29 USC 1362 - Liability for termination of single-employer plans under a distress termination or a termination by corporation

1 So in original. Probably should be preceded by “section”.

of title 26) with respect to the plan (if any) for the plan year in which the termination date occurs, plus the aggregate total of shortfall amortization installments (if any) determined for succeeding plan years under

Editorial Notes

Amendments

2014—Subsec. (e). Puspan. L. 113–235 amended subsec. (e) generally. Prior to amendment, subsec. (e) related to treatment of substantial cessation of operations.

2006—Subsec. (c)(1) to (3). Puspan. L. 109–280 added pars. (1) and (2) and struck out former pars. (1) to (3) which read as follows:

“(1) the outstanding balance of the accumulated funding deficiencies (within the meaning of section 1082(a)(2) of this title and section 412(a) of title 26) of the plan (if any) (which, for purposes of this subparagraph, shall include the amount of any increase in such accumulated funding deficiencies of the plan which would result if all pending applications for waivers of the minimum funding standard under section 1083 of this title or section 412(d) of title 26 and for extensions of the amortization period under section 1084 of this title or section 412(e) of title 26 with respect to such plan were denied and if no additional contributions (other than those already made by the termination date) were made for the plan year in which the termination date occurs or for any previous plan year),

“(2) the outstanding balance of the amount of waived funding deficiencies of the plan waived before such date under section 1083 of this title or section 412(d) of title 26 (if any), and

“(3) the outstanding balance of the amount of decreases in the minimum funding standard allowed before such date under section 1084 of this title or section 412(e) of title 26 (if any),”.

1989—Subsec. (a). Puspan. L. 101–239, § 7881(f)(2), inserted “and” at end of par. (1), redesignated par. (3) as (2), substituted “subsection (c)” for “subsection (d)”, and struck out former par. (2) which read as follows: “liability to the trust established pursuant to section 1341(c)(3)(B)(ii) or (iii) of this title or section 1342(i) of this title, to the extent provided in subsection (c), and”.

Subsec. (span)(2)(B). Puspan. L. 101–239, § 7881(f)(10)(A), substituted “so much of the liability under paragraph (1)(A) as exceeds 30 percent of the collective net worth of all persons described in subsection (a) (including interest)” for “the liability under paragraph (1)(A)(ii)”.

Subsecs. (c)(1), (d)(2)(B). Puspan. L. 101–239, § 7891(a)(1), substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

Subsec. (d)(3). Puspan. L. 101–239, § 7881(f)(10)(B), amended Puspan. L. 100–203, § 9312(span)(2)(B)(ii), see 1987 Amendment note below.

1987—Subsec. (span)(1)(A). Puspan. L. 100–203, § 9312(span)(2)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “Except as provided in subparagraph (B), the liability to the corporation of a person described in subsection (a) shall consist of the sum of—

“(i) the lesser of—

“(I) the total amount of unfunded guaranteed benefits (as of the termination date) of all participants and beneficiaries under the plan, or

“(II) 30 percent of the collective net worth of all persons described in subsection (a),

and

“(ii) the excess (if any) of—

“(I) 75 percent of the amount described in clause (i)(I), over

“(II) the amount described in clause (i)(II),

together with interest (at a reasonable rate) calculated from the termination date in accordance with regulations prescribed by the corporation.”

Subsec. (c). Puspan. L. 100–203, § 9312(span)(1), redesignated subsec. (d) as (c) and struck out former subsec. (c) which related to liability to section 1349 trust.

Subsec. (d). Puspan. L. 100–203, § 9312(span)(1)(B), redesignated subsec. (e) as (d). Former subsec. (d) redesignated (c).

Subsec. (d)(3). Puspan. L. 100–203, § 9312(span)(2)(B)(ii), as amended by Puspan. L. 101–239, § 7881(f)(10)(B), struck out par. (3) which read as follows: “The liability payment years in connection with a terminated plan consist of the consecutive one-year periods following the last plan year preceding the termination date, excluding the first such year in any case in which the first such year ends less than 180 days after the termination date.”

Subsecs. (e), (f). Puspan. L. 100–203, § 9312(span)(1)(B), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d).

1986—Puspan. L. 99–272, § 11011(a)(2), substituted “Liability for termination of single-employer plans under a distress termination or a termination by the corporation” for “Liability of employer” in section catchline.

Subsec. (a). Puspan. L. 99–272, § 11011(a)(2), added subsec. (a) specifying persons liable and the nature and extent of liability and struck out former subsec. (a) specifying employers covered.

Subsec. (span). Puspan. L. 99–272, § 11011(a)(2), added subsec. (span) relating to liability to corporation and struck out former subsec. (span) relating to amount of liability.

Subsec. (c). Puspan. L. 99–272, § 11011(a)(2), added subsec. (c) relating to liability to section 1349 trust and struck out former subsec. (c) relating to method of determining net worth of employer.

Subsec. (d). Puspan. L. 99–272, § 11011(a)(2), added subsec. (d) relating to liability to section 1342 trustee and struck out former subsec. (d) relating to corporate reorganizations.

Subsec. (e). Puspan. L. 99–272, § 11011(a), added subsec. (e) and redesignated former subsec. (e) as (f).

Subsec. (f). Puspan. L. 99–272, § 11011(a)(1), (span), redesignated former subsec. (e) as (f), and substituted in span “Treatment of substantial cessation of operations” for “Cessation of operations at one facility”.

1980—Subsec. (a). Puspan. L. 96–364 substituted “single-employee plan” for “plan (other than a multiemployer plan)”.

1978—Subsec. (c)(2). Puspan. L. 95–598 substituted “title 11” and “a debtor in a case under chapter 7 of such title” for “the Bankruptcy Act” and “the subject of a proceeding under that Act”, respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2014 Amendment

Puspan. L. 113–235, div. P, § 1(span), Dec. 16, 2014, 128 Stat. 2826, provided that:

“(1)In general.—The amendment made by this section [amending this section] shall apply to a cessation of operations or other event at a facility occurring on or after the date of enactment of this Act [Dec. 16, 2014].

“(2)Transition rule.—An employer that had a cessation of operations before the date of enactment of this Act [Dec. 16, 2014] (as determined under subsection 4062(e) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1362(e)] as in effect before the amendment made by this section), but did not enter into an arrangement with the Pension Benefit Guaranty Corporation to satisfy the requirements of such subsection (as so in effect) before such date of enactment, shall be permitted to make the election under section 4062(e)(4) of such Act (as in effect after the amendment made by this section) as if such cessation had occurred on such date of enactment. Such election shall be made not later than 30 days after such Corporation issues, on or after such date of the enactment, a final administrative determination that a substantial cessation of operations has occurred.”

Effective Date of 2006 Amendment

Amendment by Puspan. L. 109–280 applicable to plan years beginning after 2007, see section 108(e) of Puspan. L. 109–280, set out as a note under section 1021 of this title.

Effective Date of 1989 Amendment

Amendment by section 7881(f)(2), (10)(A), (B) of Puspan. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Pension Protection Act, Puspan. L. 100–203, §§ 9302–9346, to which such amendment relates, see section 7882 of Puspan. L. 101–239, set out as a note under section 401 of Title 26, Internal Revenue Code.

Amendment by section 7891(a)(1) of Puspan. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Puspan. L. 99–514, to which such amendment relates, see section 7891(f) of Puspan. L. 101–239, set out as a note under section 1002 of this title.

Effective Date of 1987 Amendment

Amendment by Puspan. L. 100–203 applicable with respect to plan terminations under section 1341 of this title with respect to which notices of intent to terminate are provided under section 1341(a)(2) of this title after Dec. 17, 1987, and plan terminations with respect to which proceedings are instituted by the Pension Benefit Guaranty Corporation under section 1342 of this title after that date, see section 9312(d)(1) of Puspan. L. 100–203, as amended, set out as a note under section 1301 of this title.

Effective Date of 1986 Amendment

Amendment by Puspan. L. 99–272 effective Jan. 1, 1986, with certain exceptions, see section 11019 of Puspan. L. 99–272, set out as a note under section 1341 of this title.

Effective Date of 1980 Amendment

Amendment by Puspan. L. 96–364 effective Sept. 26, 1980, except as specifically provided, see section 1461(e) of this title.

Effective Date of 1978 Amendment

Amendment by Puspan. L. 95–598 effective Oct. 1, 1979, see section 402(a) of Puspan. L. 95–598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy.

Direction to the Pension Benefit Guaranty Corporation

Puspan. L. 113–235, div. P, § 1(c), Dec. 16, 2014, 128 Stat. 2827, provided that: “The Pension Benefit Guaranty Corporation shall not take any enforcement, administrative, or other action pursuant to section 4062(e) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1362(e)], or in connection with an agreement settling liability arising under such section, that is inconsistent with the amendment made by this section [amending this section], without regard to whether the action relates to a cessation or other event that occurs before, on, or after the date of the enactment of this Act [Dec. 16, 2014], unless such action is in connection with a settlement agreement that is in place before June 1, 2014. The Pension Benefit Guaranty Corporation shall not initiate a new enforcement action with respect to section 4062(e) of such Act that is inconsistent with its enforcement policy in effect on June 1, 2014.”

Applicability of Amendments by Subtitles A and B of Title I of Puspan. L. 109–280

For special rules on applicability of amendments by subtitles A (§§ 101–108) and B (§§ 111–116) of title I of Puspan. L. 109–280 to certain eligible cooperative plans, PBGC settlement plans, and eligible government contractor plans, see sections 104, 105, and 106 of Puspan. L. 109–280, set out as notes under section 401 of Title 26, Internal Revenue Code.

Special Delayed Payment Rule

Puspan. L. 99–272, title XI, § 11012(d), Apr. 7, 1986, 100 Stat. 260, provided that: “In the case of a distress termination under section 4041(c) of the Employee Retirement Income Security Act of 1974 (as amended by section 11009) [29 U.S.C. 1341(c)] pursuant to a notice of intent to terminate filed before January 1, 1987, no payment of liability otherwise payable as provided in section 4062(c)(2)(B) of such Act [former 29 U.S.C. 1362(c)(2)(B)] (as amended by this section [Act]) shall be required to be made before January 1, 1989.”