[Federal Register Volume 59, Number 122 (Monday, June 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15440]


[[Page Unknown]]

[Federal Register: June 27, 1994]


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DEPARTMENT OF THE TREASURY
Internal Revenue Service

26 CFR Part 1

[TD 8547]
RIN 1545-AR54

 

Limitation on Annual Compensation for Qualified Plans

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations relating to the 
compensation limit for tax-qualified retirement plans under section 
401(a)(17) of the Internal Revenue Code of 1986. These regulations 
reflect changes made by the Tax Reform Act of 1986, the Technical and 
Miscellaneous Revenue Act of 1988, and the Omnibus Budget 
Reconciliation Act of 1993. These regulations provide guidance 
necessary to comply with the law and affect sponsors of, and 
participants in, tax-qualified retirement plans.

DATES: These regulations are effective January 1, 1994, and apply to 
plan years beginning on or after January 1, 1994, except as otherwise 
provided in Sec. 1.401(a)(17)-1(d).

FOR FURTHER INFORMATION CONTACT: Marjorie Hoffman at (202) 622-4606 
(not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    On September 19, 1991, final regulations under section 401(a)(17) 
(TD 8362) were published in the Federal Register (56 FR 47603). On 
August 10, 1992, the IRS published in the Federal Register (57 FR 
35536) regulations proposing to extend the effective date of the final 
regulations under section 401(a)(17) (and related regulations), 
generally to plan years beginning on or after January 1, 1994.
    On December 30, 1993, proposed regulations under section 401(a)(17) 
amending the final regulations were published in the Federal Register 
(58 FR 69302). Written comments were received from the public on the 
proposed regulations. Because the only request for a public hearing was 
withdrawn, no public hearing was held. After considering all of the 
written comments received, the proposed regulations are adopted as 
modified by this Treasury decision.

Statutory Authority

    This document contains amendments to the Income Tax Regulations (26 
CFR Part 1) under section 401(a)(17) of the Internal Revenue Code 
(Code). These regulations reflect the enactment of section 401(a)(17) 
by section 1106 of the Tax Reform Act of 1986 (TRA '86), and subsequent 
statutory changes made by section 1011(d)(4) of the Technical and 
Miscellaneous Revenue Act of 1988 (TAMRA) and section 13212 of the 
Omnibus Budget Reconciliation Act of 1993 (OBRA '93). These regulations 
are issued under the authority contained in section 7805 of the Code.

Explanation of Provisions

1. Overview

    Section 401(a)(17) of the Code provides an annual compensation 
limit for each employee under a qualified plan. This limit applies to a 
plan in two ways. First, a plan may not base contributions or benefits 
on compensation in excess of the annual limit. Thus, a plan does not 
satisfy section 401(a)(17) unless it provides that an employee's 
compensation in excess of the annual limit is not used in determining 
allocations or accruals for a plan year to which the annual limit 
applies. Second, the amount of an employee's annual compensation that 
may be taken into account in applying certain specified 
nondiscrimination rules under the Code is subject to the annual 
compensation limit. Thus, for example, an employee's compensation in 
excess of the annual limit is disregarded in determining the accrual 
rates for defined benefit plans under those nondiscrimination rules. 
The annual compensation limit applies separately to each group of plans 
that is treated as a single plan for purposes of the applicable 
nondiscrimination requirement.
    These final regulations adopt the provisions of the proposed 
regulations with only minor modifications, as described below.

2. Changes Made by OBRA '93

a. Lower Limit
    Prior to its amendment by OBRA '93, the annual compensation limit 
was $200,000 adjusted for cost of living increases ($235,840 for 1993). 
Section 401(a)(17) was amended by OBRA '93 to reduce the annual 
compensation limit to $150,000 and to modify the manner in which cost 
of living adjustments are made to the limit.
b. Annual Adjustment of Compensation Limit
    Prior to the effective date of the OBRA '93 changes, the annual 
compensation limit was increased annually based on the section 415 cost 
of living adjustment. After the effective date of OBRA '93, the annual 
compensation limit, as adjusted for changes in the cost of living, is 
rounded down to the next lowest multiple of $10,000. Thus, the annual 
compensation limit increases only when the cost of living adjustment 
would increase the limit by an increment of at least $10,000. These 
final regulations retain the rules in the September 1991 regulations 
that any increase in the limit is effective for the plan year, or other 
12-month period used to determine compensation, commencing in the 
calendar year for which the limit is adjusted and that the increase 
applies only to compensation for the year of the increase and 
subsequent years that are used in determining an employee's benefit.
c. Proration of the Limit
    These regulations retain the requirement in the September 1991 
regulations that the annual compensation limit must be prorated if 
compensation for a period of less than 12 months is used for a plan 
year. However, in response to comments on the proposed regulations, the 
final regulations clarify that no proration is required merely because 
the amount of elective contributions, matching contributions, or 
employee contributions that is contributed for each pay period during a 
plan year is determined separately using compensation for that pay 
period. For example, a section 401(k) plan provides each employee with 
the right to elect to defer up to 6 percent of compensation for a plan 
year, and then, in accordance with each employee's election for the 
plan year, contributions are made monthly using the employee's 
compensation for that pay period. Although the compensation for the 
plan year that may be taken into account in determining each employee's 
elective contributions is subject to the annual compensation limit, the 
compensation for each month would not required to be limited to $12,500 
(\1/12\ of $150,000) in this situation.

3. Effective Date and Transition Rules

    Section 401(a)(17) is generally effective for plan years beginning 
on or after January 1, 1989. The changes made by OBRA '93 are generally 
effective for plan years beginning on or after January 1, 1994. Special 
statutory effective dates are provided for collectively bargained 
plans. In addition, OBRA '93 provides a special grandfather rule for 
certain eligible participants in governmental plans.
    These regulations under section 401(a)(17) are generally effective 
at the same time that the reduced limit under OBRA '93 applies to the 
plan. However, in the case of plans maintained by tax-exempt 
organizations, the regulations are effective for plan years beginning 
on or after January 1, 1996.
    Minor modifications have been made to the examples in these 
regulations to reflect the OBRA '93 statutory change, the change in the 
effective date of the regulations from the date in the 1991 
regulations, and an employer's choice of complying with the provisions 
of these regulations prior to the effective date.
a. Fresh-Start Rules
    The regulations retain the rule from the September 1991 regulations 
that benefits accrued or allocations made under a plan for plan years 
prior to the effective date of section 401(a)(17) are not subject to 
the annual compensation limit. The regulations also retain the rule in 
the proposed regulations that the benefits accrued or allocations made 
under a plan for plan years prior to the effective date of the OBRA '93 
changes are not subject to the reduced annual compensation limit.
    In order to satisfy the requirements of section 401(a)(17), a 
defined benefit plan must ``fresh start'' the benefits of all employees 
with accrued benefits that are based on compensation that exceeded the 
annual compensation limit. In order to implement the reduced limit 
under OBRA '93, a defined benefit plan must again ``fresh start'' the 
benefits of all employees with accrued benefits that are based on 
compensation that exceeded the OBRA '93 $150,000 compensation limit.
    As in the proposed regulations, these final regulations provide 
guidance on the implementation of these and other multiple fresh starts 
and coordinate the regulations with the fresh-start rules of the 
section 401(a)(4) regulations. For example, the regulations continue to 
cross-reference the section 401(a)(4) regulations for the definition of 
an employee's frozen accrued benefit. Thus, an employee's frozen 
accrued benefit as of the OBRA '93 effective date includes benefits 
accrued as a result of an amendment made within the TRA '86 remedial 
amendment period that is recognized under section 401(b) as effective 
before the OBRA '93 effective date.
b. Amendments to Comply With Section 401(a)(17)
    In conjunction with publishing these regulations under section 
401(a)(17), the IRS issued Rev. Proc. 94-13, 1994-3 I.R.B. 18, dated 
January 18, 1994. Rev. Proc. 94-13 provides guidance on the remedial 
amendment treatment for plans being amended for section 401(a)(17), 
including guidance on the conditions under which a plan may be amended 
to comply retroactively with section 401(a)(17) even if the amendment 
results in a reduction of a benefit protected under section 411(d)(6). 
Rev. Proc. 94-13 also provides guidance on the extent to which section 
204(h) of the Employee Retirement Income Security Act of 1974 (ERISA) 
will not apply to a plan amendment that limits an employee's 
compensation taken into account under the plan to the maximum permitted 
under section 401(a)(17) of the Code.
    Commentators requested that this guidance be incorporated into the 
final regulations. The IRS and the Treasury believe these issues are 
appropriately addressed in Rev. Proc. 94-13. The guidance under section 
411(d)(6) in Rev. Proc. 94-13 is provided pursuant to the specific 
delegation of authority in Sec. 1.411(d)-4, Q&A-2(b) to the 
Commissioner to provide, through the publication of revenue rulings, 
notices, and other documents of general applicability, for the 
elimination or reduction of section 411(d)(6) protected benefits to the 
extent that the reduction is necessary to permit compliance with the 
other requirements of section 401(a). The guidance under section 204(h) 
of ERISA is provided pursuant to the delegation of authority to the IRS 
under section 101(a) of Reorganization Plan No. 4 of 1978 (1979-1 C.B. 
480) to issue regulations, rulings, opinions, variances, and waivers 
under section 204 of ERISA.
c. Application of $150,000 Limit to Accruals or Allocations in Plan 
Years for Which OBRA '93 is Effective
    One commentator suggested that the reduced limit should not apply 
to compensation for years beginning before the OBRA '93 effective date 
that is used in determining post-effective date benefit accruals. The 
regulations, however, continue to provide that benefits accruing, or 
allocations made, for plan years beginning on or after the OBRA '93 
effective date may not take into account compensation for any year in 
excess of the OBRA '93 annual compensation limit applicable to that 
year (generally $150,000 for years beginning before the OBRA '93 
effective date). Thus, compensation for any plan year before OBRA '93 
applies to the plan that is used to determine benefits accruing in plan 
years beginning on or after the OBRA '93 effective date is generally 
limited to $150,000. In the absence of this rule, post-effective date 
accruals under many defined benefit plans would be determined taking 
into account compensation in excess of $150,000. For example, this 
happens when a defined benefit plan determines annual accruals as a 
percentage of each employee's highest average annual compensation for a 
specified number of years (including years prior to the effective date 
of OBRA '93).
d. Collectively Bargained Plans
    TRA '86 and OBRA '93 provide a deferred effective date for 
collectively bargained plans. In response to comments, these 
regulations clarify that the rules of Sec. 1.410(b)-10(a)(2) apply for 
purposes of determining whether a plan is a collectively bargained 
plan. Thus, if a plan is a collectively bargained plan (within the 
meaning of Sec. 1.410(b)-10(a)(2)(iii)), the deferred effective date 
applies in determining the plan allocations or benefit accruals of both 
collectively bargained and noncollectively bargained employees.
e. Governmental Plans
    These final regulations retain the special effective date for 
governmental plans (within the meaning of section 414(d)) in order to 
provide governmental employers with adequate time to amend their plans 
to comply with section 401(a)(17). Thus, the regulations provide that 
these governmental plans will automatically satisfy the requirements of 
section 401(a)(17) 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.
    The final regulations continue to implement the grandfather rule in 
OBRA '93 for individuals who first became participants in governmental 
plans before the first plan year beginning after December 31, 1995 or, 
if earlier, the first plan year for which the plan is amended to comply 
with OBRA '93. Under the grandfather rule, the annual compensation 
limit will not apply for those individuals to the extent that the limit 
would reduce the amount of compensation 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. However, in order for this 
grandfather rule to apply to a plan, the plan must be amended, 
effective for plan years beginning after December 31, 1995, to 
incorporate by reference the annual compensation limits of section 
401(a)(17) for those participants who are not grandfathered under OBRA 
'93.
f. Good Faith Compliance Prior to the Regulatory Effective Date
    For plan years beginning on or after the date that section 
401(a)(17) first applies to a plan, but before these regulations apply 
to the plan, the plan must be operated in accordance with a reasonable, 
good faith interpretation of the requirements of section 401(a)(17). 
Whether compliance is reasonable and in good faith will be determined 
on the basis of all of the relevant facts and circumstances, including 
the extent to which the employer has resolved unclear issues in its 
favor. Reasonable, good faith interpretation will be deemed to exist, 
however, if a plan is operated in accordance with the 1990 regulations, 
the September 1991 regulations, the December 1993 regulations, or these 
regulations. However, for any plan with a regulatory effective date 
that is later than the OBRA '93 effective date for the plan (e.g., a 
plan maintained by a tax-exempt organization), a reasonable, good faith 
interpretation must reflect the OBRA '93 amendments to section 
401(a)(17).

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to 
these regulations, and, therefore, a Regulatory Flexibility Analysis is 
not required. Pursuant to section 7805(f) of the Internal Revenue Code, 
the notice of proposed rulemaking preceding these regulations was 
submitted to the Small Business Administration for comment on its 
impact on small business.

Drafting Information

    The principal author of these final regulations is Marjorie Hoffman 
of the Office of the Associate Chief Counsel (Employee Benefits and 
Exempt Organizations), IRS. However, other personnel from the IRS and 
Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read, 
in part, as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. Section 1.401(a)(17)-1 is revised to read as follows:


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 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 
(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 ($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 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), 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 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) 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 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 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 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.
Margaret Milner Richardson,
Commissioner of Internal Revenue.

    Approved: June 14, 1994.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 94-15440 Filed 6-23-94; 8:45 am]
BILLING CODE 4830-01-U