[Federal Register Volume 72, Number 98 (Tuesday, May 22, 2007)]
[Rules and Regulations]
[Pages 28604-28607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9643]



[[Page 28604]]

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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 9325]
RIN 1545-BD23


Distributions From a Pension Plan Upon Attainment of Normal 
Retirement Age

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations under sections 401(a) 
and 411(d)(6) of the Internal Revenue Code. These regulations provide 
rules permitting distributions to be made from a pension plan upon the 
attainment of normal retirement age prior to a participant's severance 
from employment with the employer maintaining the plan. These 
regulations provide the public with guidance regarding distributions 
from qualified pension plans and will affect administrators of, and 
participants in, such plans.

DATES: Effective Date: These regulations are effective May 22, 2007.
    Applicability Dates: These regulations are generally applicable May 
22, 2007. For dates of applicability, see Sec. Sec.  1.401(a)-1(b)(4) 
and 1.411(d)-4, A-12(a).

FOR FURTHER INFORMATION CONTACT: Cathy A. Vohs at (202) 622-6090 or 
Janet A. Laufer at (202) 622-6080 (not a toll-free number).

SUPPLEMENTARY INFORMATION: 

Background

    Section 401(a) sets forth the qualification requirements for a 
trust forming part of a stock bonus, pension, or profit-sharing plan of 
an employer. Several of these qualification requirements are based on a 
plan's normal retirement age. Section 411(a)(8) defines the term 
``normal retirement age'' as the earlier of (a) the time a participant 
attains normal retirement age under the plan or (b) the later of the 
time a plan participant attains age 65 or the 5th anniversary of the 
time a plan participant commenced participation in the plan.
    The definition of normal retirement age is important in applying 
the rules under section 411(b) which are designed to preclude avoidance 
of the minimum vesting standards through the backloading of benefits 
(for example, a benefit formula under which the rate of benefit accrual 
is increased disproportionately for employees with longer service) 
because those rules are based on the benefit payable at normal 
retirement age. Normal retirement age is also relevant for applying the 
rules relating to suspension of benefits under section 411(a)(3)(B) and 
the rules under section 411(b)(1)(H)(iii) that permit a plan to offset 
accruals after normal retirement age by either the actuarial value of 
distributions made after normal retirement age or the actuarial value 
of increases in the benefits due to delay in payment. Normal retirement 
age is also used in determining the minimum benefit for non-key 
employees in the case of a top-heavy defined benefit plan. See section 
416(c)(1)(A) and (E). Also, the vesting requirements of sections 
401(a)(7) and 411 are based upon normal retirement age.
    Section 411(d)(6) generally prohibits a qualified plan from being 
amended to reduce a participant's accrued benefit and, for this 
purpose, an elimination or reduction of an early retirement benefit or 
a retirement-type subsidy, or an elimination of an optional form of 
benefit, is treated as a reduction in the accrued benefit. The 
Secretary has the authority under section 411(d)(6) to allow amendments 
that eliminate an optional form of benefit.
    Section 401(a) permits three types of plans to qualify under 
section 401(a): Stock bonus, pension, and profit-sharing plans. Section 
1.401-1(a)(2)(i) and (b)(1)(i) of the Income Tax Regulations interprets 
what it means to be a ``pension plan,'' and has done so since the 
publication of those regulations as TD 6203 (1956-2 CB 219) (see Sec.  
601.601(d)(2)(ii)(b)). These regulations (the 1956 regulations) provide 
that a qualified plan under section 401(a) is a program and arrangement 
which is established and maintained by an employer ``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.'' \1\ The 
1956 regulations defining a qualified pension plan further provide that 
a pension plan must be ``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.''
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    \1\ This rule is limited to a pension plan, which is either a 
defined benefit plan or a defined contribution plan that is not a 
stock bonus or profit-sharing plan (generally referred to as a money 
purchase pension plan). Other rules apply to stock bonus plans and 
profit-sharing plans.
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    Following the enactment of the Employee Retirement Income Security 
Act of 1974 (ERISA), 93 Public Law 406 (88 Stat. 829), the regulations 
under section 401(a) were modified to provide that the 1956 regulations 
continued to apply, except as otherwise provided. See Sec.  1.401(a)-
1(b)(1)(i) and (ii). Accordingly, a pension plan is generally not 
permitted to pay benefits before retirement. See also Rev. Rul. 56-693 
(1956-2 CB 282), as modified by Rev. Rul. 60-323 (1960-2 CB 148) (see 
Sec.  601.601(d)(2)(ii)(b)).
    Rev. Rul. 71-24 (1971-1 CB 114) (see Sec.  601.601(d)(2)(ii)(b)) 
provides guidance for the treatment of benefits under a pension plan 
for employees who continue employment after normal retirement age. Rev. 
Rul. 71-24 includes an example that indicates that benefits are 
permitted to commence during employment after normal retirement age.
    Rev. Rul. 71-147 (1971-1 CB 116) (see Sec.  601.601(d)(2)(ii)(b)) 
provides that the normal retirement age in a pension or annuity plan is 
generally the lowest age specified in the plan at which the employee 
has the right to retire without the consent of the employer and receive 
retirement benefits based on the amount of the employee's service on 
the date of retirement at the full rate set forth in the plan (that is, 
without actuarial or similar reduction because of retirement before 
some later specified age). While ordinarily the normal retirement age 
under pension and annuity plans is age 65, Rev. Rul. 71-147 permitted a 
different age to be specified, but an age lower than 65 was permitted 
only if the age represented the age at which employees customarily 
retire in the particular company or industry, and was not a device to 
accelerate funding.
    Following the enactment of section 411(a)(8) (defining normal 
retirement age as described earlier in this preamble) under ERISA, Rev. 
Rul. 71-147 was modified by Rev. Rul. 78-120 (1978-1 CB 117) (see Sec.  
601.601(d)(2)(ii)(b)). Under Rev. Rul. 78-120, for purposes of section 
411, a pension plan is permitted to have a normal retirement age lower 
than age 65, regardless of the age at which employees customarily 
retire in the particular company or industry.
    Section 401(a)(36), added by section 905(b) of the Pension 
Protection Act of 2006, Public Law 109-280 (120 Stat. 780) (PPA '06), 
provides that a trust forming part of a pension plan is not treated as 
failing to constitute a qualified trust under section 401(a) solely 
because the plan provides that a distribution may be made from such 
trust to an employee who has attained

[[Page 28605]]

age 62 and who is not separated from employment at the time of such 
distribution. Section 401(a)(36) applies to distributions in plan years 
beginning after December 31, 2006.
    On November 10, 2004, a notice of proposed rulemaking (REG-114726-
04) under section 401 was published in the Federal Register (69 FR 
65108) (the proposed regulations). The proposed regulations would have 
allowed in-service distributions after normal retirement age, but would 
not have permitted a normal retirement age to be set so low as to be a 
subterfuge to avoid qualification requirements. The proposed 
regulations would also have permitted in-service distributions before 
normal retirement age under a bona fide phased retirement program.
    On March 14, 2005, the IRS held a public hearing on the proposed 
regulations. Written comments responding to the notice of proposed 
rulemaking were also received. In light of the enactment of section 
401(a)(36) by PPA '06, only portions of the proposed regulations are 
being finalized at this time. The IRS recently issued a notice 
requesting comments as to whether the portions of the proposed 
regulations relating to in-service distributions pursuant to a bona 
fide phased retirement program should be finalized. See Notice 2007-8 
(2007-3 IRB 276) (see Sec.  601.601(d)(2)(ii)(b)). The portions of the 
proposed regulations relating to normal retirement age and in-service 
distribution upon attainment of normal retirement age are being 
finalized by this Treasury Decision. The significant revisions to the 
proposed regulations are discussed in this preamble.

Explanation of Provisions and Summary of Comments

I. Overview

    This Treasury Decision modifies existing regulations, including the 
regulations at Sec.  1.401(a)-1 which generally require a pension plan 
to be maintained primarily to provide systematically for the payment of 
definitely determinable benefits after retirement. These regulations 
provide two exceptions to this rule. First, they clarify that a pension 
plan is permitted to commence payment of retirement benefits to a 
participant after the participant has attained normal retirement age. 
The regulations also provide rules on how low a plan's normal 
retirement age is permitted to be and include a related exception to 
the anti-cutback rules of section 411(d)(6) to allow conforming 
amendments during a transitional period. Second, the regulations 
reflect the provisions of new section 401(a)(36).

II. Normal Retirement Age

A. In General

    These regulations adopt the rule of the proposed regulations under 
which a pension plan (a defined benefit plan or money purchase pension 
plan) is permitted to pay benefits upon an employee's attainment of 
normal retirement age, even if the employee has not yet had a severance 
from employment with the employer maintaining the plan. Comments 
generally supported the inclusion of this rule as reflecting existing 
practice among some pension plans, based on an example in Rev. Rul. 71-
24.
    These regulations also include rules restricting a plan's normal 
retirement age. The proposed regulations would have provided that a 
plan's normal retirement age could not be set so low as to be a 
subterfuge to avoid the requirements of section 401(a), and, 
accordingly, normal retirement age could not be earlier than the 
earliest age that is reasonably representative of a typical retirement 
age for the covered workforce.\2\ Some comments expressed concern about 
the specifics of this rule, including concern about how it might be 
applied in various circumstances, and suggested that the regulations 
contain a safe harbor for which there would be no need for a 
demonstration of the typical retirement age for the covered workforce.
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    \2\ The preamble to the proposed regulations noted that, while a 
low normal retirement age may have a significant cost effect on a 
traditional defined benefit plan, this effect is not as significant 
for defined contribution plans or for certain hybrid defined benefit 
plans.
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    These final regulations modify the proposed regulations to replace 
the subterfuge standard with a requirement that the normal retirement 
age under a plan be an age that is not earlier than the earliest age 
that is reasonably representative of the typical retirement age for the 
industry in which the covered workforce is employed. To address 
comments about the need for a safe harbor age, these regulations 
provide that a normal retirement age of at least age 62 is deemed to be 
not earlier than the typical retirement age for the industry in which 
the covered workforce is employed. Thus, a plan satisfies this safe 
harbor if its normal retirement age is age 62, or if its normal 
retirement age is the later of age 62 or another specified date, such 
as the later of age 62 or the fifth anniversary of plan participation. 
However, a plan that is subject to section 411 cannot provide for a 
normal retirement age that is later than the later of the time the 
participant attains age 65 or the fifth anniversary of the time the 
participant commenced participation in the plan. See section 
411(a)(8)(B).
    If a plan's normal retirement age is earlier than age 62, the 
determination of whether the age is not earlier than the earliest age 
that is reasonably representative of the typical retirement age for the 
industry in which the covered workforce is employed is based on all of 
the relevant facts and circumstances. If the normal retirement age is 
between ages 55 and 62, then it is generally expected that a good faith 
determination of the typical retirement age for the industry in which 
the covered workforce is employed that is made by the employer (or, in 
the case of a multiemployer plan, made by the trustees) will be given 
deference, assuming that the determination is reasonable under the 
facts and circumstances. However, a normal retirement age that is lower 
than age 55 is presumed to be earlier than the earliest age that is 
reasonably representative of the typical retirement age for the 
industry of the relevant covered workforce absent facts and 
circumstances that demonstrate otherwise to the Commissioner.
    In the case of a plan where substantially all of the participants 
in the plan are qualified public safety employees (within the meaning 
of section 72(t)(10)(B), as added by section 828 of PPA '06), a normal 
retirement age of age 50 or later is deemed not to be earlier than the 
earliest age that is reasonably representative of the typical 
retirement age for the industry in which the covered workforce is 
employed. Under section 72(t)(10)(B), a qualified public safety 
employee means any employee of a State or political subdivision of a 
State who provides police protection, firefighting services, or 
emergency medical services for any area within the jurisdiction of such 
State or political subdivision.

B. Section 411(d)(6) Relief

    These regulations include an amendment to the existing regulations 
under section 411(d)(6) to permit a plan to be amended during a 
transition period to conform to the rules concerning normal retirement 
age. Thus, a plan amendment that changes the normal retirement age 
under the plan to a later normal retirement age (pursuant to these 
regulations) does not violate section 411(d)(6) merely because the 
amendment eliminates a right to an in-service distribution prior to the 
amended normal retirement age.

[[Page 28606]]

However, this rule does not provide any other relief. For example, this 
rule does not permit the amendment to reduce benefits in some other 
manner that fails to satisfy section 411(d)(6). Neither does the rule 
provide relief under section 411(a)(9) (requiring that the normal 
retirement benefit not be less than the greater of any early retirement 
benefit payable under the plan or the benefit under the plan commencing 
at normal retirement age), section 411(a)(10) (if the amendment changes 
the plan's vesting rules), or section 4980F (or section 204(h), the 
parallel provision of ERISA) (relating to amendments that reduce the 
rate of future benefit accrual). See also Rev. Rul. 81-210 (1981-2 CB 
89) (see Sec.  601.601(d)(2)(ii)(b)). An example is included to 
illustrate this rule.

Effective Dates

    These regulations are generally applicable May 22, 2007. In the 
case of a governmental plan (as defined in section 414(d)), these 
regulations apply with respect to plan years beginning on or after 
January 1, 2009. In the case of a plan maintained pursuant to one or 
more collective bargaining agreements that have been ratified and are 
in effect on May 22, 2007, these regulations do not apply before the 
first plan year that begins after the last of the agreements terminates 
determined without regard to any extension thereof (or, if earlier, May 
24, 2010.
    A provision of a plan that results in the failure of the plan to 
satisfy Sec.  1.401(a)-1(b)(2) or (3) is a disqualifying provision 
described in Sec.  1.401(b)-1(b)(3)(i). Therefore, the remedial 
amendment period rules of Sec.  1.401(b)-1 apply. For example, in the 
case of a plan with a calendar plan year that is maintained by an 
employer with a calendar taxable year (and the plan is not a 
governmental plan and is not maintained pursuant to a collective 
bargaining agreement), the plan's remedial amendment period with 
respect to Sec.  1.401(a)-1(b)(2) and (3) ends on the date prescribed 
by law for the filing of the employer's income tax return (including 
extensions) for the 2007 taxable year.
    In the case of a plan amendment that increases the plan's normal 
retirement age pursuant to this regulation, the amendment may also 
eliminate a right to an in-service distribution prior to the normal 
retirement age under the plan as amended without violating section 
411(d)(6) if the amendment is adopted after May 22, 2007 and on or 
before the last day of the applicable remedial amendment period under 
Sec.  1.401(b)-1 with respect to the requirements of Sec.  1.401(a)-
1(b)(2) and (3). For purposes of section 1107 of PPA '06, such an 
amendment is not made pursuant to PPA '06 and is not made pursuant to 
any regulation issued under PPA '06.

Special Analyses

    It has been determined that this Treasury Decision is not a 
significant regulatory action as defined in Executive Order 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) does not apply to these regulations, and because the 
regulation does not impose a collection of information requirement upon 
small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) 
does not apply. 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 authors of these regulations are Christopher A. 
Crouch (formerly of the Office of the Division Counsel/Associate Chief 
Counsel (Tax Exempt and Government Entities)), Cathy A. Vohs and Janet 
A. Laufer of the Office of the Division Counsel/Associate Chief Counsel 
(Tax Exempt and Government Entities). 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

0
Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 is amended by adding an 
entry in numerical order to read in part as follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 1.401(a)-1 also issued under 26 U.S.C. 401. * * *

0
Par. 2. Section 1.401(a)-1 is amended by:
0
1. Revising paragraph (b)(1)(i).
0
2. Adding paragraphs (b)(2), (b)(3), and (b)(4).
0
The additions and revision read as follows:


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

* * * * *
    (b) * * *
    (1) * * *
    (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 or attainment of normal 
retirement age (subject to paragraph (b)(2) of this section). A plan 
does not fail to satisfy this paragraph (b)(1)(i) merely because the 
plan provides, in accordance with section 401(a)(36), that a 
distribution may be made from the plan to an employee who has attained 
age 62 and who is not separated from employment at the time of such 
distribution.
* * * * *
    (2) Normal retirement age--(i) General rule. The normal retirement 
age under a plan must be an age that is not earlier than the earliest 
age that is reasonably representative of the typical retirement age for 
the industry in which the covered workforce is employed.
    (ii) Age 62 safe harbor. A normal retirement age under a plan that 
is age 62 or later is deemed to be not earlier than the earliest age 
that is reasonably representative of the typical retirement age for the 
industry in which the covered workforce is employed.
    (iii) Age 55 to age 62. In the case of a normal retirement age that 
is not earlier than age 55 and is earlier than age 62, whether the age 
is not earlier than the earliest age that is reasonably representative 
of the typical retirement age for the industry in which the covered 
workforce is employed is based on all of the relevant facts and 
circumstances.
    (iv) Under age 55. A normal retirement age that is lower than age 
55 is presumed to be earlier than the earliest age that is reasonably 
representative of the typical retirement age for the industry in which 
the covered workforce is employed, unless the Commissioner determines 
that under the facts and circumstances the normal retirement age is not 
earlier than the earliest age that is reasonably representative of the 
typical retirement age for the industry in which the covered workforce 
is employed.
    (v) Age 50 safe harbor for qualified public safety employees. A 
normal retirement age under a plan that is age 50 or later is deemed to 
be not earlier than the earliest age that is reasonably representative 
of the typical retirement age for the industry in which the covered 
workforce is employed if substantially all of the participants in

[[Page 28607]]

the plan are qualified public safety employees (within the meaning of 
section 72(t)(10)(B)).
    (3) Benefit distribution prior to retirement. For purposes of 
paragraph (b)(1)(i) of this section, retirement does not include a mere 
reduction in the number of hours that an employee works. Accordingly, 
benefits may not be distributed prior to normal retirement age solely 
due to a reduction in the number of hours that an employee works.
    (4) Effective date. Except as otherwise provided in this paragraph 
(b)(4), paragraphs (b)(2) and (3) of this section are effective May 22, 
2007. In the case of a governmental plan (as defined in section 
414(d)), paragraphs (b)(2) and (3) of this section are effective for 
plan years beginning on or after January 1, 2009. In the case of a plan 
maintained pursuant to one or more collective bargaining agreements 
that have been ratified and are in effect on May 22, 2007, paragraphs 
(b)(2) and (3) of this section do not apply before the first plan year 
that begins after the last of such agreements terminate determined 
without regard to any extension thereof (or, if earlier, May 24, 2010. 
See Sec.  1.411(d)-4, A-12, for a special transition rule in the case 
of a plan amendment that increases a plan's normal retirement age 
pursuant to paragraph (b)(2) of this section.

0
Par. 3. Section 1.411(d)-4 is amended by adding Q&A-12 as follows:


Sec.  1.411(d)-4  Section 411(d)(6) protected benefits.

* * * * *
    Q-12. Is there a transition period during which a plan is permitted 
to eliminate a right to in-service distributions in connection with an 
amendment to ensure that the plan's normal retirement age satisfies the 
requirements of Sec.  1.401(a)-1(b)(2)?
    A-12. (a) In general. A plan amendment that changes the normal 
retirement age under the plan to a later normal retirement age pursuant 
to Sec.  1.401(a)-1(b)(2) does not violate section 411(d)(6) merely 
because it eliminates a right to an in-service distribution prior to 
the amended normal retirement age. However, this paragraph does not 
provide relief from any other applicable requirements; for example, 
this relief does not permit the amendment to violate section 411(a)(9) 
(requiring that the normal retirement benefit not be less than the 
greater of any early retirement benefit payable under the plan or the 
benefit under the plan commencing at normal retirement age), section 
411(a)(10) (if the amendment changes the plan's vesting rules), section 
411(d)(6) (other than elimination of the right to an in-service 
distribution prior to the amended normal retirement age), or section 
4980F (relating to an amendment that reduces the rate of future benefit 
accrual). This paragraph only applies to a plan amendment that is 
adopted after May 22, 2007 and on or before the last day of the 
applicable remedial amendment period under Sec.  1.401(b)-1 with 
respect to the requirements of Sec.  1.401(a)-1(b)(2) and (3).
    (b) Example. The following example illustrates the application of 
this section:

    (i) Facts. (A) Plan A is a defined benefit plan intended to be 
qualified under section 401(a). Plan A is maintained by a calendar 
year taxpayer and has a normal retirement age that is age 45. For 
employees who cease employment before normal retirement age with a 
vested benefit, Plan A permits benefits to commence at any date 
after the attainment of normal retirement age through attainment of 
age 70\1/2\ and provides for benefits to be actuarially increased to 
the extent they commence after normal retirement age. For employees 
who continue employment after attainment of normal retirement age, 
Plan A provides for benefits to continue to accrue and permits 
benefits to commence at any time, with an actuarial increase in 
benefits to apply to the extent benefits do not commence after 
normal retirement age. Age 45 is an age that is earlier than the 
earliest age that is reasonably representative of the typical 
retirement age for the industry in which the covered workforce is 
employed.
    (B) On February 18, 2008, Plan A is amended, effective May 22, 
2007, to change its normal retirement age to the later of age 65 or 
the fifth anniversary of participation in the plan. The amendment 
provides full vesting for any participating employee who is employed 
on May 21, 2007, and who terminates employment on or after attaining 
age 45. The amendment provides employees who cease employment before 
the revised normal retirement age and who are entitled to a vested 
benefit with the right to be able to commence benefits at any date 
from age 45 to age 70\1/2\. The plan amendment also revises the 
plan's benefit accrual formula so that the benefit for prior service 
(payable commencing at the revised normal retirement age or any 
other age after age 45) is not less than would have applied under 
the plan's formula before the amendment (also payable commencing at 
the corresponding dates), based on the benefit accrued on May 21, 
2007, and provides for service thereafter to have the same rate of 
future benefit accrual. Thus, for any participant employed on May 
21, 2007, with respect to benefits accrued for service after May 21, 
2007, the amount payable under the plan (as amended) at any benefit 
commencement date after age 45 is the same amount that would have 
been payable at that benefit commencement date under the plan prior 
to amendment. The plan amendment also eliminates the right to an in-
service distribution between age 45 and the revised normal 
retirement age. Plan A has been operated since May 22, 2007, in 
conformity with the amendment adopted on February 18, 2008.
    (ii) Conclusion. The plan amendment does not violate section 
411(d)(6). Although the amendment eliminates the right to commence 
benefits in-service between age 45 and the revised normal retirement 
age, the amendment is made before the last day of the remedial 
amendment period applicable to the plan under Sec.  1.401(b)-1 with 
respect to the requirements of Sec.  1.401(a)-1(b)(2) and (3), and 
therefore the amendment is permitted under paragraph (a) of this A-
12. Further, the amendment does not result in a reduction in any 
benefit for service after May 22, 2007.
    Thus, the amendment does not result in a reduction in any 
benefit for future service, and advance notice of a significant 
reduction in the rate of future benefit accrual is not required 
under section 4980F.

Kevin M. Brown,
Deputy Commissioner for Services and Enforcement.
    Approved: May 9, 2007.
Eric Solomon,
Assistant Secretary of the Treasury (Tax Policy).
 [FR Doc. E7-9643 Filed 5-21-07; 8:45 am]
BILLING CODE 4830-01-P