§ 420. Transfers of excess pension assets to retiree health accounts
(a)
General rule
If there is a qualified transfer of any excess pension assets of a defined benefit plan to a health benefits account which is part of such plan—
(1)
a trust which is part of such plan shall not be treated as failing to meet the requirements of subsection (a) or (h) of section
401 solely by reason of such transfer (or any other action authorized under this section),
(2)
no amount shall be includible in the gross income of the employer maintaining the plan solely by reason of such transfer,
(b)
Qualified transfer
For purposes of this section—
(1)
In general
The term “qualified transfer” means a transfer—
(2)
Only 1 transfer per year
(3)
Limitation on amount transferred
The amount of excess pension assets which may be transferred in a qualified transfer shall not exceed the amount which is reasonably estimated to be the amount the employer maintaining the plan will pay (whether directly or through reimbursement) out of such account during the taxable year of the transfer for qualified current retiree health liabilities.
(4)
Special rule for 1990
(A)
In general
Subject to the provisions of subsection (c), a transfer shall be treated as a qualified transfer if such transfer—
(c)
Requirements of plans transferring assets
(1)
Use of transferred assets
(A)
In general
Any assets transferred to a health benefits account in a qualified transfer (and any income allocable thereto) shall be used only to pay qualified current retiree health liabilities (other than liabilities of key employees not taken into account under subsection (e)(1)(D)) for the taxable year of the transfer (whether directly or through reimbursement). In the case of a qualified future transfer or collectively bargained transfer to which subsection (f) applies, any assets so transferred may also be used to pay liabilities described in subsection (f)(2)(C).
(B)
Amounts not used to pay for health benefits
(i)
In general
Any assets transferred to a health benefits account in a qualified transfer (and any income allocable thereto) which are not used as provided in subparagraph (A) shall be transferred out of the account to the transferor plan.
(ii)
Tax treatment of amounts
Any amount transferred out of an account under clause (i)—
(II)
shall be treated as an employer reversion for purposes of section
4980 (without regard to subsection (d) thereof).
(2)
Requirements relating to pension benefits accruing before transfer
(A)
In general
The requirements of this paragraph are met if the plan provides that the accrued pension benefits of any participant or beneficiary under the plan become nonforfeitable in the same manner which would be required if the plan had terminated immediately before the qualified transfer (or in the case of a participant who separated during the 1-year period ending on the date of the transfer, immediately before such separation).
(B)
Special rule for 1990
In the case of a qualified transfer described in subsection (b)(4), the requirements of this paragraph are met with respect to any participant who separated from service during the taxable year to which such transfer relates by recomputing such participant’s benefits as if subparagraph (A) had applied immediately before such separation.
(3)
Minimum cost requirements
(A)
In general
The requirements of this paragraph are met if each group health plan or arrangement under which applicable health benefits are provided provides that the applicable employer cost for each taxable year during the cost maintenance period shall not be less than the higher of the applicable employer costs for each of the 2 taxable years immediately preceding the taxable year of the qualified transfer or, in the case of a transfer which involves a plan maintained by an employer described in subsection (f)(2)(E)(i)(III), if the plan meets the requirements of subsection (f)(2)(D)(i)(II).
(B)
Applicable employer cost
For purposes of this paragraph, the term “applicable employer cost” means, with respect to any taxable year, the amount determined by dividing—
(C)
Election to compute cost separately
An employer may elect to have this paragraph applied separately with respect to individuals eligible for benefits under title XVIII of the Social Security Act at any time during the taxable year and with respect to individuals not so eligible.
(D)
Cost maintenance period
For purposes of this paragraph, the term “cost maintenance period” means the period of 5 taxable years beginning with the taxable year in which the qualified transfer occurs. If a taxable year is in two or more overlapping cost maintenance periods, this paragraph shall be applied by taking into account the highest applicable employer cost required to be provided under subparagraph (A) for such taxable year.
(E)
Regulations
(i)
In general
The Secretary shall prescribe such regulations as may be necessary to prevent an employer who significantly reduces retiree health coverage during the cost maintenance period from being treated as satisfying the minimum cost requirement of this subsection.
(ii)
Insignificant cost reductions permitted
(I)
In general
An eligible employer shall not be treated as failing to meet the requirements of this paragraph for any taxable year if, in lieu of any reduction of retiree health coverage permitted under the regulations prescribed under clause (i), the employer reduces applicable employer cost by an amount not in excess of the reduction in costs which would have occurred if the employer had made the maximum permissible reduction in retiree health coverage under such regulations. In applying such regulations to any subsequent taxable year, any reduction in applicable employer cost under this clause shall be treated as if it were an equivalent reduction in retiree health coverage.
(II)
Eligible employer
For purposes of subclause (I), an employer shall be treated as an eligible employer for any taxable year if, for the preceding taxable year, the qualified current retiree health liabilities of the employer were at least 5 percent of the gross receipts of the employer. For purposes of this subclause, the rules of paragraphs (2), (3)(B), and (3)(C) of section
448
(c) shall apply in determining the amount of an employer’s gross receipts.
(d)
Limitations on employer
For purposes of this title—
(1)
Deduction limitations
No deduction shall be allowed—
(A)
for the transfer of any amount to a health benefits account in a qualified transfer (or any retransfer to the plan under subsection (c)(1)(B)),
(B)
for qualified current retiree health liabilities paid out of the assets (and income) described in subsection (c)(1), or
(e)
Definition and special rules
For purposes of this section—
(1)
Qualified current retiree health liabilities
For purposes of this section—
(A)
In general
The term “qualified current retiree health liabilities” means, with respect to any taxable year, the aggregate amounts (including administrative expenses) which would have been allowable as a deduction to the employer for such taxable year with respect to applicable health benefits provided during such taxable year if—
(B)
Reductions for amounts previously set aside
The amount determined under subparagraph (A) shall be reduced by the amount which bears the same ratio to such amount as—
(C)
Applicable health benefits
The term “applicable health benefits” means health benefits or coverage which are provided to—
(D)
Key employees excluded
If an employee is a key employee (within the meaning of section
416
(i)(1)) with respect to any plan year ending in a taxable year, such employee shall not be taken into account in computing qualified current retiree health liabilities for such taxable year or in calculating applicable employer cost under subsection (c)(3)(B).
(2)
Excess pension assets
The term “excess pension assets” means the excess (if any) of—
(A)
the lesser of—
(B)
125 percent of the sum of the funding target and the target normal cost determined under section
430 for such plan year.
(4)
Coordination with section
430
In the case of a qualified transfer, any assets so transferred shall not, for purposes of this section and section
430, be treated as assets in the plan.
(f)
Qualified transfers to cover future retiree health costs and collectively bargained retiree health benefits
(1)
In general
An employer maintaining a defined benefit plan (other than a multiemployer plan) may, in lieu of a qualified transfer, elect for any taxable year to have the plan make—
Except as provided in this subsection, a qualified future transfer and a collectively bargained transfer shall be treated for purposes of this title and the Employee Retirement Income Security Act of 1974 as if it were a qualified transfer.
(2)
Qualified future and collectively bargained transfers
For purposes of this subsection—
(A)
In general
The terms “qualified future transfer” and “collectively bargained transfer” mean a transfer which meets all of the requirements for a qualified transfer, except that—
(B)
Excess pension assets
(i)
In general
In determining excess pension assets for purposes of this subsection, subsection (e)(2) shall be applied by substituting “120 percent” for “125 percent”.
(ii)
Requirement to maintain funded status
If, as of any valuation date of any plan year in the transfer period, the amount determined under subsection (e)(2)(B) (after application of clause (i)) exceeds the amount determined under subsection (e)(2)(A), either—
(C)
Limitation on amount transferred
Notwithstanding subsection (b)(3), the amount of the excess pension assets which may be transferred—
(i)
in the case of a qualified future transfer shall be equal to the sum of—
(ii)
in the case of a collectively bargained transfer, shall not exceed the amount which is reasonably estimated, in accordance with the provisions of the collective bargaining agreement and generally accepted accounting principles, to be the amount the employer maintaining the plan will pay (whether directly or through reimbursement) out of such account during the collectively bargained cost maintenance period for collectively bargained retiree health liabilities.
(D)
Minimum cost requirements
(i)
In general
The requirements of subsection (c)(3) shall be treated as met if—
(I)
in the case of a qualified future transfer, each group health plan or arrangement under which applicable health benefits are provided provides applicable health benefits during the period beginning with the first year of the transfer period and ending with the last day of the 4th year following the transfer period such that the annual average amount of the applicable employer cost during such period is not less than the applicable employer cost determined under subsection (c)(3)(A) with respect to the transfer, and
(II)
in the case of a collectively bargained transfer, each collectively bargained group health plan under which collectively bargained health benefits are provided provides that the collectively bargained employer cost for each taxable year during the collectively bargained cost maintenance period shall not be less than the amount specified by the collective bargaining agreement.
(ii)
Election to maintain benefits for future transfers
An employer may elect, in lieu of the requirements of clause (i)(I), to meet the requirements of subsection (c)(3) by meeting the requirements of such subsection (as in effect before the amendments made by section 535 of the Tax Relief Extension Act of 1999) for each of the years described in the period under clause (i)(I).
(iii)
Collectively bargained employer cost
For purposes of this subparagraph, the term “collectively bargained employer cost” means the average cost per covered individual of providing collectively bargained retiree health benefits as determined in accordance with the applicable collective bargaining agreement. Such agreement may provide for an appropriate reduction in the collectively bargained employer cost to take into account any portion of the collectively bargained retiree health benefits that is provided or financed by a government program or other source.
(E)
Special rules for collectively bargained transfers
(i)
In general
A collectively bargained transfer shall only include a transfer which—
(II)
before the transfer, the employer designates, in a written notice delivered to each employee organization that is a party to the collective bargaining agreement, as a collectively bargained transfer in accordance with this section, and
(III)
involves a plan maintained by an employer which, in its taxable year ending in 2005, provided health benefits or coverage to retirees and their spouses and dependents under all of the benefit plans maintained by the employer, but only if the aggregate cost (including administrative expenses) of such benefits or coverage which would have been allowable as a deduction to the employer (if such benefits or coverage had been provided directly by the employer and the employer used the cash receipts and disbursements method of accounting) is at least 5 percent of the gross receipts of the employer (determined in accordance with the last sentence of subsection (c)(3)(E)(ii)(II)) for such taxable year, or a plan maintained by a successor to such employer.
(ii)
Use of assets
Any assets transferred to a health benefits account in a collectively bargained transfer (and any income allocable thereto) shall be used only to pay collectively bargained retiree health liabilities (other than liabilities of key employees not taken into account under paragraph (6)(B)(iii)) for the taxable year of the transfer or for any subsequent taxable year during the collectively bargained cost maintenance period (whether directly or through reimbursement).
(3)
Coordination with other transfers
In applying subsection (b)(3) to any subsequent transfer during a taxable year in a transfer period or collectively bargained cost maintenance period, qualified current retiree health liabilities shall be reduced by any such liabilities taken into account with respect to the qualified future transfer or collectively bargained transfer to which such period relates.
(4)
Special deduction rules for collectively bargained transfers
In the case of a collectively bargained transfer—
(B)
notwithstanding subsection (d)(2), an employer may contribute an amount to a health benefits account or welfare benefit fund (as defined in section
419
(e)(1)) with respect to collectively bargained retiree health liabilities for which transferred assets are required to be used under subsection (c)(1)(B), and the deductibility of any such contribution shall be governed by the limits applicable to the deductibility of contributions to a welfare benefit fund under a collective bargaining agreement (as determined under section
419A
(f)(5)(A)) without regard to whether such contributions are made to a health benefits account or welfare benefit fund and without regard to the provisions of section
404 or the other provisions of this section.
The Secretary shall provide rules to ensure that the application of this paragraph does not result in a deduction being allowed more than once for the same contribution or for 2 or more contributions or expenditures relating to the same collectively bargained retiree health liabilities.
(5)
Transfer period
For purposes of this subsection, the term “transfer period” means, with respect to any transfer, a period of consecutive taxable years (not less than 2) specified in the election under paragraph (1) which begins and ends during the 10-taxable-year period beginning with the taxable year of the transfer.
(6)
Terms relating to collectively bargained transfers
For purposes of this subsection—
(A)
Collectively bargained cost maintenance period
The term “collectively bargained cost maintenance period” means, with respect to each covered retiree and his covered spouse and dependents, the shorter of—
(B)
Collectively bargained retiree health liabilities
(i)
In general
The term “collectively bargained retiree health liabilities” means the present value, as of the beginning of a taxable year and determined in accordance with the applicable collective bargaining agreement, of all collectively bargained health benefits (including administrative expenses) for such taxable year and all subsequent taxable years during the collectively bargained cost maintenance period.
(ii)
Reduction for amounts previously set aside
The amount determined under clause (i) shall be reduced by the value (as of the close of the plan year preceding the year of the collectively bargained transfer) of the assets in all health benefits accounts or welfare benefit funds (as defined in section
419
(e)(1)) set aside to pay for the collectively bargained retiree health liabilities.
(iii)
Key employees excluded
If an employee is a key employee (within the meaning of section
416
(I)(1)) [1] with respect to any plan year ending in a taxable year, such employee shall not be taken into account in computing collectively bargained retiree health liabilities for such taxable year or in calculating collectively bargained employer cost under subsection (c)(3)(C).
(C)
Collectively bargained health benefits
The term “collectively bargained health benefits” means health benefits or coverage which are provided to—
(i)
retired employees who, immediately before the collectively bargained transfer, are entitled to receive such benefits upon retirement and who are entitled to pension benefits under the plan, and their spouses and dependents, and
(ii)
if specified by the provisions of the collective bargaining agreement governing the collectively bargained transfer, active employees who, following their retirement, are entitled to receive such benefits and who are entitled to pension benefits under the plan, and their spouses and dependents.
[1] So in original. Probably should be “416(i)(1))”.