§ 1103. Establishment of trust
(a)
Benefit plan assets to be held in trust; authority of trustees
Except as provided in subsection (b) of this section, all assets of an employee benefit plan shall be held in trust by one or more trustees. Such trustee or trustees shall be either named in the trust instrument or in the plan instrument described in section
1102
(a) of this title or appointed by a person who is a named fiduciary, and upon acceptance of being named or appointed, the trustee or trustees shall have exclusive authority and discretion to manage and control the assets of the plan, except to the extent that—
(1)
the plan expressly provides that the trustee or trustees are subject to the direction of a named fiduciary who is not a trustee, in which case the trustees shall be subject to proper directions of such fiduciary which are made in accordance with the terms of the plan and which are not contrary to this chapter, or
(b)
Exceptions
The requirements of subsection (a) of this section shall not apply—
(1)
to any assets of a plan which consist of insurance contracts or policies issued by an insurance company qualified to do business in a State;
(2)
to any assets of such an insurance company or any assets of a plan which are held by such an insurance company;
(3)
to a plan—
(A)
some or all of the participants of which are employees described in section
401
(c)(1) of title
26; or
(4)
to a plan which the Secretary exempts from the requirement of subsection (a) of this section and which is not subject to any of the following provisions of this chapter—
(5)
to a contract established and maintained under section
403
(b) of title
26 to the extent that the assets of the contract are held in one or more custodial accounts pursuant to section
403
(b)(7) of title
26.
(6)
Any plan, fund or program under which an employer, all of whose stock is directly or indirectly owned by employees, former employees or their beneficiaries, proposes through an unfunded arrangement to compensate retired employees for benefits which were forfeited by such employees under a pension plan maintained by a former employer prior to the date such pension plan became subject to this chapter.
(c)
Assets of plan not to inure to benefit of employer; allowable purposes of holding plan assets
(1)
Except as provided in paragraph (2), (3), or (4) or subsection (d) of this section, or under sections
1342 and
1344 of this title (relating to termination of insured plans), or under section
420 of title
26 (as in effect on August 17, 2006), the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.
(2)
(A)
In the case of a contribution, or a payment of withdrawal liability under part 1 of subtitle E of subchapter III of this chapter—
(i)
if such contribution or payment is made by an employer to a plan (other than a multiemployer plan) by a mistake of fact, paragraph (1) shall not prohibit the return of such contribution to the employer within one year after the payment of the contribution, and
(ii)
if such contribution or payment is made by an employer to a multiemployer plan by a mistake of fact or law (other than a mistake relating to whether the plan is described in section
401
(a) of title
26 or the trust which is part of such plan is exempt from taxation under section
501
(a) of title
26), paragraph (1) shall not prohibit the return of such contribution or payment to the employer within 6 months after the plan administrator determines that the contribution was made by such a mistake.
(B)
If a contribution is conditioned on initial qualification of the plan under section
401 or
403
(a) of title
26, and if the plan receives an adverse determination with respect to its initial qualification, then paragraph (1) shall not prohibit the return of such contribution to the employer within one year after such determination, but only if the application for the determination is made by the time prescribed by law for filing the employer’s return for the taxable year in which such plan was adopted, or such later date as the Secretary of the Treasury may prescribe.
(C)
If a contribution is conditioned upon the deductibility of the contribution under section
404 of title
26, then, to the extent the deduction is disallowed, paragraph (1) shall not prohibit the return to the employer of such contribution (to the extent disallowed) within one year after the disallowance of the deduction.
(d)
Termination of plan
(1)
Upon termination of a pension plan to which section
1321 of this title does not apply at the time of termination and to which this part applies (other than a plan to which no employer contributions have been made) the assets of the plan shall be allocated in accordance with the provisions of section
1344 of this title, except as otherwise provided in regulations of the Secretary.