123
1.362-2....................................................    1545-0123
1.367(a)-1T................................................    1545-0026
1.367(a)-2T................................................    1545-0026
1.367(a)-3.................................................    1545-0026
                                                               1545-1478
1.367(a)-3T................................................    1545-0026
1.367(a)-6T................................................    1545-0026
1.367(d)-1T................................................    1545-0026
1.367(e)-1T................................................    1545-1487
1.367(e)-2T................................................    1545-1124
1.368-3....................................................    1545-0123
1.371-1....................................................    1545-0123
1.371-2....................................................    1545-0123
1.374-3....................................................    1545-0123
1.381(b)-1.................................................    1545-0123
1.381(c)(4)-1..............................................    1545-0123
                                                               1545-0152
                                                               1545-0879
1.381(c)(5)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(6)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(8)-1..............................................    1545-0123
1.381(c)(10)-1.............................................    1545-0123
1.381(c)(11)-1(k)..........................................    1545-0123
1.381(c)(13)-1.............................................    1545-0123
1.381(c)(17)-1.............................................    1545-0045
1.381(c)(25)-1.............................................    1545-0045
1.382-1T...................................................    1545-0123

[[Page 838]]

                                                                        
1.382-2....................................................    1545-0123
1.382-2T...................................................    1545-0123
1.382-3....................................................    1545-1281
                                                               1545-1345
1.382-4....................................................    1545-1120
1.382-6....................................................    1545-1381
1.382-8T...................................................    1545-1437
1.382-9....................................................    1545-1260
                                                               1545-1120
                                                               1545-1275
                                                               1545-1324
1.382-91...................................................    1545-1260
                                                               1545-1324
1.383-1....................................................    1545-0074
                                                               1545-1120
1.401(a)-11................................................    1545-0710
1.401(a)-20................................................    1545-0928
1.401(a)-31................................................    1545-1341
1.401(a)-50................................................    1545-0710
1.401(a)(31)-1.............................................    1545-1341
1.401(b)-1.................................................    1545-0197
1.401(f)-1.................................................    1545-0710
1.401(k)-1.................................................    1545-1039
                                                               1545-1069
1.401-1....................................................    1545-0020
                                                               1545-0197
                                                               1545-0200
                                                               1545-0534
                                                               1545-0710
1.401-12(n)................................................    1545-0806
1.401-14...................................................    1545-0710
1.402(c)-2.................................................    1545-1341
1.402(f)-1.................................................    1545-1341
1.403(b)-1.................................................    1545-0710
1.403(b)-2.................................................    1545-1341
1.404(a)-4.................................................    1545-0710
1.404(a)-12................................................    1545-0710
1.404A-2...................................................    1545-0123
1.404A-6...................................................    1545-0123
1.408-2....................................................    1545-0390
1.408-5....................................................    1545-0747
1.408-6....................................................    1545-0203
                                                               1545-0390
1.408-7....................................................    1545-0119
1.410(a)-2.................................................    1545-0710
1.410(d)-1.................................................    1545-0710
1.411(a)-11T...............................................    1545-1471
1.411(d)-6T................................................    1545-1477
1.412(b)-5.................................................    1545-0710
1.412(c)(1)-2..............................................    1545-0710
1.412(c)(2)-1..............................................    1545-0710
1.412(c)(3)-2..............................................    1545-0710
1.414(c)-5.................................................    1545-0797
1.414(r)-1.................................................    1545-1221
1.415-2....................................................    1545-0710
1.415-6....................................................    1545-0710
1.417(e)-1T................................................    1545-1471
1.441-3T...................................................    1545-0134
1.442-1....................................................    1545-0074
                                                               1545-0123
                                                               1545-0134
                                                               1545-0152
1.442-2T...................................................    1545-0134
1.442-3T...................................................    1545-0134
1.443-1....................................................    1545-0123
1.444-3T...................................................    1545-1036
1.446-1....................................................    1545-0074
                                                               1545-0152
1.446-4(d).................................................    1545-1412
1.448-1(g).................................................    1545-0152
1.448-1(h).................................................    1545-0152
1.448-1(i).................................................    1545-0152
1.448-2T...................................................    1545-0152
1.451-1....................................................    1545-0091
1.451-3....................................................    1545-0152
                                                               1545-0736
1.451-4....................................................    1545-0123
1.451-5....................................................    1545-0074
1.451-6....................................................    1545-0074
1.451-7....................................................    1545-0074
1.453-1....................................................    1545-0152
1.453-2....................................................    1545-0152
1.453-8....................................................    1545-0152
                                                               1545-0228
1.453-10...................................................    1545-0152
1.453A-1...................................................    1545-0152
                                                               1545-1134
1.453A-2...................................................    1545-0152
                                                               1545-1134
1.453A-3...................................................    1545-0963
1.454-1....................................................    1545-0074
1.455-2....................................................    1545-0152
1.455-6....................................................    1545-0123
1.456-2....................................................    1545-0123
1.456-6....................................................    1545-0123
1.456-7....................................................    1545-0123
1.458-1....................................................    1545-0879
1.458-2....................................................    1545-0152
1.460-6....................................................    1545-1031
1.461-1....................................................    1545-0074
1.461-2....................................................    1545-0096
1.461-4....................................................    1545-0917
1.461-5....................................................    1545-0917
1.463-1T...................................................    1545-0916
1.465-1T...................................................    1545-0712
1.466-1T...................................................    1545-0152
1.466-4....................................................    1545-0152
1.468A-3...................................................    1545-1269
                                                               1545-1378
1.468A-4...................................................    1545-0954
1.468A-7...................................................    1545-0954
1.468A-8...................................................    1545-1269
1.468B-1(j)................................................    1545-1299
1.468B-2(k)................................................    1545-1299
1.468B-2(l)................................................    1545-1299
1.468B-3(b)................................................    1545-1299
1.468B-3(e)................................................    1545-1299
1.468B-5(b)................................................    1545-1299
1.469-1....................................................    1545-1008
1.469-2T...................................................    1545-0712
                                                               1545-1091
1.469-4T...................................................    1545-0985
                                                               1545-1037
1.471-2....................................................    1545-0123
1.471-5....................................................    1545-0123
1.471-6....................................................    1545-0123
1.471-8....................................................    1545-0123
1.471-11...................................................    1545-0123
                                                               1545-0152
1.472-1....................................................    1545-0042
                                                               1545-0152
1.472-2....................................................    1545-0152
1.472-3....................................................    1545-0042
1.472-5....................................................    1545-0152
1.472-8....................................................    1545-0028
                                                               1545-0042
1.475(b)-4.................................................    1545-1496
1.481-4....................................................    1545-0152
1.481-5....................................................    1545-0152
1.482-1....................................................    1545-1364
1.482-4....................................................    1545-1364
1.482-7....................................................    1545-1364
1.501(a)-1.................................................    1545-0056
                                                               1545-0057

[[Page 839]]

                                                                        
1.501(c)(3)-1..............................................    1545-0056
1.501(c)(9)-5..............................................    1545-0047
1.501(c)(17)-3.............................................    1545-0047
1.501(e)-1.................................................    1545-0814
1.503(c)-1.................................................    1545-0047
                                                               1545-0052
1.505(c)-1T................................................    1545-0916
1.507-1....................................................    1545-0052
1.507-2....................................................    1545-0052
1.508-1....................................................    1545-0052
                                                               1545-0056
1.509(a)-3.................................................    1545-0047
1.509(a)-5.................................................    1545-0047
1.509(c)-1.................................................    1545-0052
1.512(a)-1.................................................    1545-0687
1.512(a)-4.................................................    1545-0047
                                                               1545-0687
1.521-1....................................................    1545-0051
                                                               1545-0058
1.527-2....................................................    1545-0129
1.527-5....................................................    1545-0129
1.527-6....................................................    1545-0129
1.527-9....................................................    1545-0129
1.528-8....................................................    1545-0127
1.533-2....................................................    1545-0123
1.534-2....................................................    1545-0123
1.542-3....................................................    1545-0123
1.545-2....................................................    1545-0123
1.545-3....................................................    1545-0123
1.547-2....................................................    1545-0045
                                                               1545-0123
1.547-3....................................................    1545-0123
1.551-4....................................................    1545-0074
1.552-3....................................................    1545-0099
1.552-4....................................................    1545-0099
1.552-5....................................................    1545-0099
1.556-2....................................................    1545-0704
1.561-1....................................................    1545-0044
1.561-2....................................................    1545-0123
1.562-3....................................................    1545-0123
1.563-2....................................................    1545-0123
1.564-1....................................................    1545-0123
1.565-1....................................................    1545-0043
                                                               1545-0123
1.565-2....................................................    1545-0043
1.565-3....................................................    1545-0043
1.565-5....................................................    1545-0043
1.565-6....................................................    1545-0043
1.585-1....................................................    1545-0123
1.585-3....................................................    1545-0123
1.585-8....................................................    1545-1290
1.586-2....................................................    1545-0123
1.593-1....................................................    1545-0123
1.593-6....................................................    1545-0123
1.593-6A...................................................    1545-0123
1.593-7....................................................    1545-0123
1.595-1....................................................    1545-0123
1.597-2....................................................    1545-1300
1.597-4....................................................    1545-1300
1.597-6....................................................    1545-1300
1.597-7....................................................    1545-1300
1.611-2....................................................    1545-0099
1.611-3....................................................    1545-0007
                                                               1545-0099
1.612-4....................................................    1545-0074
1.612-5....................................................    1545-0099
1.613-3....................................................    1545-0099
1.613-4....................................................    1545-0099
1.613-6....................................................    1545-0099
1.613-7....................................................    1545-0099
1.613A-3...................................................    1545-0919
1.613A-3(e)................................................    1545-1251
1.613A-3(l)................................................    1545-0919
1.613A-5...................................................    1545-0099
1.613A-6...................................................    1545-0099
1.614-2....................................................    1545-0099
1.614-3....................................................    1545-0099
1.614-5....................................................    1545-0099
1.614-6....................................................    1545-0099
1.614-8....................................................    1545-0099
1.617-1....................................................    1545-0099
1.617-3....................................................    1545-0099
1.617-4....................................................    1545-0099
1.631-1....................................................    1545-0007
1.631-2....................................................    1545-0007
1.641(b)-2.................................................    1545-0092
1.642(c)-1.................................................    1545-0092
1.642(c)-2.................................................    1545-0092
1.642(c)-5.................................................    1545-0074
1.642(c)-6.................................................    1545-0020
                                                               1545-0074
                                                               1545-0092
1.642(g)-1.................................................    1545-0092
1.642(i)-1.................................................    1545-0092
1.663(b)-2.................................................    1545-0092
1.664-1....................................................    1545-0196
1.664-2....................................................    1545-0196
1.664-3....................................................    1545-0196
1.664-4....................................................    1545-0020
                                                               1545-0196
1.665(a)-0A through                                                     
1.665(g)-2A................................................    1545-0192
1.666(d)-1A................................................    1545-0092
1.671-4....................................................    1545-1442
1.701-1....................................................    1545-0099
1.702-1....................................................    1545-0074
1.703-1....................................................    1545-0099
1.704-2....................................................    1545-1090
1.706-1....................................................    1545-0099
                                                               1545-0074
                                                               1545-0134
1.706-1T...................................................    1545-0099
1.707-3(c)(2)..............................................    1545-1243
1.707-5(a)(7)(ii)..........................................    1545-1243
1.707-6(c).................................................    1545-1243
1.707-8....................................................    1545-1243
1.708-1....................................................    1545-0099
1.732-1....................................................    1545-0099
1.736-1....................................................    1545-0074
1.743-1....................................................    1545-0074
1.751-1....................................................    1545-0074
                                                               1545-0099
                                                               1545-0941
1.752-5....................................................    1545-1090
1.754-1....................................................    1545-0099
1.755-1....................................................    1545-0099
1.755-2T...................................................    1545-1021
1.761-2....................................................    1545-1338
1.801-1....................................................    1545-0123
                                                               1545-0128
1.801-3....................................................    1545-0123
1.801-5....................................................    1545-0128
1.801-8....................................................    1545-0128
1.804-4....................................................    1545-0128
1.811-2....................................................    1545-0128
1.812-2....................................................    1545-0128
1.815-6....................................................    1545-0128
1.818-4....................................................    1545-0128
1.818-5....................................................    1545-0128
1.818-8....................................................    1545-0128
1.819-2....................................................    1545-0128
1.821-1....................................................    1545-1027
1.821-3....................................................    1545-1027
1.821-4....................................................    1545-1027

[[Page 840]]

                                                                        
1.822-5....................................................    1545-1027
1.822-6....................................................    1545-1027
1.822-8....................................................    1545-1027
1.822-9....................................................    1545-1027
1.823-2....................................................    1545-1027
1.823-5....................................................    1545-1027
1.823-6....................................................    1545-1027
1.825-1....................................................    1545-1027
1.826-1....................................................    1545-1027
1.826-2....................................................    1545-1027
1.826-3....................................................    1545-1027
1.826-4....................................................    1545-1027
1.826-6....................................................    1545-1027
1.831-3....................................................    1545-0123
1.831-4....................................................    1545-0123
1.832-4....................................................    1545-1227
1.832-5....................................................    1545-0123
1.848-2(g)(8)..............................................    1545-1287
1.848-2(h)(3)..............................................    1545-1287
1.848-2(i)(4)..............................................    1545-1287
1.851-2....................................................    1545-1010
1.851-4....................................................    1545-0123
1.852-1....................................................    1545-0123
1.852-4....................................................    1545-0123
                                                               1545-0145
1.852-6....................................................    1545-0123
                                                               1545-0144
1.852-7....................................................    1545-0074
1.852-9....................................................    1545-0074
                                                               1545-0123
                                                               1545-0144
                                                               1545-0145
1.852-11...................................................    1545-1094
1.853-3....................................................    1545-0123
1.853-4....................................................    1545-0123
1.854-2....................................................    1545-0123
1.855-1....................................................    1545-0123
1.856-2....................................................    1545-0123
                                                               1545-1004
1.856-6....................................................    1545-0123
1.856-7....................................................    1545-0123
1.856-8....................................................    1545-0123
1.857-8....................................................    1545-0123
1.857-9....................................................    1545-0074
1.858-1....................................................    1545-0123
1.860-2....................................................    1545-0045
1.860-4....................................................    1545-0045
                                                               1545-1054
                                                               1545-1057
1.860E-2(a)(5).............................................    1545-1276
1.860E-2(a)(7).............................................    1545-1276
1.860E-2(b)(2).............................................    1545-1276
1.861-2....................................................    1545-0089
1.861-3....................................................    1545-0089
1.861-8....................................................    1545-0126
1.861-8(e)(6) and (g)......................................    1545-1224
1.861-9T...................................................    1545-0121
                                                               1545-1072
1.863-1....................................................    1545-1476
1.863-3....................................................    1545-1467
1.863-3A...................................................    1545-0126
1.863-4....................................................    1545-0126
1.863-7....................................................    1545-0132
1.864-4....................................................    1545-0126
1.871-1....................................................    1545-0096
1.871-6....................................................    1545-0795
1.871-7....................................................    1545-0089
1.871-10...................................................    1545-0089
                                                               1545-0165
1.874-1....................................................    1545-0089
1.881-4....................................................    1545-1440
1.882-4....................................................    1545-0126
1.884-0....................................................    1545-1070
1.884-1....................................................    1545-1070
1.884-2....................................................    1545-1070
1.884-2T...................................................    1545-0126
                                                               1545-1070
1.884-4....................................................    1545-1070
1.884-5....................................................    1545-1070
1.892-1T...................................................    1545-1053
1.892-2T...................................................    1545-1053
1.892-3T...................................................    1545-1053
1.892-4T...................................................    1545-1053
1.892-5T...................................................    1545-1053
1.892-6T...................................................    1545-1053
1.892-7T...................................................    1545-1053
1.897-2....................................................    1545-0123
                                                               1545-0902
1.897-3....................................................    1545-0123
1.897-5T...................................................    1545-0902
1.897-6T...................................................    1545-0902
1.901-2....................................................    1545-0746
1.901-2A...................................................    1545-0746
1.901-3....................................................    1545-0122
1.902-1....................................................    1545-0122
                                                               1545-1458
1.904-1....................................................    1545-0121
                                                               1545-0122
1.904-2....................................................    1545-0121
                                                               1545-0122
1.904-3....................................................    1545-0121
1.904-4....................................................    1545-0121
1.904-5....................................................    1545-0121
1.904(f)-1.................................................    1545-0121
                                                               1545-0122
1.904(f)-2.................................................    1545-0121
1.904(f)-3.................................................    1545-0121
1.904(f)-4.................................................    1545-0121
1.904(f)-5.................................................    1545-0121
1.904(f)-6.................................................    1545-0121
1.904(f)-7.................................................    1545-1127
1.905-2....................................................    1545-0122
1.905-3T...................................................    1545-1056
1.905-4T...................................................    1545-1056
1.905-5T...................................................    1545-1056
1.911-1....................................................    1545-0067
                                                               1545-0070
1.911-2....................................................    1545-0067
                                                               1545-0070
1.911-3....................................................    1545-0067
                                                               1545-0070
1.911-4....................................................    1545-0067
                                                               1545-0070
1.911-5....................................................    1545-0067
                                                               1545-0070
1.911-6....................................................    1545-0067
                                                               1545-0070
1.911-7....................................................    1545-0067
                                                               1545-0070
1.913-13...................................................    1545-0067
1.921-1T...................................................    1545-0190
                                                               1545-0884
                                                               1545-0935
                                                               1545-0939
1.921-2....................................................    1545-0884
1.921-3T...................................................    1545-0935
1.923-1T...................................................    1545-0935
1.924(a)-1T................................................    1545-0935
1.925(a)-1T................................................    1545-0935
1.925(b)-1T................................................    1545-0935
1.926(a)-1T................................................    1545-0935
1.927(a)-1T................................................    1545-0935
1.927(b)-1T................................................    1545-0935
1.927(d)-1.................................................    1545-0884

[[Page 841]]

                                                                        
1.927(d)-2T................................................    1545-0935
1.927(e)-1T................................................    1545-0935
1.927(e)-2T................................................    1545-0935
1.927(f)-1.................................................    1545-0884
1.931-1....................................................    1545-0074
                                                               1545-0123
1.934-1....................................................    1545-0782
1.935-1....................................................    1545-0074
                                                               1545-0087
                                                               1545-0803
1.936-1....................................................    1545-0215
                                                               1545-0217
1.936-4....................................................    1545-0215
1.936-5....................................................    1545-0704
1.936-6....................................................    1545-0215
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1.936-10(c)................................................    1545-1138
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1.1015-1...................................................    1545-0020
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1.1031(d)-1T...............................................    1545-1021
1.1033(a)-2................................................    1545-0184
1.1033(g)-1................................................    1545-0184
1.1034-1...................................................    1545-0072
1.1039-1...................................................    1545-0184
1.1041-1T..................................................    1545-0074
1.1042-1T..................................................    1545-0916
1.1044(a)-1................................................    1545-1421
1.1060-1T..................................................    1545-1021
1.1071-1...................................................    1545-0184
1.1071-4...................................................    1545-0184
1.1081-4...................................................    1545-0028
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1.1092(b)-1T...............................................    1545-0644
1.1092(b)-2T...............................................    1545-0644
1.1092(b)-3T...............................................    1545-0644
1.1092(b)-4T...............................................    1545-0644
1.1092(b)-5T...............................................    1545-0644
1.1211-1...................................................    1545-0074
1.1212-1...................................................    1545-0074
1.1221-2...................................................    1545-1403
1.1221-2(d)(2)(iv).........................................    1545-1480
1.1221-2(e)(5).............................................    1545-1480
1.1221-2(g)(5)(ii).........................................    1545-1480
1.1221-2(g)(6)(ii).........................................    1545-1480
1.1221-2(g)(6)(iii)........................................    1545-1480
1.1221-2T(c)...............................................    1545-1403
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1.1273-2(h)(2).............................................    1545-1353
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1.1367-1(f)................................................    1545-1139
1.1368-1(f)(2).............................................    1545-1139
1.1368-1(f)(3).............................................    1545-1139
1.1368-1(f)(4).............................................    1545-1139
1.1368-1(g)(2).............................................    1545-1139
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1.1402(b)-1................................................    1545-0171
1.1402(c)-2................................................    1545-0074
1.1402(e)(1)-1.............................................    1545-0074
1.1402(e)(2)-1.............................................    1545-0074
1.1402(e)-1A...............................................    1545-0168
1.1402(e)-2A...............................................    1545-0168
1.1402(e)-3A...............................................    1545-0168
1.1402(e)-4A...............................................    1545-0168
1.1402(e)-5A...............................................    1545-0168
1.1402(f)-1................................................    1545-0074
1.1402(h)-1................................................    1545-0064
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1.1502-77T.................................................    1545-1046
1.1502-78..................................................    1545-0582
1.1502-95T.................................................    1545-1218
1.1503-2A..................................................    1545-1083
1.1552-1...................................................    1545-0123
1.1561-3...................................................    1545-0123
1.1563-1...................................................    1545-0123
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1.6015(i)-1................................................    1545-0087
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1.6031(b)-1T...............................................    1545-0099
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1.6038-2...................................................    1545-0704
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1.6038A-2..................................................    1545-1191
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1.6038B-1T.................................................    1545-0026
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                                                               1545-1031
1.6661-4...................................................    1545-0739
1.6662-3(c)................................................    1545-0889
1.6662-4(e) and (f)........................................    1545-0889
1.6662-6...................................................    1545-1426
1.6694-1...................................................    1545-0074
1.6694-2...................................................    1545-0074
1.6694-2(c)................................................    1545-1231
1.6694-3(e)................................................    1545-1231
1.6695-1...................................................    1545-0074
                                                               1545-1385
1.6696-1...................................................    1545-0074
                                                               1545-0240
1.6851-1...................................................    1545-0086
                                                               1545-0138
1.6851-2...................................................    1545-0086
                                                               1545-0138
1.7476-1...................................................    1545-0197

[[Page 845]]

                                                                        
1.7476-2...................................................    1545-0197
1.7519-2T..................................................    1545-1036
1.7520-1...................................................    1545-1343
1.7520-2...................................................    1545-1343
1.7520-3...................................................    1545-1343
1.7520-4...................................................    1545-1343
1.9100-1...................................................    1545-0074
1.9101-1...................................................    1545-0008
2.1-4......................................................    1545-0123
2.1-5......................................................    1545-0123
2.1-6......................................................    1545-0123
2.1-10.....................................................    1545-0123
2.1-11.....................................................    1545-0123
2.1-12.....................................................    1545-0123
2.1-13.....................................................    1545-0123
2.1-20.....................................................    1545-0123
2.1-22.....................................................    1545-0123
2.1-26.....................................................    1545-0123
3.2........................................................    1545-0123
4.954-1....................................................    1545-1068
4.954-2....................................................    1545-1068
5.6411-1...................................................    1545-0098
                                                               1545-0582
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
5c.44F-1...................................................    1545-0619
5c.128-1...................................................    1545-0123
5c.168(f)(8)-1.............................................    1545-0123
5c.168(f)(8)-2.............................................    1545-0123
5c.168(f)(8)-6.............................................    1545-0123
5c.168(f)(8)-8.............................................    1545-0123
5c.305-1...................................................    1545-0110
5c.442-1...................................................    1545-0152
5f.103-1...................................................    1545-0720
5f.103-3...................................................    1545-0720
5f.6045-1..................................................    1545-0715
6a.103A-2..................................................    1545-0123
                                                               1545-0720
6a.103A-3..................................................    1545-0720
7.367(b)-1.................................................    1545-0026
7.367(b)-3.................................................    1545-0026
7.367(b)-7.................................................    1545-0026
7.367(b)-9.................................................    1545-0026
7.367(b)-10................................................    1545-0026
7.465-1....................................................    1545-0712
7.465-2....................................................    1545-0712
7.465-3....................................................    1545-0712
7.465-4....................................................    1545-0712
7.465-5....................................................    1545-0712
7.936-1....................................................    1545-0217
7.999-1....................................................    1545-0216
7.6039A-1..................................................    1545-0015
7.6041-1...................................................    1545-0115
11.410-1...................................................    1545-0710
11.412(c)-7................................................    1545-0710
11.412(c)-11...............................................    1545-0710
12.7.......................................................    1545-0190
12.8.......................................................    1545-0191
12.9.......................................................    1545-0195
14a.422A-1.................................................    1545-0123
15A.453-1..................................................    1545-0228
16.3-1.....................................................    1545-0159
16A.126-2..................................................    1545-0074
16A.1255-1.................................................    1545-0184
16A.1255-2.................................................    1545-0184
18.1371-1..................................................    1545-0130
18.1378-1..................................................    1545-0130
18.1379-1..................................................    1545-0130
18.1379-2..................................................    1545-0130
20.2011-1..................................................    1545-0015
20.2014-5..................................................    1545-0015
                                                               1545-0260
20.2014-6..................................................    1545-0015
20.2016-1..................................................    1545-0015
20.2031-2..................................................    1545-0015
20.2031-3..................................................    1545-0015
20.2031-4..................................................    1545-0015
20.2031-6..................................................    1545-0015
20.2031-7..................................................    1545-0020
20.2031-10.................................................    1545-0015
20.2032-1..................................................    1545-0015
20.2032A-3.................................................    1545-0015
20.2032A-4.................................................    1545-0015
20.2032A-8.................................................    1545-0015
20.2039-4..................................................    1545-0015
20.2051-1..................................................    1545-0015
20.2053-3..................................................    1545-0015
20.2053-9..................................................    1545-0015
20.2053-10.................................................    1545-0015
20.2055-1..................................................    1545-0015
20.2055-2..................................................    1545-0015
                                                               1545-0092
20.2055-3..................................................    1545-0015
20.2056(b)-4...............................................    1545-0015
20.2056(b)-7...............................................    1545-0015
20.2056A-2.................................................    1545-1443
20.2056A-3.................................................    1545-1360
20.2056A-4.................................................    1545-1360
20.2056A-10................................................    1545-1360
20.2106-1..................................................    1545-0015
20.2106-2..................................................    1545-0015
20.2204-1..................................................    1545-0015
20.2204-2..................................................    1545-0015
20.6001-1..................................................    1545-0015
20.6011-1..................................................    1545-0015
20.6018-1..................................................    1545-0015
                                                               1545-0531
20.6018-2..................................................    1545-0015
20.6018-3..................................................    1545-0015
20.6018-4..................................................    1545-0015
                                                               1545-0022
20.6036-2..................................................    1545-0015
20.6061-1..................................................    1545-0015
20.6065-1..................................................    1545-0015
20.6075-1..................................................    1545-0015
20.6081-1..................................................    1545-0015
                                                               1545-0181
20.6091-1..................................................    1545-0015
20.6161-1..................................................    1545-0015
                                                               1545-0181
20.6161-2..................................................    1545-0015
                                                               1545-0181
20.6163-1..................................................    1545-0015
20.6166-1..................................................    1545-0181
20.6166A-1.................................................    1545-0015
20.6166A-3.................................................    1545-0015
20.6324A-1.................................................    1545-0754
20.7520-1..................................................    1545-1343
20.7520-2..................................................    1545-1343
20.7520-3..................................................    1545-1343
20.7520-4..................................................    1545-1343
22.0.......................................................    1545-0015
25.2511-2..................................................    1545-0020
25.2512-2..................................................    1545-0020
25.2512-3..................................................    1545-0020
25.2512-5..................................................    1545-0020
25.2512-9..................................................    1545-0020
25.2513-1..................................................    1545-0020
25.2513-2..................................................    1545-0020
                                                               1545-0021
25.2513-3..................................................    1545-0020

[[Page 846]]

                                                                        
25.2518-2..................................................    1545-0959
25.2522(a)-1...............................................    1545-0196
25.2522(c)-3...............................................    1545-0020
                                                               1545-0196
25.2523(a)-1...............................................    1545-0020
                                                               1545-0196
25.2523(f)-1...............................................    1545-0015
25.2701-2..................................................    1545-1241
25.2701-4..................................................    1545-1241
25.2701-5..................................................    1545-1273
25.2702-6..................................................    1545-1273
25.6001-1..................................................    1545-0020
                                                               1545-0022
25.6011-1..................................................    1545-0020
25.6019-1..................................................    1545-0020
25.6019-2..................................................    1545-0020
25.6019-3..................................................    1545-0020
25.6019-4..................................................    1545-0020
25.6061-1..................................................    1545-0020
25.6065-1..................................................    1545-0020
25.6075-1..................................................    1545-0020
25.6081-1..................................................    1545-0020
25.6091-1..................................................    1545-0020
25.6091-2..................................................    1545-0020
25.6151-1..................................................    1545-0020
25.6161-1..................................................    1545-0020
25.7520-1..................................................    1545-1343
25.7520-2..................................................    1545-1343
25.7520-3..................................................    1545-1343
25.7520-4..................................................    1545-1343
26.2601-1..................................................    1545-0985
26.2632-1..................................................    1545-0985
26.2642-1..................................................    1545-0985
26.2642-2..................................................    1545-0985
26.2642-3..................................................    1545-0985
26.2642-4..................................................    1545-0985
26.2652-2..................................................    1545-0985
26.2662-1..................................................    1545-0015
                                                               1545-0985
26.2662-2..................................................    1545-0985
31.3102-3..................................................    1545-0029
                                                               1545-0059
                                                               1545-0065
31.3121(b)(19)-1...........................................    1545-0029
31.3121(d)-1...............................................    1545-0004
31.3121(i)-1...............................................    1545-0034
31.3121(k)-4...............................................    1545-0137
31.3121(r)-1...............................................    1545-0029
31.3121(s)-1...............................................    1545-0029
31.3302(a)-2...............................................    1545-0028
31.3302(a)-3...............................................    1545-0028
31.3302(b)-2...............................................    1545-0028
31.3302(e)-1...............................................    1545-0028
31.3306(c)(18)-1...........................................    1545-0029
31.3401(a)-1...............................................    1545-0029
31.3401(a)(6)-1............................................    1545-0029
                                                               1545-0096
                                                               1545-0795
31.3401(a)(7)-1............................................    1545-0029
31.3401(a)(8)(A)-1 ........................................    1545-0029
                                                               1545-0666
31.3401(a)(8)(C)-1 ........................................    1545-0029
31.3401(a)(15)-1...........................................    1545-0182
31.3401(c)-1...............................................    1545-0004
31.3402(b)-1...............................................    1545-0010
31.3402(c)-1...............................................    1545-0010
31.3402(f)(1)-1............................................    1545-0010
31.3402(f)(2)-1............................................    1545-0010
                                                               1545-0410
31.3402(f)(3)-1............................................    1545-0010
31.3402(f)(4)-1............................................    1545-0010
31.3402(f)(4)-2............................................    1545-0010
31.3402(f)(5)-1............................................    1545-0010
                                                               1545-1435
31.3402(h)(1)-1............................................    1545-0029
31.3402(h)(3)-1............................................    1545-0010
31.3402(h)(3)-1............................................    1545-0029
31.3402(h)(4)-1............................................    1545-0010
31.3402(i)-(1).............................................    1545-0010
31.3402(i)-(2).............................................    1545-0010
31.3402(k)-1...............................................    1545-0065
31.3402(l)-(1).............................................    1545-0010
31.3402(m)-(1).............................................    1545-0010
31.3402(n)-(1).............................................    1545-0010
31.3402(o)-2...............................................    1545-0415
31.3402(o)-3...............................................    1545-0008
                                                               1545-0010
                                                               1545-0415
                                                               1545-0717
31.3402(p)-1...............................................    1545-0415
                                                               1545-0717
31.3402(q)-1...............................................    1545-0238
                                                               1545-0239
31.3404-1..................................................    1545-0029
31.3405(c)-1...............................................    1545-1341
31.3406(a)-1...............................................    1545-0112
31.3406(a)-2...............................................    1545-0112
31.3406(a)-3...............................................    1545-0112
31.3406(a)-4...............................................    1545-0112
31.3406(b)(2)-1............................................    1545-0112
31.3406(b)(2)-2............................................    1545-0112
31.3406(b)(2)-3............................................    1545-0112
31.3406(b)(2)-4............................................    1545-0112
31.3406(b)(2)-5............................................    1545-0112
31.3406(b)(3)-1............................................    1545-0112
31.3406(b)(3)-2............................................    1545-0112
31.3406(b)(3)-3............................................    1545-0112
31.3406(b)(3)-4............................................    1545-0112
31.3406(b)(4)-1............................................    1545-0112
31.3406(c)-1...............................................    1545-0112
31.3406(d)-1...............................................    1545-0112
31.3406(d)-2...............................................    1545-0112
31.3406(d)-3...............................................    1545-0112
31.3406(d)-4...............................................    1545-0112
31.3406(d)-5...............................................    1545-0112
31.3406(e)-1...............................................    1545-0112
31.3406(f)-1...............................................    1545-0112
31.3406(g)-1...............................................    1545-0096
                                                               1545-0112
31.3406(g)-2...............................................    1545-0112
31.3406(g)-3...............................................    1545-0112
31.3406(h)-1...............................................    1545-0112
31.3406(h)-2...............................................    1545-0112
31.3406(h)-3...............................................    1545-0112
31.3406(i)-1...............................................    1545-0112
31.3501(a)-1T..............................................    1545-0771
31.3503-1..................................................    1545-0024
31.3504-1..................................................    1545-0029
31.6001-1..................................................    1545-0798
31.6001-2..................................................    1545-0034
                                                               1545-0798
31.6001-3..................................................    1545-0798
31.6001-4..................................................    1545-0028
31.6001-5..................................................    1545-0798
31.6001-6..................................................    1545-0029
                                                               1459-0798
31.6011(a)-1...............................................    1545-0029
                                                               1545-0034
                                                               1545-0035
                                                               1545-0059
                                                               1545-0074
                                                               1545-0718
                                                               1545-0256
31.6011(a)-2...............................................    1545-0001

[[Page 847]]

                                                                        
                                                               1545-0002
31.6011(a)-3...............................................    1545-0028
31.6011(a)-3A..............................................    1545-0955
31.6011(a)-4...............................................    1545-0034
                                                               1545-0035
                                                               1545-0718
                                                               1545-1413
31.6011(a)-5...............................................    1545-0718
                                                               1545-0028
31.6011(a)-6...............................................    1545-0028
31.6011(a)-7...............................................    1545-0074
31.6011(a)-8...............................................    1545-0028
31.6011(a)-9...............................................    1545-0028
31.6011(a)-10..............................................    1545-0112
31.6011(b)-1...............................................    1545-0003
31.6011(b)-2...............................................    1545-0029
31.6051-1..................................................    1545-0008
                                                               1545-0182
                                                               1545-0458
31.6051-2..................................................    1545-0008
31.6051-3..................................................    1545-0008
31.6053-1..................................................    1545-0029
                                                               1545-0062
                                                               1545-0064
                                                               1545-0065
31.6053-2..................................................    1545-0008
31.6053-3..................................................    1545-0065
                                                               1545-0714
31.6053-4..................................................    1545-0065
31.6065(a)-1...............................................    1545-0029
31.6071(a)-1...............................................    1545-0001
                                                               1545-0028
                                                               1545-0029
31.6071(a)-1A..............................................    1545-0955
31.6081(a)-1...............................................    1545-0008
                                                               1545-0028
31.6091-1..................................................    1545-0028
                                                               1545-0029
31.6157-1..................................................    1545-0955
31.6205-1..................................................    1545-0029
31.6301(c)-1AT.............................................    1545-0035
                                                               1545-0112
                                                               1545-0257
31.6302-1..................................................    1545-1413
31.6302-2..................................................    1545-1413
31.6302-3..................................................    1545-1413
31.6302-4..................................................    1545-1413
31.6302(c)-2...............................................    1545-0001
                                                               1545-0257
31.6302(c)-2A..............................................    1545-0955
31.6302(c)-3...............................................    1545-0257
31.6402(a)-2...............................................    1545-0256
31.6413(a)-1...............................................    1545-0029
31.6413(a)-2...............................................    1545-0029
                                                               1545-0256
31.6413(c)-1...............................................    1545-0029
                                                               1545-0171
31.6414-1..................................................    1545-0029
32.1.......................................................    1545-0029
                                                               1545-0415
32.2.......................................................    1545-0029
35a.3406-2.................................................    1545-0112
35a.9999-3.................................................    1545-0112
35a.9999-5.................................................    1545-0029
36.3121(l)(1)-1............................................    1545-0137
36.3121(l)(1)-2............................................    1545-0137
36.3121(l)(3)-1............................................    1545-0123
36.3121(1)(7)-1............................................    1545-0123
36.3121(1)(10)-1...........................................    1545-0029
36.3121(1)(10)-3...........................................    1545-0029
36.3121(1)(10)-4...........................................    1545-0257
40.6302(c)-3(b)(2)(ii).....................................    1545-1296
40.6302(c)-3(b)(2)(iii)....................................    1545-1296
40.6302(c)-3(e)............................................    1545-1296
40.6302(c)-3(f)(2)(ii).....................................    1545-1296
41.4481-1..................................................    1545-0143
41.4481-1T.................................................    1545-0143
41.4481-2..................................................    1545-0143
41.4482(b)-1T..............................................    1545-0143
41.4483-3..................................................    1545-0143
41.6001-1..................................................    1545-0143
41.6001-2..................................................    1545-0143
41.6001-3..................................................    1545-0143
41.6071(a)-1...............................................    1545-0143
41.6081(a)-1...............................................    1545-0143
41.6091-1..................................................    1545-0143
41.6109-1..................................................    1545-0143
41.6151(a)-1...............................................    1545-0143
41.6156-1..................................................    1545-0143
41.6161(a)(1)-1............................................    1545-0143
44.4401-1..................................................    1545-0235
44.4403-1..................................................    1545-0235
44.4412-1..................................................    1545-0236
44.4901-1..................................................    1545-0236
44.4905-1..................................................    1545-0236
44.4905-2..................................................    1545-0236
44.6001-1..................................................    1545-0235
44.6011(a)-1...............................................    1545-0235
                                                               1545-0236
44.6071-1..................................................    1545-0235
44.6091-1..................................................    1545-0235
44.6151-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-2..................................................    1545-0235
46.4371-4..................................................    1545-0023
46.4374-1..................................................    1545-0023
46.4701-1..................................................    1545-0023
                                                               1545-0257
48.4041-4..................................................    1545-0023
48.4041-5..................................................    1545-0023
48.4041-6..................................................    1545-0023
48.4041-7..................................................    1545-0023
48.4041-9..................................................    1545-0023
48.4041-10.................................................    1545-0023
48.4041-11.................................................    1545-0023
48.4041-12.................................................    1545-0023
48.4041-13.................................................    1545-0023
48.4041-18.................................................    1545-0023
48.4041-19.................................................    1545-0023
48.4041-20.................................................    1545-0023
48.4041-21.................................................    1545-1270
48.4042-2..................................................    1545-0023
48.4061(a)-1...............................................    1545-0023
48.4061(a)-2...............................................    1545-0023
48.4061(b)-3...............................................    1545-0023
48.4064-1..................................................    1545-0014
                                                               1545-0242
48.4071-1..................................................    1545-0023
48.4073-1..................................................    1545-0023
48.4073-3..................................................    1545-0023
                                                               1545-1074
                                                               1545-1087
48.4081-2(c)(3)............................................    1545-1270
48.4081-3(d)(2)(iii).......................................    1545-1270
48.4081-3(e)(2)(ii)........................................    1545-1270
48.4081-3(f)(2)(ii)........................................    1545-1270
48.4081-4(b)(2)(ii)........................................    1545-1270
48.4081-4(b)(3)(i).........................................    1545-1270
48.4081-4(c)...............................................    1545-1270
48.4081-6(c)(1)(ii)........................................    1545-1270
48.4081-7..................................................    1545-1270
48.4081-9..................................................    1545-1270
48.4082-2..................................................    1545-1418

[[Page 848]]

                                                                        
48.4101-1..................................................    1545-1418
48.4101-2..................................................    1545-1418
48.4161(a)-1...............................................    1545-0723
48.4161(a)-2...............................................    1545-0723
48.4161(a)-3...............................................    1545-0723
48.4161(b)-1...............................................    1545-0723
                                                               1545-0723
48.4216(a)-2...............................................    1545-0023
48.4216(a)-3...............................................    1545-0023
48.4216(c)-1...............................................    1545-0023
48.4221-1..................................................    1545-0023
48.4221-2..................................................    1545-0023
48.4221-3..................................................    1545-0023
48.4221-4..................................................    1545-0023
48.4221-5..................................................    1545-0023
48.4221-6..................................................    1545-0023
48.4221-7..................................................    1545-0023
48.4222(a)-1...............................................    1545-0023
                                                               1545-0014
48.4222(b)-1...............................................    1545-0023
48.4223-1..................................................    1545-0023
                                                               1545-0723
                                                               1545-0723
                                                               1545-0723
                                                               1545-0257
48.6302(c)-1...............................................    1545-0023
                                                               1545-0257
48.6412-1..................................................    1545-0723
48.6416(a)-1...............................................    1545-0023
                                                               1545-0723
48.6416(a)-2...............................................    1545-0723
48.6416(a)-3...............................................    1545-0723
48.6416(b)(2)-3............................................    1545-1087
48.6416(b)(1)-1............................................    1545-0723
48.6416(b)(1)-2............................................    1545-0723
48.6416(b)(1)-3............................................    1545-0723
48.6416(b)(1)-4............................................    1545-0723
48.6416(b)(2)-1............................................    1545-0723
48.6416(b)(2)-2............................................    1545-0723
48.6416(b)(2)-3............................................    1545-0723
                                                               1545-1087
48.6416(b)(2)-4............................................    1545-0723
48.6416(b)(3)-1............................................    1545-0723
48.6416(b)(3)-2............................................    1545-0723
48.6416(b)(3)-3............................................    1545-0723
48.6416(b)(4)-1............................................    1545-0723
48.6416(b)(5)-1............................................    1545-0723
48.6416(c)-1...............................................    1545-0723
48.6416(e)-1...............................................    1545-0023
                                                               1545-0723
48.6416(f)-1...............................................    1545-0023
                                                               1545-0723
48.6416(g)-1...............................................    1545-0723
48.6416(h)-1...............................................    1545-0723
48.6420(c)-2...............................................    1545-0023
48.6420(f)-1...............................................    1545-0023
48.6420-1..................................................    1545-0162
                                                               1545-0723
48.6420-2..................................................    1545-0162
                                                               1545-0723
48.6420-3..................................................    1545-0162
                                                               1545-0723
48.6420-4..................................................    1545-0162
                                                               1545-0723
48.6420-5..................................................    1545-0162
                                                               1545-0723
48.6420-6..................................................    1545-0162
                                                               1545-0723
48.6420-7..................................................    1545-0162
                                                               1545-0723
48.6421-0..................................................    1545-0162
                                                               1545-0723
48.6421-1..................................................    1545-0162
                                                               1545-0723
48.6421-2..................................................    1545-0162
                                                               1545-0723
48.6421-3..................................................    1545-0162
                                                               1545-0723
48.6421-4..................................................    1545-0162
                                                               1545-0723
48.6421-5..................................................    1545-0162
                                                               1545-0723
48.6421-6..................................................    1545-0162
                                                               1545-0723
48.6421-7..................................................    1545-0162
                                                               1545-0723
48.6424-0..................................................    1545-0723
48.6424-1..................................................    1545-0723
48.6424-2..................................................    1545-0723
48.6424-3..................................................    1545-0723
48.6424-4..................................................    1545-0723
48.6424-5..................................................    1545-0723
48.6424-6..................................................    1545-0723
48.6427-0..................................................    1545-0723
48.6427-1..................................................    1545-0023
                                                               1545-0162
                                                               1545-0723
48.6427-2..................................................    1545-0162
                                                               1545-0723
48.6427-3..................................................    1545-0723
48.6427-4..................................................    1545-0723
48.6427-5..................................................    1545-0723
48.6427-8..................................................    1545-1418
48.6427-9..................................................    1545-1418
49.4251-1..................................................    1545-1075
49.4251-2..................................................    1545-1075
49.4253-3..................................................    1545-0023
49.4253-4..................................................    1545-0023
49.4264(b)-1...............................................    1545-0023
                                                               1545-0226
                                                               1545-0226
                                                               1545-0912
                                                               1545-0912
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
                                                               1545-0225
                                                               1545-0224
                                                               1545-0230
49.4271-1(d)...............................................    1545-0685
52.4682-1(b)(2)(iii).......................................    1545-1153
52.4682-2(b)...............................................    1545-1153
                                                               1545-1361
52.4682-2(d)...............................................    1545-1153
                                                               1545-1361
52.4682-3(c)(2)............................................    1545-1153
52.4682-3(g)...............................................    1545-1153
52.4682-4(f)...............................................    1545-1153
                                                               1545-0257
52.4682-5(d)...............................................    1545-1361
52.4682-5(f)...............................................    1545-1361
53.4940-1..................................................    1545-0052
                                                               1545-0196
53.4942(a)-1...............................................    1545-0052
53.4942(a)-2...............................................    1545-0052
53.4942(a)-3...............................................    1545-0052
53.4942(b)-3...............................................    1545-0052
53.4945-1..................................................    1545-0052
53.4945-4..................................................    1545-0052
53.4945-5..................................................    1545-0052
53.4945-6..................................................    1545-0052
53.4947-1..................................................    1545-0196
53.4947-2..................................................    1545-0196
53.4948-1..................................................    1545-0052

[[Page 849]]

                                                                        
53.4961-2..................................................    1545-0024
53.4963-1..................................................    1545-0024
53.6001-1..................................................    1545-0052
53.6011-1..................................................    1545-0049
                                                               1545-0052
                                                               1545-0092
                                                               1545-0196
53.6065-1..................................................    1545-0052
53.6071-1..................................................    1545-0049
53.6081-1..................................................    1545-0066
                                                               1545-0148
53.6161-1..................................................    1545-0575
54.4972-1..................................................    1545-0197
54.4975-7..................................................    1545-0575
54.4977-1T.................................................    1545-0771
54.4981A-1T................................................    1545-0203
54.6011-1..................................................    1545-0575
54.6011-1T.................................................    1545-0575
55.6001-1..................................................    1545-0123
55.6011-1..................................................    1545-0999
                                                               1545-0123
                                                               1545-1016
55.6061-1..................................................    1545-0999
55.6071-1..................................................    1545-0999
56.4911-6..................................................    1545-0052
56.4911-7..................................................    1545-0052
56.4911-9..................................................    1545-0052
56.4911-10.................................................    1545-0052
56.6001-1..................................................    1545-1049
56.6011-1..................................................    1545-1049
56.6081-1..................................................    1545-1049
56.6161-1..................................................    1545-1049
                                                               1545-0257
145.4051-1.................................................    1545-0745
145.4052-1.................................................    1545-0120
                                                               1545-0745
                                                               1545-1076
145.4061-1.................................................    1545-0745
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
156.6001-1.................................................    1545-1049
156.6011-1.................................................    1545-1049
156.6081-1.................................................    1545-1049
156.6161-1.................................................    1545-1049
301.6011-2.................................................    1545-0225
                                                               1545-0350
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
301.6017-1.................................................    1545-0090
301.6034-1.................................................    1545-0092
301.6035-1.................................................    1545-0123
301.6036-1.................................................    1545-0013
                                                               1545-0773
301.6047-1.................................................    1545-0367
                                                               1545-0957
301.6057-1.................................................    1545-0710
301.6057-2.................................................    1545-0710
301.6058-1.................................................    1545-0710
301.6059-1.................................................    1545-0710
301.6103(c)-1..............................................    1545-0280
301.6104(a)-1..............................................    1545-0495
301.6104(a)-5..............................................    1545-0056
301.6104(a)-6..............................................    1545-0056
301.6104(b)-1..............................................    1545-0094
                                                               1545-0742
301.6104(d)-1..............................................    1545-0092
301.6109-1.................................................    1545-0003
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
                                                               1545-1461
301.6110-3.................................................    1545-0074
301.6110-5.................................................    1545-0074
301.6111-1T................................................    1545-0865
                                                               1545-0881
301.6112-1T................................................    1545-0865
301.6222(a)-2T.............................................    1545-0790
301.6222(b)-1T.............................................    1545-0790
301.6222(b)-2T.............................................    1545-0790
301.6222(b)-3T.............................................    1545-0790
301.6227(b)-1T.............................................    1545-0790
                                                               1545-0790
301.6231(a)(7)-1...........................................    1545-0790
301.6241-1T................................................    1545-0130
301.6316-4.................................................    1545-0074
301.6316-5.................................................    1545-0074
301.6316-6.................................................    1545-0074
301.6316-7.................................................    1545-0029
301.6324A-1................................................    1545-0015
301.6361-1.................................................    1545-0074
                                                               1545-0024
301.6361-2.................................................    1545-0024
301.6361-3.................................................    1545-0074
301.6402-2.................................................    1545-0024
                                                               1545-0073
                                                               1545-0091
301.6402-3.................................................    1545-0055
                                                               1545-0073
                                                               1545-0091
                                                               1545-0132
301.6402-5.................................................    1545-0928
301.6404-1.................................................    1545-0024
301.6404-2T................................................    1545-0024
301.6404-3.................................................    1545-0024
301.6405-1.................................................    1545-0024
301.6501(c)-1..............................................    1545-1241
301.6501(d)-1..............................................    1545-0074
                                                               1545-0430
301.6501(o)-2..............................................    1545-0728
301.6511(d)-1..............................................    1545-0582
                                                               1545-0024
301.6511(d)-2..............................................    1545-0582
                                                               1545-0024
301.6511(d)-3..............................................    1545-0024
                                                               1545-0582
301.6652-2.................................................    1545-0092
301.6656-1.................................................    1545-0794
301.6656-2.................................................    1545-0794
301.6685-1.................................................    1545-0092
301.6689-1T................................................    1545-1056
301.6707-1T................................................    1545-0865
                                                               1545-0881
301.6708-1T................................................    1545-0865
301.6712-1.................................................    1545-1126
301.6723-1A(d).............................................    1545-0909
301.6903-1.................................................    1545-0013
301.6905-1.................................................    1545-0074
301.7001-1.................................................    1545-0123
301.7101-1.................................................    1545-1029
301.7207-1.................................................    1545-0092
301.7216-2.................................................    1545-0074
301.7216-2(o)..............................................    1545-1209
301.7425-3.................................................    1545-0854
301.7430-2(c)..............................................    1545-1356
301.7507-8.................................................    1545-0123
301.7507-9.................................................    1545-0123
301.7513-1.................................................    1545-0429
301.7517-1.................................................    1545-0015
301.7605-1.................................................    1545-0795
301.7623-1.................................................    1545-0409
301.7654-1.................................................    1545-0803

[[Page 850]]

                                                                        
301.7701-3.................................................    1545-1486
301.7701-4.................................................    1545-1465
301.7701-16................................................    1545-0795
301.7701(b)-1..............................................    1545-0089
301.7701(b)-2..............................................    1545-0089
301.7701(b)-3..............................................    1545-0089
301.7701(b)-4..............................................    1545-0089
301.7701(b)-5..............................................    1545-0089
301.7701(b)-6..............................................    1545-0089
301.7701(b)-7..............................................    1545-0089
301.7701(b)-9..............................................    1545-0089
301.7805-1.................................................    1545-0805
301.9001-1.................................................    1545-0220
301.9001-2T................................................    1545-1488
301.9001-3T................................................    1545-1488
301.9100-4T................................................    1545-0016
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
301.9100-6T................................................    1545-0872
301.9100-7T................................................    1545-0982
301.9100-8.................................................    1545-1112
301.9100-11T...............................................    1545-0123
301.9100-12T...............................................    1545-0026
                                                               1545-0074
                                                               1545-0172
                                                               1545-1027
301.9100-13T...............................................    1545-0046
301.9100-14T...............................................    1545-0046
301.9100-15T...............................................    1545-0046
301.9100-16T...............................................    1545-0152
302.1-7....................................................    1545-0024
305.7701-1.................................................    1545-0823
305.7871-1.................................................    1545-0823
404.6048-1.................................................    1545-0160
420.0-1....................................................    1545-0710
Part 502...................................................    1545-0844
Part 503...................................................    1545-0837
Part 509...................................................    1545-0846
Part 513...................................................    1545-0834
Part 514...................................................    1545-0845
Part 516...................................................    1545-0841
Part 517...................................................    1545-0849
Part 520...................................................    1545-0833
Part 521...................................................    1545-0848
601.104....................................................    1545-0233
601.105....................................................    1545-0091
601.201....................................................    1545-0019
                                                               1545-0819
601.204....................................................    1545-0152
601.401....................................................    1545-0257
601.504....................................................    1545-0150
601.601....................................................    1545-0800
601.602....................................................    1545-0295
                                                               1545-0387
                                                               1545-0957
601.702....................................................    1545-0429
------------------------------------------------------------------------

(26 U.S.C. 7805)

[T.D. 8011, 50 FR 10222, Mar. 14, 1985]

    Editorial Note: For Federal Register citations affecting 
Sec. 602.101, see the List of CFR Sections Affected in the Findings Aids 
section of 26 CFR part 600-end.

    Effective Date Note: By T.D. 8712, at 62 FR 2275, Jan. 16, 1997, in 
Sec. 602.1, the table in paragraph (c) was amended by adding entries for 
Secs. 1.141-1, 1.141-12, 1,142-2 and 1.148-6, effective May 16, 1997.

[[Page 851]]



List of CFR Sections Affected



All changes in sections of Part 1 (Secs. 1.401 to 1.440) of Title 26 of 
the Code of Federal Regulations which were made by documents published 
in the Federal Register since January 1, 1986, are enumerated in the 
following list. Entries indicate the nature of the changes effected. 
Page numbers refer to Federal Register pages. The user should consult 
the entries for chapters and parts as well as sections for revisions.

For the period before January 1, 1986, see ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven 
separate volumes.

                                  1986

26 CFR
                                                                   51 FR
                                                                    Page
Chapter I
1.401(a)-18  Removed...............................................45736
1.401(j)-1--1.401(j)-6  Removed....................................45736
1.402(a)(5)-1T  Added (temporary)...................................4320
1.403(b)-1  (d)(4) introductory text and (ii) amended; (d)(4)(iv) 
        and Tables I and II revised................................45736
1.404(a)-1(T)  Added (temporary)....................................4320
1.404(a)(8)-1T  Added (temporary)...................................4321
1.404(b)-1T  Added (temporary)......................................4321
1.404(b)-1T  A-1 corrected.........................................11303
    A-2 (b)(1) corrected............................................7262
1.404(d)-1  Removed.................................................4322
1.404(d)-1T  Added (temporary)......................................4322
1.404(g)-1  Added..................................................16297
1.404(k)-1T  Added (temporary)......................................4322
1.419-1T  Added (temporary).........................................4323
    A-3, A-6, and A-11 corrected...................................11303
    A-10 (a) corrected..............................................7262
1.419A-1T  Added (temporary)........................................4329
    A-1 corrected..................................................11303

                                  1987

                   (No regulations published in 1987)

                                  1988

26 CFR
                                                                   53 FR
                                                                    Page
Chapter I
1.401(a)-4  Added..................................................26054
1.401(a)-11  (a)(3) Example (1), (c)(2)(i)(C) and (d)(1) revised; 
        (a)(1) (i), (ii), and (iii) and (c)(3)(ii) amended; (d)(5) 
        and (g) added..............................................31841
    (g)(2) (ii) and (iii) corrected................................48534
1.401(a)-11T  Removed..............................................31842
1.401(a)-13  (g) added.............................................31850
    (g)(4)(iii)(B) corrected.......................................48534
1.401(a)-13T  Removed..............................................31850
1.401(a)-20  Added.................................................31842
    Corrected......................................................48534
1.401(b)-1  (b)(2), (c) (1)(iii) and (2) concluding text revised 
                                                                   29662
1.401(k)-0  Added..................................................29663
1.401(k)-1  Added..................................................29664
    (b)(1)(i), (3)(v), (4)(i) introductory text and (B) and (ii), 
and (5)(ii), (d)(2)(iv)(B), (e)(1)(ii), (f)(3)(ii)(B) and (v) 
Example and (h)(4)(iii)(B) corrected...............................34194
    (d)(2)(ii)(B)(2) correctly revised; (h)(3)(ii) corrected.......34285
    (b)(4)(i) introductory text and (B) and (ii) correctly 
designated.........................................................36391
    (a)(2)(i), (f)(3)(v) Example, and (h)(4)(iii)(A) corrected.....43688

[[Page 852]]

1.402(a)-1  (d) added..............................................29673
    (d)(1) and (3) (ii) and (iv) corrected.........................34194
1.402(f)-1  Added..................................................31851
1.402(f)-1T  Removed...............................................31851
1.410(a)-3T  Added (temporary).......................................239
1.410(a)-5T  Removed...............................................31851
1.410(a)-7T  Removed...............................................31852
1.410(a)-8  Added..................................................31851
    Corrected......................................................48534
1.410(a)-8T  Added (temporary).......................................239
1.410(a)-9  Added..................................................31852
    (a)(1) and (b) corrected.......................................48534
1.410(a)-9T  Added (temporary).......................................239
1.411(a)-7  (d)(2)(ii) (C), (D), and (E), (4)(i)(B), and (iv) 
        revised....................................................31852
    (d)(2)(ii)(D)(2) and (E) corrected.............................48534
1.411(a)-11  Added.................................................31853
    (e)(1) corrected...............................................48534
1.411(a)(11)-1T  Removed...........................................31853
1.411(a)-3T  Added (temporary).......................................240
1.411(a)-4T  Added (temporary).......................................241
1.411(a)-8T  Added (temporary).......................................241
1.411(d)-3  (a)(1) amended.........................................31854
    (a)(1) corrected...............................................48534
1.411(d)-3T  Removed...............................................31854
1.411(d)-4  Added..................................................26058
1.411(d)-5  Added..................................................31854
    Correctly designated and (b)(1) and (2)(i) corrected...........48534
1.414(b)-1  Added...................................................6605
1.414(c)-1  Added...................................................6606
1.414(c)-2  Added...................................................6606
1.414(c)-3  Added...................................................6607
    (d)(6)(i) and (e) Example (1) corrected.........................8302
1.414(c)-4  Added...................................................6609
    (b)(3)(ii)(A) and (6)(ii) corrected.............................8302
1.414(c)-5  Added...................................................6611
1.414(q)-1T  Added (temporary)......................................4967
1.414(s)-1T  Added (temporary)......................................4975
1.417(e)-1  Added..................................................31854
    (a) (1) and (3), (c) and (d)(1) corrected......................48534
1.417(e)-1T  Removed...............................................31854
1.423-2  (c)(1) revised............................................48641

                                  1989

26 CFR
                                                                   54 FR
                                                                    Page
Chapter I
1.401(k)-1  (h)(4)(ii) corrected...................................10660

                                  1990

26 CFR
                                                                   55 FR
                                                                    Page
Chapter I
1.412(c)(1)-3T  Added (temporary)..................................42707
1.414(s)-1T  Revised (temporary)...................................19878
    (c)(2), (3), (e)(1)(i), (g)(1) and (2) corrected...............25601
1.415-2  (d)(1) and (4) revised; (d)(6) amended; (d)(8) 
        redesignated as (d)(10); (d)(11) and (12) added 
        (temporary)................................................19880
    (d)(1)(i) correctly revised....................................25601

                                  1991

26 CFR
                                                                   56 FR
                                                                    Page
Chapter I
1.401-3  (e)(6) added..............................................47614
1.401-4  Heading revised; (d) added................................47536
1.401(a)-4  Heading, A-2(a)(2)(ii), Q-6 and A-6(a) revised.........47536
1.401(a)-30  Added.................................................40516
1.401(a)(4)-0  Added...............................................47537
1.401(a)(4)-1  Added...............................................47541
1.401(a)(4)-2  Added...............................................47542
1.401(a)(4)-3  Added...............................................47547
1.401(a)(4)-4  Added...............................................47568
1.401(a)(4)-5  Added...............................................47572
1.401(a)(4)-6  Added...............................................47574
1.401(a)(4)-7  Added...............................................47577
1.401(a)(4)-8  Added...............................................47580
1.401(a)(4)-9  Added...............................................47586
1.401(a)(4)-10  Added..............................................47589
1.401(a)(4)-11  Added..............................................47591
1.401(a)(4)-12  Added..............................................47594
1.401(a)(4)-13  Added..............................................47598
1.401(a)(5)-1  Added...............................................47614
1.401(a)(17)-1  Added..............................................47605
1.401(a)(26)-0  Added..............................................63413
1.401(a)(26)-1  Added..............................................63413
1.401(a)(26)-2  Added..............................................63414
1.401(a)(26)-3  Added..............................................63415
1.401(a)(26)-4  Added..............................................63416
1.401(a)(26)-5  Added..............................................63416
1.401(a)(26)-6  Added..............................................63416
1.401(a)(26)-7  Added..............................................63418
1.401(a)(26)-8  Added..............................................63418
1.401(a)(26)-9  Added..............................................63419
1.401(k)-0  Revised................................................40516
    Amended........................................................63431
1.401(k)-1  Revised................................................40517
    (e)(9) amended.................................................63432
1.401(l)-0  Added..................................................47617

[[Page 853]]

1.401(l)-1  Added..................................................47618
1.401(l)-2  Added..................................................47621
1.401(l)-3  Added..................................................47622
1.401(l)-4  Added..................................................47632
1.401(l)-5  Added..................................................47634
1.401(l)-6  Added..................................................47637
1.401(m)-0  Added..................................................40534
    Amended........................................................63432
1.401(m)-1  Added..................................................40534
    (c)(3) amended.................................................63432
1.401(m)-2  Added..................................................40543
1.402(a)-1  (d) revised............................................40545
1.402(g)-0  Added..................................................40545
1.402(g)-1  Added..................................................40546
1.410(b)-0  Added..................................................47641
1.410(b)-1  Heading and (a) revised................................47643
1.410(b)-2  Added..................................................47643
1.410(b)-3  Added..................................................47644
1.410(b)-4  Added..................................................47645
1.410(b)-5  Added..................................................47646
1.410(b)-6  Added..................................................47652
    (e) revised....................................................63433
1.410(b)-7  Added..................................................47655
    (c)(4), (d)(4) and (e) revised.................................63433
1.410(b)-8  Added..................................................47656
1.410(b)-9  Added..................................................47657
1.410(b)-10  Added.................................................47658
1.411(a)-4  (b)(7) added...........................................40549
1.411(d)-4  A-2(b)(2)(x) and (xi) added............................40549
    A-1(a) and (d) revised; A-1(b)(1) amended......................47602
1.412(c)(1)-3T  (g)(7) corrected...................................19038
1.414(q)-1T  (b)(1) introductory text and (2)(iii) revised; (g) 
        added (temporary)...........................................3977
1.414(r)-0  Added..................................................63434
1.414(r)-1  Added..................................................63437
1.414(r)-2  Added..................................................63439
1.414(r)-3  Added..................................................63442
1.414(r)-4  Added..................................................63446
1.414(r)-5  Added..................................................63446
1.414(r)-6  Added..................................................63452
1.414(r)-7  Added..................................................63453
1.414(r)-8  Added..................................................63457
1.414(r)-9  Added..................................................63459
1.414(r)-10  Heading added.........................................63460
1.414(r)-11  Added.................................................63460
1.414(s)-1  Added..................................................47662
1.414(s)-1T  Removed...............................................47666
1.415-2  (d) revised...............................................47667
1.415-6  (b)(1) and (6) introductory text revised; (b)(6)(iv) 
        amended....................................................40549
1.416-1  Amended...................................................40550
1.422-1  Removed...................................................61160
1.422-2  Removed...................................................61160
1.422-4  Added.....................................................61160
1.422-5  Redesignated from 14a.422A-2 and revised..................61160

                                  1992

26 CFR
                                                                   57 FR
                                                                    Page
Chapter I
1.401(a)(4)-0  Corrected............................................4719
    Corrected......................................................10952
1.401(a)(4)-2  (b)(5)(ii) and (c)(3)(v) corrected...................4719
    (c)(2)(v) corrected............................................10952
1.401(a)(4)-3  (b)(2)(iv), (4)(ii) Example 2, Example 4, (5)(ii) 
        Example 3, (7)(iii), (v), (8)(xii)(C), (xiii)(C), (D)(2), 
        (F) Example 4, Example 6 and Example 7 corrected............4719
    (d)(2)(iii) Example, (6)(vii)(D) Example 1, Example 2, 
(viii)(F) Example, (e)(4) Example 6 and (f)(4)(ii)(A) corrected.....4720
    (b)(3)(ii) Example 2, (4)(ii) Example 2, Example 3, 
(8)(xii)(B), (xiii)(D)(2), (c)(2), (d)(1)(iii), (6)(iv)(A) and 
(f)(2) corrected...................................................10952
1.401(a)(4)-4  (b)(2)(iv) and (d)(3) corrected......................4720
    (b)(1), (2)(ii)(A), (d)(4)(i) and (e)(3)(viii) corrected.......10952
1.401(a)(4)-5  (a)(6) Example 9 corrected...........................4720
    (a)(6) Example 4 corrected.....................................10952
1.401(a)(4)-7  (c)(2) and (5) Example corrected.....................4720
    (b)(4)(ii)(B), (c)(1), (4)(iii)(D) and (5) Example corrected 
                                                                   10952
1.401(a)(4)-8  (b)(2)(i)(D), (E), (ii)(A), (3)(i)(B), (vi) Example 
        1, Example 2, (c)(2)(i)(F) and (3)(x) corrected.............4720
    (b)(3)(v) corrected............................................10952
    (b)(3)(vi), (c)(2)(i) introductory text, (D), (ii), (3)(i), 
(iii)(B), (v)(A) and (vi) corrected................................10953
1.401(a)(4)-9  (a), (b)(2)(iv), (v)(A), (B), (3)(i) and (c)(6) 
        Example 1 corrected.........................................4720
    (c)(6) Example 2, and Example 3 corrected.......................4721

[[Page 854]]

    (b)(2)(iii) corrected..........................................10953
1.401(a)(4)-10  (b)(3)(ii)(D) correctly designated as (b)(3)(iv) 
        and revised; (b)(3)(iv) correctly designated as (b)(3)(v), 
        (b)(3)(i) and (4)(iv) Example 2 corrected...................4721
1.401(a)(4)-11  (c)(1), (2) and (g)(6) Example 5 corrected..........4721
    (d)(3)(iii) and (g)(3)(v)(B) corrected.........................10953
1.401(a)(4)-12  Corrected...........................................4721
    Corrected......................................................10953
1.401(a)(4)-13  (c)(7) Example 1, Example 2, Example 3, (e)(2)(i) 
        and (f)(3)(i) corrected.....................................4721
    (a), (c)(7) Example 2, and (e)(2)(ii) corrected................10953
1.401(a)(5)-1  (d)(1) and (2) correctly designated.................10817
    (e)(8) Example 1, Example 2 and Example 3 corrected............10818
    (d)(2) and (e)(2) corrected....................................10951
1.401(a)(17)-1  (a)(1) and (b)(2) corrected........................10815
    (b)(3)(iii) introductory text, (A), (6) Example 2, Example 3, 
Example 5, Example 6, (c)(1), (3), (4), (5), (d)(1)(ii)(B), 
(e)(3)(iii)(A), (4)(iii)(A)(2), (B), (5) introductory text, 
Example 1, Example 2, Example 3, Example 5, and 6 corrected........10816
    (e)(4)(iii)(B) introductor text, (5), (5) Example 2, Example 5 
and Example 6 corrected............................................10953
1.401(a)(31)-1T  Added.............................................48166
1.401(k)-1  (a)(6)(ii)(B), (7)(i), (b)(5)(v), (d)(2)(ii), 
        (iii)(B)(4), (e)(1) and (f)(3)(ii)(B) corrected............10289
    (f)(3)(v) Example, (5)(i)(B), (7) Example 1, (g)(8)(ii), 
(11)(iii)(D)(2), (14), (h)(3)(iii)(A) and (B)(2) corrected.........10290
    (f)(3)(ii) concluding text corrected...........................59915
1.401(l)-0  Corrected..............................................10818
1.401(l)-1  (c)(17)(ii) corrected..................................10818
    (c)(17)(i) corrected...........................................10951
1.401(l)-2  (d)(4)(i), (5) and (e) corrected.......................10818
    (e) Example 5 corrected........................................10951
1.401(l)-3  (c)(1), (c)(2)(ii) introductory text, (A), (B), (iii) 
        introductory text, (A), (B), (C), (3) Example 2, (d)(7), 
        (9)(iii)(A), (iv)(A), (10) Example 1, Example 2............10818
    (d)(10) Example 4, (e)(6) Example 1, Example 3 and Example 6 
corrected..........................................................10819
    (c)(2)(iv), (v), (vi), (3) Example 4, Example 5, (d)(9)(ii), 
(iii)(B) and (10) Example 1 corrected..............................10951
    (d)(10) Example 4 and Example 6 corrected......................10952
1.401(l)-4  (b)(3)(iv)(B), (c)(3)(ii)(C), (e)(1)(ii), (3) 
        introductory text and (ii) corrected.......................10819
    (c)(3)(ii)(A) nad (e)(3)(i) corrected..........................10952
1.401(l)-5  (b)(9) Example 4, (c)(4) Example 4 and (d) corrected 
                                                                   10819
    (b)(9) Example 1 and (c)(3)(i) corrected.......................10952
1.401(l)-6  (c) and (d)(4) corrected...............................10819
1.401(m)-1  (a)(1), (f)(1)(ii)(A), (12)(ii) and (g)(5)(ii)(B)(2) 
        corrected..................................................10290
1.401(m)-2  (c)(1) corrected.......................................10290
1.402(a)-1  (d)(3)(iv) corrected...................................10290
1.402(c)-2T  Added.................................................48168
1.402(f)-2T  Added.................................................48171
1.403(b)-2T  Added.................................................48171
1.404(a)-1T  Amended...............................................43896
1.404(b)-1T  Amended...............................................43896
1.404(d)-1T  Amended...............................................43896
1.410(b)-0  Corrected..............................................10954
1.410(b)-2  (b)(2)(ii) Example 1, (5), (6), (7), (c)(2)(ii)(A) and 
        (d) corrected..............................................10817
1.410(b)-3  (a)(3) Example 2 corrected.............................10954
1.410(b)-4  (b) and (c)(4)(iii) corrected..........................10954
1.410(b)-5  (d)(8)(ii), (e)(2)(i), (4)(iii) and (5) corrected......10817
    (d)(3), (5)(vi), (8)(i) and (f)(1) corrected...................10954
1.410(b)-6  (d)(1) and (g) corrected...............................10817
1.410(b)-7  (c)(1) and (5) corrected...............................10817

[[Page 855]]

    (b) and (e)(2) Example corrected...............................10954
1.410(b)-9  Corrected.......................................10817, 10954
1.410(b)-10  (b)(2) corrected......................................10954
1.411(d)-4  (a)(2) corrected........................................4721
1.414(r)-8  (b)(2)(iii) revised....................................52591
1.414(s)-1  (a)(2) and (d)(2)(ii) corrected........................10815
    (g)(2) corrected...............................................10953
1.415-2  (d)(10) and (11)(i) corrected.............................10815
    (d)(3)(iii) corrected..........................................10953
1.415-6  (b)(1)(iii) correctly revised.............................10290

                                  1993

26 CFR
                                                                   58 FR
                                                                    Page
Chapter I
1.401-4  Heading and (d) revised...................................46778
1.401(a)-4  Amended; heading revised...............................46778
1.401(a)(4)-0  Revised.............................................46778
1.401(a)(4)-1  Revised.............................................46780
1.401(a)(4)-2  Revised.............................................46781
1.401(a)(4)-3  Revised.............................................46785
1.401(a)(4)-4  Revised.............................................46796
1.401(a)(4)-5  Revised.............................................46800
1.401(a)(4)-6  Revised.............................................46802
1.401(a)(4)-7  Revised.............................................46804
1.401(a)(4)-8  Revised; (c)(2)(iv) added...........................46807
1.401(a)(4)-9  Revised.............................................46810
1.401(a)(4)-10  Revised............................................46812
1.401(a)(4)-11  Revised............................................46813
1.401(a)(4)-12  Revised............................................46820
1.401(a)(4)-13  Heading and (a) through (e) revised................46823
1.401(a)(5)-1  (e)(7) removed; (e)(8) redesignated as (e)(9); (h) 
        added......................................................46830
1.401(a)(26)-1  (b)(4) revised.....................................46838
1.401(a)(26)-9  (b)(1) revised.....................................46838
1.401(k)-1  (f)(3)(ii) concluding text corrected...................14151
    Regulation at 58 FR 14151 eff. date corrected to 8-15-91.......18448
1.401(l)-0  Amended................................................46830
1.401(l)-1  (a)(1) and (3) amended; (c)(22) through (33) 
        redesignated as (c)(23) through (25) and (27) through 
        (35); (b), (c)(2), (6), (9), (17)(i), (19), (21) and new 
        (35) revised; new (c)(22) and (26) added...................46831
1.401(l)-2  (a)(1) amended.........................................46832
1.401(l)-3  (b)(4)(iii)(E), (5), (c)(2)(vi), (d)(8)(iii) 
        introductory text, (g) and (h) revised; (c)(2)(ix) and 
        (d)(8)(iii)(D) added; (e)(4) removed; (e)(5) and (6) 
        redesignated as (e)(4) and (5); (a)(1), (b)(4)(iii)(C), 
        (c)(2)(i), (ii), (iii), (3) Example 2, (e)(1), new 
        (e)(4)(i), (ii) and new (e)(5) Example 6 amended...........46832
1.401(l)-5  (b)(5), (c)(1)(i), (ii), (iii) and (3) revised; (c)(4) 
        redesignated as (c)(5); (b)(8)(v), (c)(1)(v), (vi), new 
        (4) and (5) Example 5 added; (b)(8)(iii)(A), (c)(2) and 
        new (5) amended............................................46833
1.401(l)-6  Revised................................................46835
1.410(b)-0  Amended................................................46838
1.410(b)-1  Heading revised........................................46839
1.410(b)-2  Heading, (c)(2) and (f) revised; (d) and (e) amended 
                                                                   46839
1.410(b)-3  (a)(1), (2)(ii), (iii) and (iv) revised; (a)(2)(v) 
        removed....................................................46839
1.410(b)-5  (d) and (e) revised....................................46840
1.410(b)-6  (a)(1) and (2) amended; (b)(1), (2), (d)(2) and (g) 
        revised; (i) added.........................................46842
1.410(b)-7  (d)(5) and (e)(1) amended..............................46843
1.410(b)-9  Amended................................................46843
1.410(b)-10  Revised...............................................46844
1.411(d)-4  Amended................................................46828
1.412(c)(1)-3  Added...............................................54491

[[Page 856]]

1.414(s)-1  (b)(2) existing text designated as (b)(2)(i); (f) 
        through (i) redesignated as (g) through (j); (a)(3), 
        (b)(3), (c)(4)(i), (d)(3)(v) and new (g)(1)(i) amended; 
        (b)(2)(i) heading, (ii), (d)(3)(iii)(C), (vi), new (f) and 
        new (g)(1)(iii) added; (c)(5), (d)(2)(i), (ii), (3)(ii), 
        (iii)(A), (e), new (h) and new (j) revised.................47063
1.424-1  Removed...................................................25557
1.424-2  Removed...................................................25557

                                  1994

26 CFR
                                                                   59 FR
                                                                    Page
1.401-12T  Added...................................................62571
1.401(k)-0  Amended................................................66169
1.401(k)-1  (a)(3)(iv), (b)(4)(ii), (iv), (5)(i), (ii), (6) 
        Examples 2, 3, 4, (d)(5), (6)(iv), (e)(6)(ii), (f)(3)(v) 
        Example, (7) Example 1 and (g)(4)(ii) amended; (a)(3)(v), 
        (4)(ii), (iv), (5)(iv), (6)(ii)(C), (7)(i), (b)(1)(i), 
        (ii) heading, (5)(vi), (d)(2)(iv)(A)(3), (3), (4)(i), 
        (e)(7), (f)(1)(iii), (2), (3)(ii), (iii)(C), (4)(ii)(B), 
        (7) Examples 2, 3, (g)(1)(ii)(B)(1), (C)(1), (2)(i), (5), 
        (6), (11), (3)(iii)(A), (B)(2) and (4)(ii) revised; 
        (a)(3)(vi) Example 3, (e)(6)(vi), (15) and (16) added......66169
1.401(m)-0  Amended................................................66175
1.401(m)-1  (a), (b)(1), (3)(i), (ii), (4)(ii)(B), (5)(v), (c)(1), 
        (e)(1)(iii), (4), (6) Examples 2 through 6, (f)(1)(ii)(B), 
        (C)(1), (2), (12)(i)(B), (g)(4), (5)(ii)(A) and (B)(2) 
        revised; (b)(3)(iii) removed; (b)(3)(vii), (6) Example 8, 
        (f)(16) and (17) added; (b)(4)(ii)(A), (5)(i), (ii), (d) 
        Examples 3, 4, (e)(3)(ii)(B) and (f)(4)(ii) amended........66175
1.401(m)-2  (a) amended; (b)(1), (c)(1) and (4) and Example 1 
        revised....................................................66179
1.401(a)(17)-1  Revised............................................32905
1.402(a)-1  (d)(3)(iv) revised; (d)(3)(v) added....................66180
1.402(g)-1  (e)(5)(ii) revised; (e)(11) Example 2 amended..........66180
1.410(b)-0  Amended................................................32914
1.410(b)-2  (b)(7) amended.........................................32914
1.410(b)-6  (d)(2)(i), (ii) and (g) corrected......................16984
    (d)(1), (2)(iv) Example 2 amended..............................32914
1.410(b)-7  (c)(4) and (5) revised; (c)(6) removed; (d)(4) amended
                                                                   32914
1.411(d)-4  Amended................................................66180
1.414(r)-11  (b)(2) and (4) revised; (b)(3) and (c)(2)(v) amended 
                                                                   32922
1.414(c)-2  (b)(2)(ii) amended.....................................30102
1.414(c)-4  (b)(3)(i) amended......................................30102
1.414(q)-1T  (b)(1) introductory text and (2)(iii) revised; (g) 
        removed....................................................32916
1.414(q)-1  Added..................................................32915
1.414(r)-0  Amended................................................32916
1.414(r)-1  (c)(2)(ii) Example, (d)(4), (9)(i) and (e) amended; 
        (c)(3)(ii) revised.........................................32916
1.414(r)-2  (b)(2), (c)(3) Examples 1 and 2 revised................32917
1.414(r)-3  (c)(2)(ii), (4), (5)(iii), (7) Example 1, (d)(2) and 
        (4) Example 1 revised; (c)(7) Examples 3 and 4 
        redesignated as Examples 4 and 5; (b)(4), (c)(6) 
        introductory text, Examples 2 through 5, 7, (7) 
        introductory text, Example 2 and new Example 5 amended; 
        new (c)(7) Example 3 added.................................32917
1.414(r)-4  (b) amended............................................32919
1.414(r)-5  (b)(5)(ii), (d)(1)(ii)(B), (C), (4) Example 2, and 
        (g)(5) revised; (d)(1)(iii) added; (d)(1) concluding text 
        removed; (g)(2)(iii)(A), (D), (3)(ii)(B), (iii)(B), (C), 
        (D) and (g)(6) amended.....................................32919
1.414(r)-6  (a) amended; (b) revised; (c) removed..................32920
1.414(r)-7  (c)(2) and (d) removed; (c)(3), (4) and (5) 
        redesignated as (c)(2), (3) and (4); (a)(1), (b)(2)(ii), 
        (3), new (c)(2)(i), (3)(i), (ii) introductory text, (A), 
        (B), (iii) Example 1, (4)(i), (ii), (iii) introductory 
        text, (E), (v) introductory text and Examples 1 through 4 
        amended; (c)(1) and new (c)(2)(iv) revised; (c)(5) added 
                                                                   32920

[[Page 857]]

1.414(r)-8  (b)(4) Examples 1 and 4 amended; (b)(2)(iii) and (4) 
        Example 2 revised; (d)(4) removed; (b)(4) Examples 3, 4, 
        and (d)(5) redesignated as Examples 5, 6 and (d)(4); new 
        (b)(4) Examples 3 and 4 added; new (b)(4) Examples 5 and 6 
        amended....................................................32921
1.415-6  (b)(6)(iv) revised........................................66181

                                  1995

26 CFR
                                                                   60 FR
                                                                    Page
Chapter I
1.401-12  (n) redesignated as 1.408-2(e); authority citation 
        removed....................................................65549
1.401-12T  Removed.................................................65549
1.401(e)-5  (a) amended............................................21435
1.401(f)-1  (b)(1)(ii) and (d)(1) amended..........................65549
1.401(k)-1  (f)(3)(iii)(C) corrected...............................12416
    (b)(6) corrected...............................................15874
    (h)(4)(ii) revised.............................................25140
1.401(m)-1  (e)(6) Example 3 corrected.............................12416
1.401(a)(31)-1  Added..............................................49204
1.401(a)(31)-1T  Removed...........................................49204
1.402(c)-2  Added..................................................49208
1.402(c)-2T  Removed...............................................49204
1.402(f)-1  Revised................................................49213
1.402(f)-2T  Removed...............................................49204
1.403(b)-2  Added..................................................49214
1.403(b)-2T  Removed...............................................49204
1.408-2  (e) redesignated from 1.401-12(n); (b)(2)(ii), new (e)(1) 
        and new (9) removed; (b)(2)(iii) and new (e)(2) through 
        (8) redesignated as (b)(2)(ii) and (e)(1) through (7); new 
        (e)(5)(ii)(A) redesignated as (e)(5)(ii)(E); (b)(2)(i), 
        new (e)(1), (2)(iv), (5)(ii)(B)(2), (C)(2), (iii)(B), 
        (v)(A), (vi), (viii), (6)(i)(A), (iii)(C), (9)(iv) and 
        (v)(B) amended; new (e)(5)(ii)(A) revised; (e)(5)(ii)(D) 
        added......................................................65549
1.411(a)-11  (c)(2)(ii) revised; (c)(2)(iii) removed...............49221
1.411(a)-11T  Added................................................49221
1.411(d)-6T  Added.................................................64322
1.417(e)-1  (d) revised............................................17219
    (b)(3) revised.................................................49221
1.417(e)-1T  Added.................................................17219
    (b) added......................................................49221

                                  1996

26 CFR
                                                                   61 FR
                                                                    Page
1.401(a)-4  Technical correction...................................14247
1.401(f)-1  (d)(1) corrected.......................................11307
1.408-2  (e)(1), (5)(ii)(A), (D) introductory text, Example, 
        (viii), (6)(i)(A), (iv) and (7)(v)(B) corrected............11307

                                  1997

 (No regulations published from January 1, 1997, through April 1, 1997)