For governmental and church plans, finding relevant authorities can be especially difficult, because they are often subject to different laws than other plans, and the authorities interpreting those laws may be very old. These links are not intended to be an all-inclusive list of relevant authority, but rather to provide links to some of the more important and hard to find authorities concerning governmental and church plans.
Cases
- Alban K. Barrus and Hattie C. Barrus, Plaintiffs v. United States of America, Defendant, 69-1 U.S. Tax Cas. (CCH) ¶ 9281 (ED NC 1969) (February 24, 1969)
Case discusses the circumstances under which a retiree who returns to work will nevertheless be treated as having had a bona fide retirement for retirement plan purposes.
- Sanzo v. NYSA-ILA Pension Trust Fund (December 29, 2005)
Post-death order cannot be a domestic relations order for plan purposes. A plan participant had entered into a qualified domestic relations order before his death, specifying that his wife was to receive benefits only when he began receiving benefits. He died before beginning to receive benefits. The court held that an attempted post-death amendment of the QDRO to provide that the spouse would receive a qualified preretirement survivor annuity was invalid.
- Smith v. Regional Transit Authority, E.D. La., No. 2:12-cv-03059-CJB-KWR, 5/10/13. (May 10, 2013)
Plan found to be “governmental” even though originally established by private entity
- Walker v. Board of Trustees, 76 F. Supp. 2d 1105 (D. Colo. 1999) (December 14, 1999)
Trustees of collectively bargained governmental retirement plan do not have governmental immunity. Even though a plan was a governmental plan within the meaning of the Internal Revenue Code, its trustees did not have sovereign immunity, because they were selected in part by the employer and in part by the union. Even those who were employees of the governmental employer did not have such immunity, because their duties as trustees were considered to be outside the scope of their duties as governmental employees.
Department of Labor Documents
- Advisory Opinion 94-02A (February 14, 1994)
Is the District of Columbia Bar Deferred Compensation Plan a 'governmental plan'? The opinion gives guidance on determining whether or not an employer that has mixed private and governmental functions should be considered governmental.
- Maldonado Letter (March 2, 1987)
Department of Labor letter that distinguished between fiduciary expenses (which could be paid from plan assets) and settlor expenses (which could not).
IRS Documents
- Announcement 82-146, 1982-47 I.R.B. 53 (November 22, 1982)
Exemption from Form 5500 requirements for governmental and church plans.
- Fields letter (August 20, 1991)
General information letter regarding definition of employer for governmental plans. Given the difficulty of applying definitions of "employer" and "controlled group" to nonprofit and governmental entities, the analysis in this letter is useful in a variety of contexts.
- IRS Directive Regarding Processing of Governmental Plans Determination Letter Applications with respect to Vesting Issues (April 30, 2012)
Directive from the IRS Acting Director, EP Rulings & Agreements, specifies vesting schedules the IRS will accept in processing determination letter requests by governmental plans.
- News Release IR-1869 (August 10, 1977)
Trusts under governmental plans will not be taxed, regardless of whether they are qualified. This document was the source of the original moratorium on the application of nondiscrimination rules to state and local governmental plans. That moratorium has now been codified, so the News Release is obsolete in that respect. However, in a seldom-noticed second holding, it stated that trusts under governmental plans would, until further notice, be treated as nontaxable, even if the plan they were funding was not qualified. This has interesting implications, as well, for the extent to which a governmental plan may be subject to unrelated business income tax if it has investments that would normally be considered unrelated business taxable income.
- Notice 2004-79, 2004-49 IRB 898 (December 6, 2004)
Notice that the Working Families Tax Relief Act of 2004 (WFTRA), Pub. L. No. 108-311, 118 Stat. 1166, will not affect the definition of dependent for purposes of section 106.
- Private Letter Ruling 199923056 (March 16, 1999)
Issued to the New York State & Local Retirement Systems Regarding Excess Benefit Plans. Discusses the tax consequences of a governmental plan described under Internal Revenue Code section 415(m), to provide benefits to employees whose benefits under qualified plans are limited by Code section 415(b) or (c).
- Private Letter Ruling 200028042 (April 19, 2000)
IRS Letter Ruling Concerning Governmental 401(k) Plans. This ruling treats a state and all of its subdivisions as together constituting a single employer. Thus, since a grandfathered 401(k) plan had been maintained by some state agencies, a new 401(k) plan could be adopted that would cover local governments and other state agencies.
- Private Letter Ruling 200108010 (November 17, 2000)
This ruling dealt directly with health plans that covered domestic partners of employees. However, its analysis would also apply to retirement and other employee benefit plans, and to individuals who are parties to a same-sex marriage recognized by their local jurisdiction.
- Private Letter Ruling 200345043 (August 13, 2003)
IRS Letter Ruling Concerning Governmental Plan Status of Corporation Formed by State. Discusses the factors used in determining whether a corporation formed by a state will be treated as an arm or instrumentality of the state government for purposes of allowing it to participate in a governmental plan.
- Technical Advice Memorandum 199903032 (October 2, 1998)
IRS guidance on tax and withholding consequences of early retirement programs and failed 457 plans. This Technical Advice Memorandum draws a distinction between the income and employment tax consequences of a deferred compensation plan for a tax-exempt or governmental entity that does not meet the requirements of Internal Revenue Code section 457(b). While based on statutory language, it produces distinctly odd results--suggesting, for example, that income tax withholding may be owed for a different year than the year in which amounts will be subject to income taxes.
Other Authorities
- PBGC, IRS, AND Department of Labor Guidelines on Asset Reversions (May 23, 1984)
Given the penalties now imposed on asset reversions to most employers, these guidelines are now primarily of interest to employers, such as governmental employers, that are not subject to those penalties. However, they are joint guidelines by three agencies, only one of which (the IRS) regulates governmental plans. Thus, it is important to distinguish which provisions are based on tax law (to which such plans are subject) and which are based on other laws to which such plans are not subject--and the distinction is seldom made clear in the document itself.
