Advisory Opinion 1975-14

Dear :

This is in response to your letter dated February 25, 1975, concerning responsibilities of custodians or trustees of individual retirement accounts established under section 408(a) of the Internal Revenue Code of 1954 (Code) under Title I of the Employee Retirement Income Security Act of 1974 (ERISA).

In response to your inquiry as to whether any part of Title I of ERISA applies to such individual retirement accounts, a copy of regulations dealing with coverage under Title I of ERISA and reporting and disclosure under Part 1 of Title I is enclosed. Section 2510.3-2(d) of the regulations sets forth circumstances under which an individual retirement account established under section 408(a) of the Code will not be deemed a pension plan within the meaning of section 3(2) of ERISA, and therefore not covered under Title I of ERISA. Individual retirement accounts established under section 408(a) of the Code which do not meet the conditions set forth in section 2510.3-2, are pension plans and are covered under Title I; however, parts 2 and 3 of Title I, relating to participation, vesting and funding, explicitly exempt individual retirement accounts from their coverage. Individual retirement accounts are not specifically exempted from Part 1, relating to reporting and disclosure, and Part 4, relating to fiduciary responsibility. Therefore, if an individual retirement account is established or maintained for an individual by the individual’s employer or an employee organization of which the individual is a member, it would be covered by Parts 1 and 4 of Title I. Otherwise it would not be covered.

With respect to your second question, relating to section 408(a)(2) of the Code, the Department of the Treasury, and not the Department of Labor, has jurisdiction over that section. Since day to day administration of Title II of ERISA has been delegated to the Internal Revenue Service, I suggest that you write to the Internal Revenue Service.