29 C.F.R. § 4041.8

Post-termination amendments

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(a) Plan benefits. A participant's or beneficiary's plan benefits are determined under the plan's provisions in effect on the plan's termination date. Notwithstanding the preceding sentence, an amendment that is adopted after the plan's termination date is taken into account with respect to a participant's or beneficiary's plan benefits to the extent the amendment—

(1) Does not decrease the value of the participant's or beneficiary's plan benefits under the plan's provisions in effect on the termination date; and

(2) Does not eliminate or restrict any form of benefit available to the participant or beneficiary on the plan's termination date.

(b) Residual assets. In a plan in which participants or beneficiaries will receive some or all of the plan's residual assets based on an allocation formula, the amount of the plan's residual assets and each participant's or beneficiary's share thereof is determined under the plan's provisions in effect on the plan's termination date. Notwithstanding the preceding sentence, an amendment adopted after the plan's termination date is taken into account with respect to a participant's or beneficiary's allocation of residual assets to the extent the amendment does not decrease the value of the participant's or beneficiary's allocation of residual assets under the plan's provisions in effect on the termination date.

(c) Permitted decreases. For purposes of this section, an amendment shall not be treated as decreasing the value of a participant's or beneficiary's plan benefits or allocation of residual assets to the extent—

(1) The decrease is necessary to meet a qualification requirement under section 401 of the Code;

(2) The participant's or beneficiary's allocation of residual assets is paid in the form of an increase in the participant's or beneficiary's plan benefits; or

(3) The decrease is offset by assets that would otherwise revert to the contributing sponsor or by additional contributions.

(d) Distress terminations. In the case of a distress termination, a participant's or beneficiary's benefit liabilities are determined as of the termination date in the same manner as plan benefits under this section.

Notes of Decisions

Cited in 3 cases, 2014–2015 · leading case: Pension Benefit Guar. Corp. v. Kentucky Bancshares, Inc., 597 F. App'x 841 (6th Cir. 2015).

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Pension Benefit Guar. Corp. v. Kentucky Bancshares, Inc., 597 F. App'x 841 (6th Cir. 2015). · cites it 7× “In its initial decision, PBGC held that the post-termination amendment could not be given retroactive effect, per 29 C.F.R. § 4041.8 , because “plan benefits are determined under the plan’s provisions in effect on the plan’s termination date.”

Pension Benefit Guar. Corp. v. Kentucky Bancshares, Inc., 7 F. Supp. 3d 689 (E.D. Ky. 2014). · cites it 5× “As set out in the Initial Determination, PBGC found that: (1) the PPA Amendment adopting the PPA specified interest rates and mortality table (together the “PPA Assumptions”) after the date of Plan termination decreased benefits in violation of 29 C.F.R. § 4041.8 , as the…”

Royal Oak Enter., LLC v. Pension Benefit Guar. Corp., 78 F. Supp. 3d 431 (D.D.C. 2015). · cites it 20× “” 29 C.F.R. § 4041.8 . Post-termination amendments are permissible only under narrow circumstances — so long as the amendment does not decrease the value of a participant’s benefits or is necessary to meet the qualification requirements imposed by I.”

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