(a) General. A plan administrator violates ERISA if plan assets are allocated or distributed upon plan termination in a manner other than that prescribed in section 4044 of ERISA and this subpart, except as may be required to prevent disqualification of the plan under the Code and regulations thereunder.
(b) Distributions in anticipation of termination. A distribution, transfer, or allocation of assets to a participant or to an insurance company for the benefit of a participant, made in anticipation of plan termination, is considered to be an allocation of plan assets upon termination, and is covered by paragraph (a) of this section. In determining whether a distribution, transfer, or allocation of assets has been made in anticipation of plan termination PBGC will consider all of the facts and circumstances including—
(1) Any change in funding or operation procedures;
(2) Past practice with regard to employee requests for forms of distribution;
(3) Whether the distribution is consistent with plan provisions; and
(4) Whether an annuity contract that provides for a cutback based on the guarantee limits in subpart B of part 4022 of this chapter could have been purchased from an insurance company.
Notes of Decisions
Cited in
4
cases (
1 in the last 5 years), 2016–2021 · leading case:
Joseph Fisher v. PBGC, 994 F.3d 664 (D.C. Cir. 2021).
Joseph Fisher v. PBGC, 994 F.3d 664 (D.C. Cir. 2021).
· cites it 12× “After the district court vacated PBGC’s 2011 denial of the same request, PBGC’s 2016 remand decision featured a new rationale for denial based on 29 C.F.R. § 4044.4 (b). Because PBGC’s 2016 decision was a new agency action, the court reviews PBGC’s rationale and now concludes…”
Fisher v. Pension Benefit Guar. Corp., 151 F. Supp. 3d 159 (D.D.C. 2016).
· cites it 5× “Fisher also argued that 29 C.F.R. § 4044.4 (b), which prohibits the distribution of assets “in anticipation of plan termination” in a manner not consistent with ERISA, did not bar a lump-sum payment because the regulation was ultra vires and, in any event, inapplicable under the…”
Fisher v. Pension Benefit Guar. Corp. (D.D.C. 2020).
· cites it 16× “rd did not grapple with the fact that Fisher’s request was denied (not merely submitted) before the NOIT and thus did “not fall within the plain terms” of the policy the Board had relied on; (2) “neither the policy nor the decision spoke to whether an administrator may deny [a…”
Fisher v. Pension Benefit Guar. Corp. (D.D.C. 2020).
· cites it 15× “rd did not grapple with the fact that Fisher’s request was denied (not merely submitted) before the NOIT and thus did “not fall within the plain terms” of the policy the Board had relied on; (2) “neither the policy nor the decision spoke to whether an administrator may deny [a…”
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