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"Following the Terms of the Plan"
What Does It Mean?  What if You Don't?

[This article was published in BNA Tax Memorandum, January 15, 2001. It is is based on papers presented to the San Diego chapter of the Western Pension & Benefits Conference in February 1999 and to the Dallas Bar Association’s Employee Benefits Section in November 1999. The author thanks the participants in those meetings for their valuable criticisms and comments.]

Though intertwined with the intricacies of ERISA and the Internal Revenue Code, qualified plans are, at their roots, contracts. If employees satisfy certain conditions, their employer promises to make contributions to a quasi-separate entity that will then pay compensation in the future in accordance with specified rules. The terms of this contract are severely constrained by law, but the government does not (yet) force all plans into an unvarying mold; there are usually several ways to comply with any particular legal requirement. Plan sponsors have a choice of eligibility conditions, benefit and allocation formulas, vesting schedules, distribution options and the like.

Flexibility is good. Unfortunately, the people who administer plan operations from day to day often do not know, and have no easy way to find out, what alternatives have been selected in the plan document. Indeed, in this era of hundred page plans that seek to paraphrase the entire body of pension law, experienced practitioners cannot always figure out readily what the draftsman meant to say. As a result, it is not uncommon to discover, perhaps in the course of an IRS or Department of Labor audit, that plan administration in practice does not correspond to what is written on paper.

Many variances are of minor significance or are beneficial to participants. For example, the plan administrator may disregard a plan provision that bars participant from having more than one loan outstanding at a time, or a money-losing employer may make contributions to an archaic profit sharing plan that requires that all contributions be made out of earnings and profits.

Other violations are more obviously serious, as when the wrong definition of “compensation” is used to allocate employer contributions among participants’ accounts or the wrong vesting schedule is applied to terminees.

The Status of Plan Terms Before ERISA

In the pre-ERISA era, the only remedy available to employees aggrieved by breaches of the pension contract was to bring suit under state law. Since lawsuits are expensive, slow-moving and unpredictable, a few complainants sought an alternative by invoking plan qualification standards and asking for the assistance of the Internal Revenue Service.

A 1955 Revenue Ruling1 considered the plight of a participant who separated from service at a time when he had vested rights under the terms of the plan but was not required to be vested under then-applicable law. His employer compelled him, in a manner not specified, to assign his rights back it. He complained to the IRS, which stated that “[t]he enforcement of [employees’] rights is not a responsibility of, nor within the jurisdiction of, the Internal Revenue Service”. Nevertheless, in making determinations concerning plan qualification, “consideration must be given to the actual operation of the plan, and in a case such as this it would of course be necessary to treat any assignment by the employee to the employer of the employee’s vested interest in the trust fund as a reversion to the employer which is prohibited by section 165(a)(2) of the [1939] Code [= §401(a)(2)]”.

This ruling was later updated and generalized. The new version2 expounded the role that the IRS then envisioned for itself in disputes over plan operation:

Section 1.401-1(b)(3) of the Income Tax Regulations provides that the law is concerned not only with the form of a plan but also with its effects in operation.

An employee’s rights under a trusteed pension, profit-sharing, or stock bonus plan are governed by the terms of the plan and trust agreement and the applicable provisions of local law. The jurisdiction of the [Internal Revenue] Service with respect to such a plan is limited to determinations regarding (1) whether the plan meets the applicable requirements of the Code and regulations, (2) whether amounts claimed as deductions from gross income for contributions to the plan are allowable, and (3) the tax effect of distributions under such plans. In making such determinations, consideration must be given to the actual operation of the plan.

Accordingly, it is held that the enforcement of the employee’s rights in this case is not within the jurisdiction of the Service. However, any failure to make distributions in accordance with the terms of the plan will be considered in determining whether the plan continues in a qualified status and whether contributions thereunder will continue to be deductible under section 404(a)(1) of the Code.

The implication of the statement that failure to make distributions in accordance with the terms of the plan “will be considered [emphasis added] in determining whether the plan continues in a qualified status” is that the deviation might or might not be disqualifying, depending upon whether it resulted in violation of any of the qualification rules. Unlike the 1955 ruling, this one did not describe what terms of the plan had been disregarded and thus did not reach any conclusion about whether any specific defect was disqualifying.

A 1963 private letter ruling3 arose out of another vesting dispute. Ten participants (seven of them rank-and-file employees) with vested rights under the terms of their plan went to work for a competitor of the plan sponsor. The plan had no provision for forfeiture under those circumstances, but the sponsor refused to make distributions. The IRS National Office considered the employees’ argument that the sponsor had engaged in prohibited discrimination. Due to pending litigation, it declined to rule, but it did offer some pertinent observations:

A provision for denial of vested benefits where an employee is discharged for specified cause usually does not lead to prohibited discrimination. But if there is a possibility that cause will be arbitrarily construed, discrimination may result. It follows, therefore, where a plan does not contain a provision providing for the denial of vested benefits in the event an employee is discharged for cause, that prohibited discrimination will [sc. may(?); cf. the following sentence] result upon any divestment of benefits. Each case, however, must be considered on its own merits to determine whether prohibited discrimination exists.” [emphasis added]

A 1973 ruling,4 issued during the era of wage and price controls, addressed a more benevolent deviation from plan terms. A profit sharing plan contained a fixed formula (the lesser of ten percent of current profits or 15 percent of participants’ aggregate compensation) for determining the employer’s total annual contribution. For 1972, the formula required a contribution equal to 15 percent of compensation, but the employer contributed less so that it could increase current compensation without violating the restrictions then in effect on wage increases. Holding that failure to contribute at the level required by the plan document did not result in disqualification, the IRS stated,

Although a qualified profit-sharing plan of a corporation need not contain a definite predetermined formula for determining the profits to be shared with the employees, the plan in this case contained such a formula. The contribution formula was followed until 1972 when the employer’s contribution was reduced only to the extent necessary to comply with the Pay Board Regulations. The contribution actually made was allocated on a nondiscriminatory basis and the reduced contribution does not result in the plan’s contributions being made at such times or in such amounts that the plan discriminates in favor of the groups enumerated above. Finally, the reduced contribution did not break the pattern of making recurring and substantial contributions out of profits.

Conceivably, the writer had some notion that the plan would have encountered qualification problems if the contribution shortfall had been greater than necessitated by wage-price controls, but the thrust of the reasoning is that the reduced contribution violated no qualification rules and therefore was permissible, so far as section 401(a) is concerned.

A year later, a ruling addressed the converse situation5. A profit sharing plan had a fixed contribution formula based on current profits. In 1973 the employer lost money. Nevertheless, it made a contribution to the plan out of accumulated profits. The ruling addressed the issue of whether the contribution was deductible for 1973 (it was), but the IRS must have believed that the employer’s practice raised no qualification concerns, since the deduction was allowed under section 404(a)(3), which applies only to qualified plans.

In summary, the pre-ERISA authorities disclose no evidence for an IRS view that adherence to the terms of the plan document is a sine qua non for qualified status. Failure to operate in accordance with the plan was disqualifying only where it resulted in violation of some particular requirement of section 401(a). Participants who wished to compel their employers to adhere strictly to plan terms had to resort to the courts for assistance.

The Impact of ERISA

One of the concepts underlying ERISA was the “federalization” of employee benefits law, replacing state regulation and remedies with a single, nationwide statute. Discrepancies between what plans said and what plan sponsors, fiduciaries and administrators did was not a major area of legislative concern, but the topic did receive a modicum of attention. ERISA-covered employee benefit plans must “be established and maintained pursuant to a written instrument”,6 and plan fiduciaries must carry out their duties “in accordance with the documents and instruments governing the plan”.7

ERISA’s extensive revisions to the Internal Revenue Code rules concerning qualified plans contain no parallel provisions.8 This omission is strong evidence that the authors of ERISA did not anticipate that failure to act “in accordance with the documents and instruments governing the plan” would be treated as disqualifying. Not only are requirements imposed by both Title I of ERISA and section 401(a) of the Code invariably presented in nearly identical language, but the draftsmen of the statute regarded disqualification as an undesirable sanction for misconduct covered by ERISA’s fiduciary standards. Innocent participants gain nothing from their plan’s loss of qualified status, while the parties at fault suffer little or not at all.9

The post-ERISA statutory scheme seems, then, to be fairly simple: If a plan is not administered in accordance with its terms, participants may seek redress under Title I, and the plan risks disqualification if and only if the administrative error leads to a transgression against some specific requirement of section 401(a).

The Invention of a New Qualification Requirement

In the 20 years after ERISA’s enactment, there was only one hint that some IRS personnel might have different ideas. A 1987 private letter ruling10 considered a profit sharing plan that provided that no contributions were to be made in excess of the maximum amount deductible under section 404. For several years, the employer contributed more than was deductible, although no participant received an allocation beyond the maximum permitted by section 415. The IRS held that the plan was not qualified for the years in which the excess contributions were made, because it did not operate in accordance with a “definite written program” in those years. Very oddly, the ruling relied primarily on Revenue Ruling 74-468, which appears prima facie to stand for the opposite proposition.

This tiny seed suddenly flowered seven years later, when the IRS developed the Voluntary Compliance Resolution (“VCR”) Program. VCR was designed to provide less drastic penalties than disqualification for operational violations of section 401(a). In the course of describing the program, the IRS addressed the question of what sorts of defect might be disqualifying and asserted:

. . . a plan containing provisions that satisfy the plan qualification requirements may not be operated in accordance with those provisions (an operational defect). Failure to follow the terms of the plan is a disqualifying defect even if the operation of the plan would otherwise satisfy the qualification requirements.11

No rationale was advanced for this conclusion, which, as the preceding narrative indicates, had only the flimsiest basis in precedent.

In the context of the VCR Program, the position that qualification requires strict adherence to the terms of the plan arguably has utilitarian value. The gateway for entry into VCR is the existence of a “disqualifying defect”, and a broad construction of that concept reduces the risk of esoteric disputes about whether a particular defect is eligible for consideration under the program. If a plan sponsor wants to avail itself of VCR, the IRS has little incentive to turn it away on the ground that the plan’s problems are not genuinely disqualifying.

The fact that Rev. Proc. 94-62’s position may grease the wheels of VCR does not, however, make it cogent, and a number of practitioners grumbled about what looked like an unlegislated expansion of the scope of section 401(a). A later IRS Field Directive tried to confute such objections:

A plan must be operated in compliance with its plan terms in order to be a qualified plan under section 401(a) of the Code. This requirement flows from the definitely determinable requirement and insures that employees covered by the plan receive the promised plan benefits. See regulation section 1.401-1(b)(1).

In certain specified circumstances the Service has permitted, or even required, plans to operate in a manner that is inconsistent with the written plan documents. For example, not following a plan provision in order to satisfy the requirements of section 1140 of TRA '86 is required in order to preserve plan qualification. [Footnote and additional examples omitted]

Thus [sic], unless there is some explicit rule enabling a plan sponsor not to follow plan provisions, the failure to follow plan provisions results in plan disqualification.12

This analysis is strikingly feeble. First, the requirement that a qualified plan must provide “definitely determinable benefits” applies only to pension plans.13 For those plans, the  “benefits” that must be “definitely determinable” are those “measured by, and based on, such factors as years of service and compensation received by employees”; hence, “benefits” refers to pension benefits, not indiscriminately to all features of the plan.

Second, disqualification is hardly a necessary or helpful way to “insure that employees covered by the plan receive the promised plan benefits”. Title I of ERISA contains extensive reporting, disclosure, fiduciary and enforcement provisions that were designed to give participants effective means to assert their rights. IRS assistance is not required and would in fact be harmful in those instances where participants are treated better in practice than the strict terms of the plan require. If, as Revenue Rulings 55-297 and 70-315 averred, protecting participants’ rights was not the IRS’s mission before ERISA, far more tenuous are the reasons for it to undertake that task today.

Despite its virtually nonexistent foundations, the notion that “following the terms of the plan” is a fundamental qualification requirement has become something of shibboleth - not just at the IRS but also among pension practitioners. If nothing more than theory were involved, that delusion would not matter very much. Ideas, however, have consequences, and the consequence of lazily dispatching operational deviations to the inferno of disqualification (followed by redemption through VCR) has been fuzzy thinking about the role of plan documents and what really happens when they are ignored. In the hope of promoting greater clarity on these issues, I should like to examine a series of defects, all drawn from real life, and consider how they ought to be treated under ERISA and the Code.

Nondisqualifying Operational Defects and Their Consequences

In each of the following examples, a plan sponsor, fiduciary or administrator acts in a way that contravenes some plan provision but not section 401(a). Leaving aside worries about disqualification, we consider what problems failure to abide by the plan creates and how they can be dealt with.

1.  A defined benefit pension plan has no provision for distributions before normal retirement age and does not include a lump sum option. The plan administrator, however, distributes election forms to participants upon separation from service. One of the choices on the form is a lump sum distribution (for which spousal consent is required). A number of participants have elected and received lump sum distributions.

If failure to operate a plan in accordance with its terms really were a disqualifying event, one wonders how appreciative participants in this plan would be of IRS solicitude on their behalf.

There are some possible ERISA violations in this scenario, though they are fairly remote. First, some of the distributees may have been plan fiduciaries, benefit payments to whom are prohibited transactions unless made in accordance with the terms of the plan.14

Second, one can imagine circumstances under which unauthorized lump sum distributions could ultimately harm the interests of other participants. For example, the plan might  terminate in a distress termination after substantial lump sum cashouts had left it with insufficient assets to provide other benefits. The remaining participants could then lose nonguaranteed benefits that would otherwise have been funded, and the fiduciaries responsible for the improper distributions would face the prospect of personal liability for the losses resulting from their actions.15

2.  Under a collective bargaining agreement, an employer is obligated to pay Part B Medicare premiums on behalf of retired employees. The payments are made from the union employees’ pension plan, even though neither the CBA nor the plan document authorizes the use of plan assets for that purpose.

No qualification defect is evident here. The plan’s funds have simply been diverted to meet the obligations of a party in interest (the employer), a classic prohibited transaction,16 for which ERISA eliminated disqualification as a punishment, replacing it with civil penalties and excise taxes.17

In addition, the unauthorized payments are fiduciary violations, since they are not “in accordance with the documents and instruments governing the plan”, and the responsible fiduciaries can be held personally liable for the resulting drain on plan assets.

The proper remedy, then, is for the employer to restore to the plan, with interest, the funds that were improperly removed. It is also liable for prohibited transaction penalty taxes. To the extent that it does not make the plan whole, the fiduciaries responsible for the error may have to make up any losses suffered by the plan.

3.  A profit sharing plan includes provisions incorporating limits on compensation taken into account under the plan, as prescribed by I.R.C., §401(a)(17). It also states that employer contributions will be allocated in proportion to compensation. In 1999 the aggregate compensation of all participants was $2,000,000, of which $200,00 was paid to the president. The employer made a contribution of $100,000. The plan recordkeeper, oblivious to the section 401(a)(17) limit ($160,000 in 1999) allocated $10,000 to the president’s account.

A recordkeeper cannot alter a plan’s allocation formula merely by making erroneous entries. Participants’ allocations are those produced by the formula - no more, no less. Therefore, the plan records should be corrected to show the formula allocations. The president is entitled to $8,163.27 ($160,000 [his corrected compensation]/$1,960,000 [corrected aggregate compensation] × $100,000 [employer contribution]). This revision will result in the allocation of an additional $1,836.73 to the accounts of the remaining participants.

To say that “all” that needs to be done is to bring the plan’s records into harmony with its allocation formula is not to say that the process will necessarily be simple and painless. If the recordkeeping errors go back several years, problems quickly multiply. Departing participants will have received distributions in the wrong amounts, with ripple effects through all account balances. The practical burden of “unscrambling the omelette” may render impossible any but approximate rectification.

If the plan’s records cannot be restored to exactly the position that would have existed if no error had been made, an imperfect correction simply perpetuates the problem and could lead ultimately to disqualification for failure to pay full benefits in violation of the section 411 vesting standards. Hence, the most prudent course of action may be to utilize the VCR program and obtain the IRS’s blessing for what can be done.

4.  A profit sharing plan allows participants to have only two outstanding loans at any one time. In fact, several have taken out third loans without first repaying their earlier ones.

There is an argument that loans that do not conform to plan terms violate the prohibition against the assignment or alienation of plan benefits.18 A loan to a participant that is secured by his interest in the plan is not a prohibited assignment or alienation only if it is described in section 4975(d)(1). Section 4975(d)(1)(C) states that an exempt loan must be “made in accordance with specific provisions governing such loans set forth in the plan”. By implication, a loan that is not made in accordance with plan terms contravenes the anti-alienation rule.

This line of reasoning has force where loans are general plan investments, so that a default results in foreclosure on the borrower’s interest and its reallocation to other participants. Where, as is much more common, loans are earmarked for the borrower’s own account, the use of the account balance to secure the loan is not an assignment or alienation, because nothing will leave the account upon default. One never reaches the question of whether section 4975(d)(1) applies.

A stronger case can be made for the proposition that the unauthorized loans are prohibited transactions by virtue of their failure to conform to plan terms.19 Prohibited loans of this sort ordinarily will not give rise to section 4975 penalty taxes, because few participants are “disqualified persons”, within the meaning of section §4975(e)(2). The violations must, however, be disclosed in the plan audit and could give rise to civil penalties imposed by the Department of Labor.20 They must also be corrected through repayment of the offending loan. Since immediate repayment may be a hardship for rank-and-file employees, the employer may face pressure to provide bridge financing.

5.  A section 401(k) plan limits elective deferrals to ten percent of compensation. In practice, the employer honors larger deferral elections, so long as deferrals not exceed the section 402(g) limit and annual additions to participants’ accounts do not the maximum permitted by section 415.

Although the “excess” deferrals do not violate any qualification rule, their excludibility from taxable income under section 401(k) is debatable. The regulations can be read as stating (and very likely were intended to mean) that a cash-or-deferred election is valid only if made in accordance with the terms of the cash-or-deferred arrangement.21 Assuming that the excess deferrals are not excludible from income, they presumably should be either (a) treated as after-tax contributions and included in the section 401(m) test or (b) disgorged from the plan on the theory that they should never have been contributed in the first place. If the latter course of action is preferred, the safest way to carry it out (since the contributions arguably were not made “by mistake of fact”) is for the employer to make a refund to the participant from its general assets and then to use the unauthorized deferral to offset other contributions that it normally would make to the plan. If neither of those alternatives is attractive, the plan can avail itself of the VCR program, which is open to section 401(k) defects that result in loss of excludibility of deferrals but do not affect qualification.

6.  A section 401(k) plan provides for an employer match equal to 50 percent of elective contributions, disregarding those in excess of six percent of compensation. A participant with compensation of $170,000 elects to defer 15 percent of compensation in the year 2000. After he has earned $70,000, his elective contributions cease, because he has reached the $10,500 section 402(g) limit. Contrary to plan provisions, the employer, in calculating the amount of match to which this participant is entitled, ignores all compensation earned after his deferrals reached the 402(g) limit and contributes a match of $2,100 (50% × 6% × $70,000). The participant was actually entitled to $5,100 (50% × 6% × $170,000).

If this error should not be discovered until after the end of 2001, correcting it will raise a problem. Matching contributions made later than twelve months after the end of the plan year in which the related deferrals were made are not taken into account in any year’s section 401(m) testing. Instead, they must be tested under section 401(a)(4) as if they were nonelective employer contributions and no other nonelective contributions were made to the plan.22 If the participants who has suffered the lost matches are highly compensated employees, as will almost always be the case, the tardy contributions cannot possibly satisfy section 401(a)(4). The VCR program makes it possible to resolve this dilemma. Thus, the reason for using VCR is to permit the remedy of a nondisqualifying defect through means that, undertaken unilaterally, would themselves risk loss of the plan’s qualified status.

An alternative solution, though one that may not improve employee relations, is to amend the plan to eliminate the “true-up” of matches. This amendment would not violate the anti-cutback rule;23 until an employer actually makes a contribution to a profit sharing plan, it is not part of any participant’s accrued benefit and thus is not protected from cutback.24 The amendment also does not violate ERISA, §404(a)(1)(D), because the plan’s matching formula is a plan design issue that does not fall within the scope of ERISA’s fiduciary standards.25

Summary: The Infinite Variety of Defects

The ways in which the operation of a plan can differ from its provisions are not infinite, but they do vary widely, as do the proper approaches to correction.

Often, not surprisingly, straying from the terms of the plan leads to violation of clear qualification requirements. For example, neglecting to obtain spousal consent to nonannuity distributions in a plan subject to the joint-and-survivor annuity rules26 or making mandatory distributions of account balances in excess of $5,00027 is disqualifying. These cases must be handled through VCR or one of the related IRS correction programs.

In other instances, a prohibited transaction or fiduciary violation may exist, without any impact on plan qualification. The VCR program is not only unnecessary in these cases but is not even efficacious. The IRS’s approval of a proposed correction cannot bind either plan participants or the Department of Labor.

Many deviations are really recordkeeping, rather than operational, errors. If the recordkeeper allocates employer contributions in a manner different from that called for in the plan’s allocation formula, the “true” account balances are those produced by the formula, not those erroneously recorded on the plan’s books. Correction requires restating the balances to their proper values and then dealing with the corollary problems created by past distributions of the wrong amounts to terminated participants.

Sometimes qualification problems arise not from the failure to follow plan terms but from the steps needed to correct the failure. Self-correction is thus impossible without the use of the VCR program.

Finally, there are defects that call for no correction at all, because they are not disqualifying, do not have an adverse tax impact on participants, do not constitute prohibited transactions and are unlikely to lead to claims against plan fiduciaries. Though it goes against the grain of many practitioners, who feel in their bones that breaking rules ought to lead to condign punishment, there are times when doing nothing is the most beneficial course of action for all parties concerned.

1.  Revenue Ruling 55-297, 1955-1 C.B. 393.
2.  Revenue Ruling 70-315, 1970-1 C.B. 91.
3.  PLR 6307308290A.
4.  Revenue Ruling 73-147, 1973-1 C.B. 191.
5.  Revenue Ruling 74-468, 1974-2 C.B. 140.
6.  ERISA, §402(a)(1).
7.  ERISA, §404(a)(1)(D).
8.  The “written instrument” requirement did have a counterpart in the pre-ERISA income tax regulations, which defined a pension, profit sharing or stock bonus plan as inter alia “a definite written program and arrangement”. Treas. regs., §1.401-1(a)(2). It obviously would be difficult to apply the qualification rules to an indefinite, unwritten plan.
9.  For a more detailed discussion of the relationship between fiduciary and qualification standards, see Veal & Mackiewicz, Pension Plan Terminations at 14-20 (BNA Books, 1999).
10.  PLR 8752001.
11.  Revenue Procedure 94-62, 1994-2 C.B. 778.
12.  IRS Employee Plans Division, “The Remedial Amendment Period under Internal Revenue Code (‘Code’) section 401(b)” (December 14, 1994), reprinted in 4 RIA Pension & Profit Sharing 2nd, ¶64,320.
13.  Treas. regs., §1.401-1(b)(1)(i). Profit sharing and stock bonus plans must have “a definite predetermined formula for allocating the contributions made to the plan and for distributing the funds accumulated under the plan”, Treas. regs., §1.401-1(b)(1)(ii) and (iii), a requirement even less amenable to interpretation as a directive to observe the letter of all plan provisions.
14.  ERISA, §408(c)(1).
15.  ERISA, §409(a).
16.  ERISA, §406(a)(1)(D); I.R.C., §4975(c)(1)(D).
17.  ERISA, §512(I); I.R.C., §4975. For specific discussion of this change from prior law and why disqualification was rejected as a sanction, see H.R. Rep. No. 93-1280 at 322 (1974).
18.  I.R.C., §401(a)(13).
19.  ERISA, §408(b)(1)(C); I.R.C., §4975(d)(1)(C).
20.  ERISA, §502(i). Civil penalties for prohibited transactions appear to be levied only rarely, if at all. The Department of Labor often, however, construes a correction made at its prompting as a “settlement” of a fiduciary violation subject to a 20 percent penalty under ERISA, §502(l).
21.  Treas. regs., §1.401(k)-1(a)(2)(i).
22.  Treas. regs., §1.401(m)-1(b)(4)(ii)(A).
23.  ERISA, §204(g); I.R.C., §411(d)(6).
24.  I.R.C., §411(a)(7)(A)(ii).
25.  There is a case reaching the contrary conclusion, Smith v. National Credit Union Administration Board, 36 F.3d 1077, 18 E.B.C. 2323 (11th Cir., 1994), but its reasoning is on its face unworthy of credence.
26.  I.R.C., §401(a)(11) and §417.
27.  I.R.C., §411(a)(11).

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