Advisory Opinions

Requests for interpretations and other rulings under Title 1 of ERISA are handled by the Office of Regulations and Interpretations under the provisions established by ERISA Procedure 76-1.  The office answers inquiries from individuals and organizations in the form of advisory opinions, which apply the law to a specific set of facts, or information letters, which merely call attention to well established principles or interpretations.

2009 Advisory Opinions

2009-04A
12/04/09
ERISA § 3(21)(B) & 401(b)(1)

Marcia Wagner
The Wagner Law Group

Whether target-date or lifecycle mutual funds constitute "plan assets" of investing employee benefit plans or whether the investment advisers to such mutual funds are fiduciaries to the investing plans under ERISA.

2009-03A
10/27/09
IRC § 4975(c)(1)

Timothy Berry

Whether an IRA owner's granting to a broker of a security interest in assets held in his non-IRA accounts to cover potential indebtedness of an IRA established with the broker would result in prohibited transactions under Code section 4975.

2009-02A
09/28/09
IRC § 4975(c)(1)

Seymour Goldberg
Goldberg & Goldberg, PC

Whether an estate plan would give rise to a prohibited transaction under Code section 4975 if it is designed to use permissible minimum distributions from an IRA to fund a Trust, which is not a plan subject to fiduciary obligations under Title I of ERISA or the Code but is a disqualified person with respect to the IRA under Code section 4975, and where the beneficiary of the Trust is the IRA owner's grandson and Trustee of the Trust is the IRA owner's son who is entitled under applicable state law to receive statutory trustee commissions from the Trust.

2009-01A
01/13/09
ERISA § 408(b)(4) & 406(b)(3)

Donald Myers
Reed Smith LLP

Whether a trust company's use of deposit accounts of its banking affiliate for investment of cash of certain bank collective investment funds would violate section 406(b)(3) of ERISA.

2008 Advisory Opinions

2008-08A
12/19/08
ERISA § 104

Bruce McNeil
Leonard, Street and Deinard

Whether, in the case of a plan covering a "controlled group of corporations" or a "group of trades or businesses under common control" within the meaning of section 414(b) and (c) of the Internal Revenue Code (Code), filing a single registration statement for the plan will satisfy the alternative method of compliance in 29 C.F.R. § 2520.104-23 for the participating employers.

2008-07A
09/26/08
ERISA § 3(40) and
514(b)(6)(A)

Tim Casey
Bend Chamber of Commerce

Whether a proposed arrangement offered by the Chamber of Commerce in Bend, Oregon would be a multiple employer welfare arrangement (MEWA) within the meaning of section 3(40) of ERISA, and whether such an arrangement would itself be an employee welfare benefit plan within the meaning of section 3(1) of ERISA.

2008-06A
07/10/08
ERISA § 403(d)(2), 406

Joanne Moak
Wine and Spirits Wholesalers of America, Inc.

Whether, after all outstanding claims for benefits have been satisfied, the Trust may be amended to permit its surplus assets to be transferred, in accordance with the terms of the trust document, to a charitable organization that is not a party in interest.

2008-05A
06/27/08
ERISA § 404(a)

David Chavern
US Chamber of Commerce

This letter addresses the prudence and exclusive purpose requirements of ERISA as they relate to the expenditure of plan assets on organizing and collective bargaining-related activities.

2008-04A
04/10/08
ERISA § 404(b)

Michael Lawson
Skadden, Arps, Slate, Meagher & Flom LLP

Whether proposed arrangements by a U.S. bank for maintaining the indicia of ownership of "plan assets" held by foreign pooled investment funds would be in compliance with the requirements of ERISA section 404(b).

2008-03A
03/21/08
ERISA § 514
and 609(b)(3)

Ginni Hain
Centers for Medicare & Medicaid Services

Whether ERISA would preempt an action by a State Medicaid Agency to recover Medicaid benefit payments made on behalf of individuals who are also participants in ERISA-covered private health insurance plans that require prior authorization for covered health care items or services.

2008-02A
02/08/08
ERISA § 514(a)

Eugene Scalia
Gibson, Dunn & Crutcher LLP

Whether section 514(a) of ERISA preempts a Kentucky state law that requires an employer to obtain written consent before withholding amounts from an employee's wages for contribution to an ERISA-covered group health or other welfare benefit plan.

2008-01A
01/18/08

Stephen Saxon
Richard Matta
Groom Law Group

Whether the definition of Affiliate in the Underwriter Exemptions includes an entity that is an affiliate of an Affiliate of a member of the Restricted Group as those terms are defined in the Underwriter Exemptions.

2007 Advisory Opinions

2007-07A
12/21/2007
ERISA § 404(a)(1)
29 CFR 2509.94-2

Thomas Donohue
US Chamber of Commerce

This letter addresses the impermissible use of pension plan assets to further public policy and political activities through proxy resolutions that have no connection to enhancing the value of a plan’s investment in a company, further clarifying the application of Interpretive Bulletin 94-2 (29 CFR § 2509.94-2).

2007-06A
08/16/2007
ERISA § 3(40)
and 514(b)(6)(A)

Edward Wender
Venable LLP

Whether the Custom Rail Employer Welfare Trust Fund is an "employee welfare benefit plan" within the meaning of section 3(1) of ERISA, and whether it is a "multiple employer welfare arrangement" (MEWA), within the meaning of section 3(40), that is "fully insured" within the meaning of section 514(b)(6)(A) of ERISA.

2007-05A
08/15/2007
ERISA § 3(40)
and 514(b)(6)

Catherine Cortez Masto
Nevada Dept of Justice

Whether an employee benefit arrangement sponsored by Payroll Solutions Group Limited constitutes a "multiple employer welfare arrangement" within the meaning of section 3(40) of ERISA subject to regulation under the insurance laws of the State of Nevada pursuant to section 514(b)(6) of ERISA.

2007-04A
07/18/2007
ERISA § 406

J. Jerome Coogan
Coogan, Smith, McGahan, Lorincz, Jacobi & Shanley, LLP

Whether reimbursements of certain monies by a training plan to local unions that are parties in interest to such plan would be a prohibited transaction under ERISA section 406.

2007-03A
06/08/2007
ERISA § 408(b)(8)

John Cleary
Goodwin Procter LLC

Whether a U.S. branch of a foreign bank qualifies as a "bank or trust company" for purposes of exemptions provided under ERISA section 408(b)(8) and PTE 91-38.

2007-02A
02/26/2007
PTE 84-14

Melanie Franco Nussdorf
Steptoe & Johnson LLP

Whether the 10% test applicable to pooled investment vehicles under the QPAM class exemption (84-14) does not require consideration of any underlying plan investors in a pooled fund investing in another pooled fund.

2007-01A
01/22/2007
PTE 84-14

Melanie Franco Nussdorf
Steptoe & Johnson LLP

Whether transactions between a broker-dealer and a separate account managed by a QPAM under a 401(k) plan fail to satisfy section I(a) of PTE 84-14 where plan participants investing in such account receive investment allocation advice from a subsidiary of the broker-dealer.

2006 Advisory Opinions

2006-09A
12/19/2006
IRC § 4975(c)(1)(A)
and (B)

Edward Appelt

This advisory opinion concludes that a self-directed IRA‘s investment in notes of a corporation, a majority of whose stock is owned by the son-in-law of the IRA owner, would be a prohibited transaction under the Internal Revenue Code.

2006-08A
10/03/2006
ERISA § 404(a)

Donald Myers
Reed Smith LLP

Whether a fiduciary of a defined benefit plan may, consistent with the requirements of section 404 of ERISA, consider the liability obligations of the plan and the risks associated with such liability obligations in determining a prudent investment strategy for the plan.

2006-07A
08/15/2006
PTE 91-38

Stephen Saxon
Groom Law Group

Whether Chevy Chase Trust Company (CCTC) would be considered a bank, and whether certain collective investment funds for which CCTC acts as trustee would be considered to be maintained by a bank for purposes of PTE 91-38.

2006-06A
07/26/2006
PTE 77-3

F. Jefferson Bragdon
Williams Coulson

Whether the prohibition on the payment of sales commissions in PTE 77-3 applies to the payment of 12b-1 Fees by a proprietary mutual fund to an unrelated broker.

2006-05A
07/26/2006
ERISA § 3(32)

Alice League
Federal Reserve Employee Benefits System

Whether certain employee benefit programs of the Federal Reserve System are excluded from the requirements of Title I under section 4(b)(1) of ERISA as "governmental plan[s]" within the meaning of section 3(32) of ERISA.

2006-04A
04/27/2006
ERISA § 403(c)
and 406(b)

Charles Blitman
Blitman & King LLP

Regarding the application of ERISA to trustees' amendment of a plan to permit a retroactive contribution to the plan fund on behalf of an owner of a corporation that contributes to the fund as an employer. Whether such owner who performed work for his own corporation that would otherwise be covered by a collective bargaining agreement if he were not a "supervisor" under federal labor law is an "employee," within the meaning of section 3(6) of ERISA, for purposes of participation under the plan.

2006-03A
02/28/2006
PTE 92-6

Seymour Goldberg
Goldberg & Goldberg, PC

PTE 92-6 covers the sale, by an employee benefit plan, of a second to die life-insurance policy to two participants who are husband and wife and who are the insured under the policy. The letter also clarifies that the conditions of PTE 92-6 remain the same despite the amendments to the Internal Revenue Code regarding the tax treatment of certain life-insurance policies distributed from employee benefit plans.

2006-02A
01/23/2006
ERISA § 403(d)(2) and 406(b)(2)

James McLeod
NOMDA Trust

Whether the transfer of residual assets from a terminated MEWA that is also a plan to a VEBA that provides health and life insurance benefits to the employees of the entity that sponsored both the MEWA and the VEBA constitutes an improper inurement of plan assets for the benefit of an employer in violation of section 403, or a prohibited transaction under section 406.

2006-01A
01/06/2006
ERISA § 29 CFR 2509.75-2

Debra Buchanan
Guidant Legal Group, PLLC

Whether a lease by a company (LLC) 49% owned by an IRA to a company (S) which is a disqualified person with respect to that IRA is a prohibited transaction where the manager of the LLC is an officer of S. Whether 29 CFR 2509.75-2 makes the transaction an indirect prohibited transaction and whether it makes the transaction a violation of the Internal Revenue Code's exclusive benefit rule.

2005 Advisory Opinions

2005-25A
12/30/2005
ERISA § 3(5)

Andrew Ky Haynes
TICUA Benefit Consortium Health Plan

Whether the Tennessee Independent Colleges and Universities Association Benefit Consortium, Inc. Health Plan is an "employee welfare benefit plan" within the meaning of section 3(1) of ERISA that is maintained by a "group or association of employers" within the meaning of section 3(5) of ERISA.

2005-24A
12/30/2005
ERISA § 3(5)

Rodney Opsal
WAICU Benefit Consortium Health Plan

Whether the Wisconsin Association of Independent Colleges and Universities Association Benefits Consortium, Inc. Health Plan is an "employee welfare benefit plan" within the meaning of section 3(1) of ERISA that is maintained by a "group or association of employers" within the meaning of section 3(5) of ERISA.

2005-23A
12/07/2005
ERISA § 3(21)

Michael Stapley
Deseret Mutual Benefit Administrators

Whether a financial consultant hired by a participant in a 404(c) plan to provide investment advice or management is a fiduciary and provides investment advice within the meaning of section 3(21) when he advises the participant to take a withdrawal in order to invest the assets in an investment not available under the plan, and whether the advisor engages in a prohibited transaction if the recommended investment pays an additional fee to the advisor.

2005-22A
12/07/2005
ERISA § 3(17)

Andree St. Martin
Stephen Saxon
Hartford Life Insurance Co.

Whether each division of a separate account would itself be a "separate account" as defined in section 3(17) of ERISA where the income, gains and losses attributable to the assets of each division, whether or not realized, are credited to or charged against the assets invested in that division and not to the assets of any other division or to the insurer’s general account and without regard to other income, gains or losses of other divisions or the insurer’s general account.

2005-21A
12/21/2005
ERISA § 3(32)

Linda Knudsen
Utah Transit Authority Hourly Employees Retirement Plan

Whether the status of the Utah Transit Authority Hourly Employees Retirement Plan as a "governmental plan" within the meaning of section 3(32) of ERISA would be adversely affected if it were amended to allow two transit authority employees to continue to participate while on leave of absence to perform duties as full-time elected officials of the labor union representing transit authority employees who participate in the Plan.

2005-20A
08/31/2005
ERISA § 3(40)
and 514 (b)(6)(D)

Alden Bianchi
Mintz Levin Cohn Ferris Glovsky & Popeo PC
Dunkin’ Donuts Franchisee & Distribution Ctr Health Plan

Whether the Dunkin' Donuts Franchisee & Distribution Center Health Plan is a MEWA as defined in ERISA section 3(40) and whether it is "fully insured" within the meaning of ERISA section 514(b)(6)(d).

2005-19A
08/26/2005
ERISA § 29 CFR 2510.3-101(f)

Andree St. Martin
Stephen Saxon
Groom Law Group

Regarding the application of the significant participation test in 29 CFR § 2510.3-101(f) to an investment in an entity by a wholly owned subsidiary of an insurer's general account which holds plan assets for purposes of determining whether that entity holds plan assets.

2005-18A
08/01/2005
ERISA § 514
and 3(40)

Charles Brown
Office of the Ins Commissioner
State of Washington

Whether section 514(a) of ERISA preempts amendments to the Washington State Insurance Code that provide for a premium tax and high-risk pool assessment to be paid by self-funded MEWAs.

2005-17A
06/22/2005
ERISA § 3(32)

Aaron Krakow
Krakow & Souris
Massachusetts Public Employees Fund

Whether participation by five employees of the Massachusetts Public Employees Fund would adversely affect the status of the Fund as a governmental plan under section3(32) of ERISA.

2005-16A
06/10/2005
ERISA § 503

Dr. Gary Conant
Conant Chiropractic Clinic

Regarding the claims procedure regulation at 29 CFR 2560.503-1(h)(3) which requires the plan's named fiduciary deciding an appeal of a group health claim denied based on a medical judgment to consult with a physician or other health care professional that is licensed, accredited or certified to perform specified health services consistent with State law.

2005-15A
06/10/2005
ERISA § 3(1)

Jared Kawashima
Ning, Lilly & Jones
Painting Industry of Hawaii Labor Mgt Coop Trust Fund

Whether the Painting Industry of Hawaii Labor Management Cooperation Trust Fund is an "employee welfare benefit plan" within the meaning of section 3(1) of Title I of ERISA.

2005-14A
06/10/2005
ERISA § 3(1)

Jared Kawashima
Ning, Lilly & Jones
Hawaii Tapers Market Recovery Trust Fund

Whether the Hawaii Tapers Market Recovery Trust is an "employee welfare benefit plan" within the meaning of section 3(1) of Title I of ERISA.

2005-13A
05/31/2005
ERISA § 514(a)
and 514(d)

Richard Ervin
Washington Dept of Labor and Industries
Northwest Airlines Sick & Occupational Injury Leave Plan for Employees

Whether section 514(a) of ERISA would preempt the application of certain leave substitution provisions in the Washington State Family Care Act to the Northwest Airlines, Inc. Sick and Occupational Injury Leave Plan for Employees.

2005-12A
05/16/2005
ERISA § 3(1)

Jacob Barsottini
General Manager & COO, Employshare
Wings For Christ, Inc.

Whether a program of benefits offered by Wings for Christ would be an "employee welfare benefit plan" within the meaning of section 3(1) of ERISA and whether such program would be subject to state insurance regulation as a MEWA within the meaning of ERISA section 3(40).

2005-11A
05/11/2005
ERISA § 406(b)
and 408(b)(2)

Chris Hastings
Financial Network
MidMinnesota Federal Credit Union 401(k) Plan

Whether a registered representative of a broker-dealer who provides brokerage services to the customers of a credit union may also provide brokerage services to the credit union's participant-directed 401(k) plan, provided that the representative does not provide investment advisory or management services to the plan.

2005-10A
05/11/2005
Code § 4975(c)(1)(E) and (F)

Sandra Faulkner
Baker and Hostetler LLP
Kristin Ives
Stradley Ronon Stevens Young LLP
COUNTRY Trust Bank

When fees received by a bank or an affiliate, in connection with investments in certain mutual funds by IRAs or other qualified retirement plans, are offset against management fees charged by the bank to the plans, would the receipt and offset avoid prohibited transactions under Code section 4975(c)(1)(E) or (F)?

2005-09A
05/11/2005
ERISA § 408(b)(8)

Donald Myers
Reed Smith LLP
Vanguard Fiduciary Trust Co

Whether in-kind investments in a bank collective investment fund are covered by ERISA section 408(b)(8), if the stated conditions are met.

2005-08A
05/11/2005
ERISA § 29 CFR 2510.101

Joel Mintzer
Robins Kaplan Miller Ciresi LLP
Jon Breyfogle
Groom Law Group
BC/BS of Minnesota

Whether certain distributions from insurance companies to their policyholders are "plan assets."

2005-07A
05/03/2005
ERISA § 3(32)

Neal Childers
Georgia Department of Community Health
Georgia State Health Benefit Plan

Whether the status of the Georgia State Health Benefit Plan as a "governmental plan" within the meaning of section 3(32) of ERISA would be adversely affected if it were extended to cover the employees of certain federally qualified health centers in the State of Georgia.

2005-06A
04/11/2005
ERISA § 503

Larry Brand
Mahoney & Associates

Whether accidental death and dismemberment benefits are subject to the requirements in 29 C.F.R. § 2560.503-1 for "disability benefits" or whether they are "other" welfare benefits subject to the general claims procedure provisions of 29 C.F.R. § 2560.503-1.

2005-05A
03/23/2005
ERISA § 514(b)(8)
and 609(b)

Patrick O'Connell
Chief, Civil Medicaid Fraud
Office of the Attorney General of Texas

Regarding the provisions in ERISA § 514(b)(8) and ERISA § 609(b) on State causes of action to obtain reimbursement for their Medicaid programs from ERISA plans.

2005-04A
03/25/2005
ERISA § 406(b)

Norma Sharara
Buchanan Ingersoll, PC

Whether a plan may invest in a mutual fund when one of the plan's trustees is the president, CEO, and significant shareholder of the mutual fund's investment advisor.

2005-03A
03/23/2005
ERISA § 29 CFR 2510.3-101
and 408(b)(2)

Frank Sabatino
Stevens & Lee
Teamsters Pension Trust Fund of Philadelphia & Vicinity & Teamsters Health and Welfare Fund of Philadelphia & Vicinity

Application of the definition of a "related group of plans" for purposes of the wholly-owned exception of the plan assets regulation at 29 CFR 2510.3-101.

2005-02A
02/24/2005
ERISA § 103

Michael Conger
Robert Browning
Polsinelli Shalton Welte Suelthaus PC
Fortis Benefits Ins Co

Regarding the Schedule A (Form 5500) requirements for reporting fees and commissions paid to brokers, agents and other persons directly or indirectly attributable to policies or contracts placed or retained with or by an ERISA-covered employee benefit plan.

2005-01A
02/14/2005
ERISA § 3(32)

Neal Childers
Georgia Dept of Community Health
Georgia State Health Benefit Plan

Whether Georgia's Agricultural Commodities Commissions are "agencies" or "instrumentalities" of the State of Georgia so that inclusion of their employees would not adversely affect the status of Georgia's State Health Benefit Plan as a "governmental plan" within the meaning of section 3(32) of ERISA.

2004 Advisory Opinions

2004-11A
12/30/2004
ERISA § 3(33)

Lauren Licastro
Morgan, Lewis & Bockius, LLP
Pittsburgh Mercy Health System
Mercy Life Center Corp

Whether the Pittsburgh Mercy Health System Cash Accumulation Plan, the Pittsburgh Mercy Health System 401(k) Savings Plan, and the Mercy Life Center Corporation Pension Plan are "church plans" within the meaning of section 3(33) of ERISA, that are excluded from Title I coverage by ERISA section 4(b)(2).

2004-10A
12/30/2004
ERISA § 3(1)

Richard Brickson
May Department Stores Co.

Whether the May Department Store Company’s vacation pay program is an "employee welfare benefit Plan "within the meaning of section 3(1) of ERISA.

2004-09A
12/22/2004
Code § 4975(c)

Thomas Schendt
Alston & Bird LLP

Concerning the application of the prohibited transaction provisions under section 4975(c) of the IRC, to certain contributions to health savings accounts.

2004-08A
07/02/2004
ERISA § 3(1)

Barry Frederick
Wiggins Childs Quinn & Pantazis
Denny's Inc. Vacation Pay Plan

Whether the Denny's, Inc. Vacation Pay Plan is an "employee welfare benefit plan" within the meaning of section 3(1) of ERISA.

2004-07A
07/01/2004
ERISA § 412

William Mrozowski
First Commonwealth Trust Company

Non-depository, state chartered trust company that is a wholly-owned subsidiary of a bank holding company and is subject to regular examination and supervision by the Federal Reserve System, is exempt from certain bonding requirements in section 412 of ERISA.

2004-06A
06/21/2004
ERISA § 3(1)

Lisa Belenky
Lewis & Feinberg, PC
Service Employees International Union Local 616

Whether a program established by SEIU Local 616 to provide a small monetary payment to beneficiaries of deceased members is a "remembrance fund" within the meaning of 29 C.F.R. § 2510.3-1(g), and, therefore, exempt from coverage under Title I of ERISA.

2004-05A
05/24/2004
ERISA § 406(a)(1),(D)
and 406(b)(1),(2)

William Charyk
Arent Fox Kintner Plotkin & Kahn, PLLC
Liquidnet System

Whether the execution of a securities transaction between a plan and party in interest through an alternative trading system constitutes a prohibited transaction under ERISA.

2004-04A
05/20/2004
ERISA § 407(d)(3)
and 407(d)(9)

Steven Sacher
Kilpatrick Stockton LLP
Butler Mfg. Company

Whether an amendment of defined benefit plan reducing future benefit accruals will affect the grandfathered status under OBRA '87 of a floor offset arrangement of which the defined benefit plan is a part with a stock bonus plan.

2004-03A
04/30/2004
ERISA § 3(1)

David Thompson
International Brotherhood of Electrical Workers Local No. 150 Holiday and Vacation Fund

Whether the International Brotherhood of Electrical Workers Local No. 150 Holiday and Vacation Fund is an "employee benefit plan" within the meaning of section 3(3) of ERISA.

2004-02A
01/17/2004
ERISA § 206(d)(3)

Terry-Lynne Lastovich
Dorsey & Whitney LLP
Northwest Airlines, Inc. Retirement Plan for Pilot Employees

Whether a domestic relations order that changes a prior assignment of benefits to an alternate payee to reduce the amount assigned to the alternate payee may be a qualified domestic relations order within the meaning of section 206(d)(3) of ERISA.

2004-01A
01/27/2004
ERISA § 3(32)

Albert Goldman
Angoff, Goldman, Manning, Wanger & Hynes, PC
Boston Teachers Union Health & Welfare Fund, Prepaid Legal Services Fund, Paraprofessional Health & Welfare Fund.

Whether the Health Fund, Legal Fund, and Paraprofessional Fund (collectively, Funds), are "governmental plan[s]," as defined in ERISA § 3(32), and, therefore, excluded from Title I coverage by § 4(b)(1) of ERISA.

2003 Advisory Opinions

2003-18A
12/23/2003
ERISA § 3(32)

Charles Spalding
Gilbert, Harrell, Gilbert, Sumerford & Martin
Glynn-Brunswick Memorial Hospital Retirement Plan

Whether the Glynn-Brunswick Memorial Hospital Retirement Plan is a "governmental plan" within the meaning of ERISA section 3(32) that is excepted from coverage under Title I by section 4(b)(1) of ERISA.

2003-17A
12/12/2003
ERISA § 3(5)

Ralph Hawkins
Davis Wright Tremaine LLP
Hanford Employee Welfare Trust

Whether HEWT is a single employee welfare benefit plan maintained by a "group or association of employers" within the meaning of section 3(5) of ERISA.

2003-16A
11/21/2003
ERISA § 3(32)

Stephanie Gracia
Hallett & Perrin, PC
Lower Colorado River Authority 401(k) Plan
Lower Colorado River Authority Retirement Plan

Whether the status of the LCRA Plans as "governmental plan(s)" within the meaning of section 3(32) of ERISA would be adversely affected if they were extended to cover the employees of GenTex Power Corporation.

2003-15A
11/17/2003
ERISA § 3(14)(G)
and 406(a)

William Schmidt
Kirkpatrick & Lockhart LLP
Jacob Friedman
Proskauer Rose LLP
Verizon Investment Mgt. Corp

Whether a limited partnership in which employee benefit plans invest would be deemed a party in interest with respect to the plans under section 3(14)(G) of ERISA where the plan trustee would hold more than fifty percent of the interests in the limited partnership on behalf of the plans.

2003-14A
10/08/2003
ERISA § 407(d)(5)
and 407(f)(1)

Steven Sacher
Kilpatrick Stockton LLP
General Motors Corp.
Hughes Electronics Corp.

Whether certain stock is a qualifying employer security in connection with a proposed exchange between GM and several employee benefit plans that it sponsors.  The exchange is part of a broader transaction, whereby GM plans to split-off its subsidiary, Hughes Electronics Corporation.

2003-13A
09/30/2003
ERISA § 3(5)
and 3(40)

Robert Sacks
Kane Kessler, PC
Association of Independent Commercial Producers

Whether the AICP Health Benefits Fund is an employee welfare benefit plan established and maintained by an employer group or association within the meaning of section 3(5) of ERISA. Also whether the Fund is a "fully insured" multiple employer welfare arrangement within the meaning of ERISA section 3(40) and section 514(b)(6)(A).

2003-12A
09/30/2003
ERISA § 3(32)

Albert Harberson
Council of State Governments
Kentucky Employees Retirement System

Whether employees of The Council of State Governments may participate in the Kentucky Employees Retirement System without adversely affecting the status of KERS as a "governmental plan" within the meaning of section 3(32) of ERISA.

2003-11A
09/08/2003
ERISA § 404(c)

Stephen Saxon
Groom Law Group, Chartered
Principal Financial Group

Whether delivery of a Profile (as described in Rule 498 under the Securities Act of 1933) would satisfy the prospectus delivery requirements under ERISA section 404(c) regulations.

2003-10A
08/12/2003
ERISA § 407(a)(2)

Charles Smith
Kirkpatrick & Lockhart LLP
Crucible Materials Corporation Master Trust

Whether the reallocation of employer securities from the account of one plan participating in a master trust to the accounts of other plans participating in the master trust in exchange for interests of those plans in other assets of the same value held in the master trust would constitute an acquisition of employer securities for purposes of section 407(a) of ERISA.

2003-09A
06/25/2003
ERISA § 406(b)(1)
and 406(b)(3)

Gary Howell
Gardner, Carton & Douglas
ABN AMRO Trust Services Company

Whether a trust company’s receipt of 12b-1 and subtransfer fees from mutual funds, the investment advisers of which are affiliates of the trust company, for services in connection with investment by employee benefit plans in the mutual funds, would violate ERISA when the decision to invest in such funds is made by an employee benefit plan fiduciary or participant who is independent of the trust company and its affiliates.

2003-08A
06/26/2003
ERISA § 403(d) to 403(d)(2)

Stephen Kern
McNees Wallace & Nurick LLC
Pennsylvania Automotive Association Insurance Trust

Request for guidance as to the disposition of surplus assets on the termination of the Trust. Specifically, whether, after all outstanding claims for benefits have been satisfied and all surplus attributable to participant contributions has been used for the provision of benefits, the remaining surplus assets may be transferred to a charitable foundation that is not a party in interest in accordance with the terms of the trust document.

2003-07A
06/19/2003
PTE 84-14

Melanie Nussdorf
Steptoe & Johnson LLP

Request for guidance concerning section V(h) of PTE 84-14 which permits certain transactions between a party in interest with respect to an employee benefit plan and an investment fund in which the plan has an interest and which is managed by a QPAM, provided that the other conditions of the exemption are satisfied.

2003-06A
04/25/2003
ERISA § 3(1)

Donald Siegel
Elizabeth Sloane
Segal, Roitman & Coleman
Labor Management Construction Safety Alliance, Inc.

Regarding the applicability of Title I of ERISA. Specifically, whether the Labor Management Construction Safety Alliance, Inc. (LMCSA) is an "employee welfare benefit plan" within the meaning of section 3(1) of Title I of ERISA.

2003-05A
04/10/2003

Alden Bianchi
Mirick O’Connell DeMallie & Lougee, LLP
Retirement Plan for Employees of Fred C. Church, Inc.

Whether under ERISA Church is entitled to retain the demutualization award paid to Church by Principal for a group annuity contract that was purchased in connection with the termination of a retirement plan that had been established and maintained by Church.

2003-04A
03/26/2003
ERISA § 403, 404, 406

Robert Gallagher
Groom Law Group
Prudential Insurance Company of America

Regarding the application of ERISA to an employer’s amendment of its plan to eliminate life insurance benefits for certain retirees and the amendment of its defined benefit pension plan to add similar benefits for those retirees, and the implementation of those amendments. Specifically whether the amendments, along with their implementation, would not violate the anti-inurement, exclusive benefit and prohibited transaction provisions under ERISA.

2003-03A
02/13/2003
ERISA § 3(3), 3(21), 404(a)(1), 514(a)

John Claro
Rainey, Goodwin, Mee & Martin LLP
American Heartland Health Administrators, Inc.

Whether, and under what circumstances, American Heartland Health Administrators, Inc. (and a selected "reinsurance company") may be subject to the provisions of ERISA, and whether compliance with a cease and desist order would cause AHHA to violate its fiduciary duty to act in accordance with the documents and instruments governing the plans.

2003-02A
02/10/2003
ERISA § 408(b)(2) and 408(b)(6)

Lisa Bleier
Senior Counsel
American Bankers Association

Regarding the application of ERISA to the provision of overdraft protection services, including any inherent extension of credit incident to such services, by banks, whether or not the bank exercises investment discretion over plan assets.

2003-01A
01/24/2003
ERISA § 4(c)

Alan Pauw
Reed, Weitkamp, Schell & Vice
Kentucky Public Employees’ 401(k) Deferred Comp Plan

Whether requirements listed by ERISA § 4(c) for "deemed IRAs" apply to those added to the Plan, assuming it is a governmental plan excluded from Title I by ERISA § 4(b)(1), and whether adding "deemed IRAs" adversely affects Plan exclusion.

2002 Advisory Opinions

2002-14A
12/18/2002
29 CFR 2509.95-1

Leonard Davis
Sharon W. Vaino
Metropolitan Life Ins. Co.
Tax Dept

Guidance concerning the selection of annuity providers in connection with distributions from defined contribution plans. Specifically, the application of specific requirements of Interpretive Bulletin 95-1.

2002-13A
12/06/2002
ERISA § 3(2)

Jane Francis
Holland & Hart LLP
Kaiser-Hill Employee Incentive Compensation Plans

Whether the Kaiser-Hill Plans are "pension plans" within the meaning of section 3(2)(A) of ERISA, and, if the Plans should be considered pension plans, whether they are so-called "top hat" plans under ERISA sections 201(2), 301(a)(3), and 401(a)(1).

2002-12A
12/04/2002
PTE 92-5

Seymour Goldberg
Goldberg & Goldberg, PC
Your office maintained tax-qualified profit sharing plan

Concerning the applicability of PTE 92-5, (57 FR 5019, February 11, 1992), to a transfer of a life insurance contract by a participant to his or her employee benefit plan.

2002-11A
10/17/2002
ERISA § 3(32)

Neil Lipton
Spivak Lipton Watanabe Spivak Moss
Communications Workers of America, Local 1180 Members' Annuity Fund

Whether the Communications Workers of America, Local 1180 Members' Annuity Fund remains a "governmental plan" if it extends eligibility to its trustees, who are Local 1180 officers, and accepts contributions for any trustee whom Local 1180 employs, since the Fund otherwise exclusively covers government employees of NYC and related public employers whose bargaining agreements require them to provide all contributions currently received by the Fund.

2002-10A
09/30/2002
ERISA § 3(32)

Ian Lanoff
Groom Law Group
University of California Retirement Plans

Whether two UC pension plans adversely affect exclusion from Title I of ERISA as "governmental plans" by awarding service credits and transferring account balances connected with about two years when UC San Francisco Medical Center transferred a group of employees, now reemployed by the Medical Center and again participating in UC plans, to employment with the Medical Center's now-terminated, private sector joint venture with Stanford University and to coverage by the joint venture's private sector pension plans.

2002-09A
09/06/2002
ERISA § 3(32)

Michael Scaraggi
Oransky, Scaraggi, Borg & Abbamonte, PC
Port Authority Police Benevolent Association, Inc.

Application of the "governmental plan" definition in section 3(32) of ERISA to the Port Authority PBA Welfare Fund for purposes of the coverage exclusion in section 4(b)(1) of ERISA.

2002-08A
08/20/2002
ERISA § 404(a)
and 408(b)(2)

Michael Crabtree
Central Pension Fund of the International Union of Operating Engineers and Participating Employers

Whether indemnification and limitation of liability provisions in a plan's service provider contract would violate the fiduciary provisions of ERISA.

2002-07A
07/25/2002
ERISA § 3(37)

Ronald Richman
Schulte, Roth & Zabel LLP,
Michael S. Melbinger
Winston & Strawn
Anchor Glass Container Corp; Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union; Glass Companies Multiemployer Pension Plan

Application of the substantial business purpose test in paragraph (c) of 29 CFR 2510.3-37, for purposes of the definition of a "multiemployer plan" in ERISA Sec. 3(37).

2002-06A
07/03/2002
ERISA § 404(a)

Larry Savell and Richard Maples, Trustees
Iron Workers Mid-South Pension Fund

Application of Sec. 404(a)(1) of ERISA where trustees of a Taft-Hartley multiemployer plan, as the sole parties authorized under the trust agreement to establish delinquent contribution procedures, did so, but where different delinquent contribution procedures were subsequently agreed to in a collective bargaining agreement that the trustees were not party to.

2002-05A
06/07/2002
PTE 77-4

Melanie Nussdorf
Steptoe & Johnson LLP

Whether the prohibition in PTE 77-4 (42 FR 18732, April 8, 1977) on sales commission payments would apply to commissions paid by a plan to an independent broker who executes the plan’s purchase or sale of shares of open-end investment companies registered under the Investment Company Act of 1940 through a securities exchange.

2002-04A
06/07/2002
ERISA § 408(e)

Wallace Starke
Troutman, Sanders, Mays & Valentine, LLP
National Bankshares, Inc. and National Bank of Blacksburg

Application of Sec. 408(e) of ERISA to certain transactions between a plan and various personal trusts and estates sharing a common trustee with the plan.

2002-03A
06/07/2002
ERISA § 206(d)

Alsee McDaniel
Mississippi Dept of Human Resources, Div of Child Support Enforcement

Application of Sec. 206(d) of ERISA with respect to the Mississippi Department of Human Services, Division of Child Support Enforcement.

2002-02A
05/17/2002
29 CFR 2510.3-102

Richard Steinburg Employee Benefit Plans Expert Panel, Dept. of Labor Liaison Task Force, AICPA

When participant loan repayments withheld from employee wages by an employer become plan assets subject to the prohibited transaction rules of section 406 of ERISA.

2002-01A
03/26/2002
ERISA § 401(b)

Melanie Nussdorf,
Steptoe & Johnson, and Howard M. Bergtraum
O’Sullivan, Graev & Karabell LLP
JPMG Global Investors, LP

Application of the "venture capital operating company" definition for purposes of the plan assets regulation at 29 CFR 2510.3-101.

2001 Advisory Opinions

2001-10A
12/14/2001
ERISA § 408(b)(2)
and 408(b)(6)

James Winn
Smith & Downey
Laurel Trust Company

Application of ERISA Secs. 408(b)(2) and 408(b)(6) to the provision of trustee services by Laurel Trust Company to two defined benefit plans which it sponsors and the payment by the plans of trustee fees in connection with those services.

2001-09A
12/14/2001
ERISA § 406(b)

William Schmidt
Eric Berger,
Kirkpatrick & Lockhart, LLP
SunAmerica Retirement Markets, Inc.

Application of ERISA Sec. 406(b) to certain transactions involving the provision of investment advice and discretionary services with regard to asset allocation for participants in participant-directed defined contribution plans.

2001-08A
08/07/2001
ERISA § 3(32)

Karen Tyner
Edwards, Ballard, Bishop, Sturm, Clark & Keim, PA
Spartanburg Water System & the Spartanburg Sanitary Sewer District

Application of the definition of "governmental plan" in Sec. 3(32) of ERISA.

2001-07A
07/02/2001
ERISA § 3(32)

Alan Cabral
Seyfarth, Shaw, Fairweather & Geraldson
Santa Clara County Transit District Amalgamated Transit Union Pension Plan

Application of the definition of "governmental plan" in Sec. 3(32) of ERISA.

2001-06A
06/01/2001
ERISA § 206(d)(3)

Lee Sapienza
New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement

Application of ERISA Sec. 206(d)(3) to income withholding notices issued by DSCE or a county child support enforcement agency operating under DSCE guidelines.

2001-05A
06/01/2001
ERISA § 403, 404, 406

Denise Clark
Feder & Semo, PC
Hotel & Restaurant Union Employees International Union Welfare Fund

Application of ERISA Secs. 403, 404 and 406 to an amendment to provide for the payment of certain federal tax obligations that arise as a result of the Fund’s provision of domestic partner coverage and an additional gross-up benefit to participants who elect domestic partner coverage.

2001-04A
03/22/2001
ERISA § 3(1), 3(5)

John Mossberg
Reinhard, Boerner, Van Deuren, Norris & Reiselbach, SC
Wisconsin Automobile & Truck Dealers Association, Inc. Insurance Trust

Whether the subject plan is maintained by a "group or association of employers" for purposes of the definition of "employer" in Sec. 3(5) of ERISA.

2001-03A
02/15/2001
ERISA § 3(2)

Theodore Groom
Groom Law Group
Prudential Insurance Company of America

Whether certain individual retirement annuities and tax deferred annuities that are otherwise exempt from coverage under Title I of ERISA by virtue of DOL regulations at 29 CFR 2510.3-2(d) and (f) would remain exempt if the employer as the contract holder (1) votes on the proposed plan of demutualization and (2) selects an allocation method for distributing the demutualization proceeds among the employees covered under the group contract. See also Information Letter to Theodore R. Groom dated 02/15/01.

2001-02A
02/15/2001
ERISA § 3(21)(A)

Theodore Groom
Groom Law Group
Prudential Insurance Company of America

Application of the definition of a "fiduciary" in certain circumstances relating to the allocation of demutualization proceeds. See also Information Letter to Theodore R. Groom dated 02/15/01.

2001-01A
01/18/2001
ERISA § 403-404

Carl Stoney, Jr.
Crosby, Heafey, Roach & May
Conservation & Liquidation Office, California Dept of Ins

The application of Title I of ERISA to the payment by plans of expenses relating to tax-qualification.  See hypothetical examples.

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