U.S. Code » Title 29 » Chapter CHAPTER 18— EMPLOYEE RETIREMENT INCOME SECURITY PROGRAM › Subchapter SUBCHAPTER III— PLAN TERMINATION INSURANCE › Subtitle Subtitle E— Special Provisions for Multiemployer Plans › Part part 1— employer withdrawals

29 U.S.C. § 1384

Sale of assets

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(a) Complete or partial withdrawal not occurring as a result of sale and subsequent cessation of covered operations or cessation of obligation to contribute to covered operations; continuation of liability of seller(1) A complete or partial withdrawal of an employer (hereinafter in this section referred to as the “seller”) under this section does not occur solely because, as a result of a bona fide, arm’s-length sale of assets to an unrelated party (hereinafter in this section referred to as the “purchaser”), the seller ceases covered operations or ceases to have an obligation to contribute for such operations, if—(A) the purchaser has an obligation to contribute to the plan with respect to the operations for substantially the same number of contribution base units for which the seller had an obligation to contribute to the plan;(B) the purchaser provides to the plan for a period of 5 plan years commencing with the first plan year beginning after the sale of assets, a bond issued by a corporate surety company that is an acceptable surety for purposes of section 1112 of this title, or an amount held in escrow by a bank or similar financial institution satisfactory to the plan, in an amount equal to the greater of—(i) the average annual contribution required to be made by the seller with respect to the operations under the plan for the 3 plan years preceding the plan year in which the sale of the employer’s assets occurs, or(ii) the annual contribution that the seller was required to make with respect to the operations under the plan for the last plan year before the plan year in which the sale of the assets occurs,which bond or escrow shall be paid to the plan if the purchaser withdraws from the plan, or fails to make a contribution to the plan when due, at any time during the first 5 plan years beginning after the sale; and(C) the contract for sale provides that, if the purchaser withdraws in a complete withdrawal, or a partial withdrawal with respect to operations, during such first 5 plan years, the seller is secondarily liable for any withdrawal liability it would have had to the plan with respect to the operations (but for this section) if the liability of the purchaser with respect to the plan is not paid.(2) If the purchaser—(A) withdraws before the last day of the fifth plan year beginning after the sale, and(B) fails to make any withdrawal liability payment when due,then the seller shall pay to the plan an amount equal to the payment that would have been due from the seller but for this section.(3)(A) If all, or substantially all, of the seller’s assets are distributed, or if the seller is liquidated before the end of the 5 plan year period described in paragraph (1)(C), then the seller shall provide a bond or amount in escrow equal to the present value of the withdrawal liability the seller would have had but for this subsection.(B) If only a portion of the seller’s assets are distributed during such period, then a bond or escrow shall be required, in accordance with regulations prescribed by the corporation, in a manner consistent with subparagraph (A).(4) The liability of the party furnishing a bond or escrow under this subsection shall be reduced, upon payment of the bond or escrow to the plan, by the amount thereof.(b) Liability of purchaser(1) For the purposes of this part, the liability of the purchaser shall be determined as if the purchaser had been required to contribute to the plan in the year of the sale and the 4 plan years preceding the sale the amount the seller was required to contribute for such operations for such 5 plan years.(2) If the plan is in reorganization in the plan year in which the sale of assets occurs, the purchaser shall furnish a bond or escrow in an amount equal to 200 percent of the amount described in subsection (a)(1)(B).(c) Variances or exemptions from continuation of liability of seller; procedures applicableThe corporation may by regulation vary the standards in subparagraphs (B) and (C) of subsection (a)(1) if the variance would more effectively or equitably carry out the purposes of this subchapter. Before it promulgates such regulations, the corporation may grant individual or class variances or exemptions from the requirements of such subparagraphs if the particular case warrants it. Before granting such an individual or class variance or exemption, the corporation—(1) shall publish notice in the Federal Register of the pendency of the variance or exemption,(2) shall require that adequate notice be given to interested persons, and(3) shall afford interested persons an opportunity to present their views.(d) “Unrelated party” defined

For purposes of this section, the term “unrelated party” means a purchaser or seller who does not bear a relationship to the seller or purchaser, as the case may be, that is described in section 267(b) of title 26, or that is described in regulations prescribed by the corporation applying principles similar to the principles of such section.

(Pub. L. 93–406, title IV, § 4204, as added Pub. L. 96–364, title I, § 104(2), Sept. 26, 1980, 94 Stat. 1220; amended Pub. L. 101–239, title VII, § 7891(a)(1), Dec. 19, 1989, 103 Stat. 2445.)Editorial NotesAmendments

1989—Subsec. (d). Pub. L. 101–239 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

Statutory Notes and Related SubsidiariesEffective Date of 1989 Amendment

Amendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 7891(f) of Pub. L. 101–239, set out as a note under section 1002 of this title.

Notes of Decisions
Cited in 67 cases (3 in the last 5 years), 1982–2025 · leading case: Hop Energy, L.L.C. v. Local 553 Pension Fund, 678 F.3d 158 (2d Cir. 2012).
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Hop Energy, L.L.C. v. Local 553 Pension Fund, 678 F.3d 158 (2d Cir. 2012). · cites it 10× “HOP asked the fund to reconsider the assessment, claiming that the sale was exempt from withdrawal liability because the Madison sale satisfied 29 U.S.C. § 1384 (a)(1) as a bona fide asset sale.”
Cent. States, Se. & Sw. Areas Health & Welfare Fund, Loran W. Robbins, Marion M. Winstead v. Cullum Companies, Inc., 973 F.2d 1333 (7th Cir. 1992). · cites it 10× “29 U.S.C. § 1384 . The arbitrator held, however, and the district court agreed, that Cullum was not exempt.”
Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund & Paul Glover v. Louis Zahn Drug Co., 890 F.2d 1405 (7th Cir. 1989). · cites it 7× “Zahn argued that it was exempt from withdrawal liability because its transaction with Nuelson constituted a “bona fide, arm’s-length sale of assets” within the meaning of 29 U.S.C. § 1384 (a)(1). 4 The *1408 Fund’s trustees concluded that Zahn’s transaction with Nuelson did not…”
GCIU-Emp. Ret. Fund v. Goldfarb Corp., 565 F.3d 1018 (7th Cir. 2009). · cites it 2× “See 29 U.S.C. § 1384 . 6 As such, the cause of action here does not arise out of the general decision to sell Fleming or financial demise of Fleming, but rather the actual sale of Fleming’s assets without complying with the “safe harbor” provisions.”
New York State Teamsters Conf. Pension & Ret. Fund v. St. Lawrence Transit Mix Corp., 612 F. Supp. 1003 (N.D.N.Y. 1985). · cites it 8× “Therefore, defendant’s withdrawal liability has become fixed, and defendant has waived the affirmative defense it asserts under the MPPAA’s “Sale of Assets” provision, 29 U.S.C. § 1384 . According to plaintiff, no questions of fact are in dispute, and it is entitled to summary…”
NY State Teamsters v. C&S Wholesale Grocers, 24 F.4th 163 (2d Cir. 2022). · cites it 2× “On appeal, C&S argues that 29 U.S.C. § 1384 demonstrates that successor liability ought not extend to withdrawal liability.”
Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778 F.3d 593 (7th Cir. 2015). “See 29 U.S.C. § 1384 (a)(1)(B) & (C). 2 . NRF explains that its motion focused on Mezz Lender because it did not believe there was any real dispute that Mezz Lender was responsible for withdrawal liability as a trade or business under common control with H & S.”
Grand Union Co. v. Food Employers Labor Relations Ass'n, 808 F.2d 66 (D.C. Cir. 1987). · cites it 3× “Asserting qualification for the “sale of assets” exemption from withdrawal liability, 29 U.S.C. § 1384 , Grand Union commenced this action in the district court— without first resorting to arbitration — for a declaration of its rights and liabilities, and attendant affirmative…”
Helen Debreceni, Fund Manager of the New England Teamsters & Trucking Indus. Pension Fund v. The Outlet Co., 784 F.2d 13 (1st Cir. 1986). · cites it 3× “See 29 U.S.C. § 1384 (c) (1982). The PBGC is the government agency charged with insuring multiemployer plans under ERISA.”
Bd. of Trs., Sheet Metal Workers' Nat'l Pension Fund v. Illinois Range, Inc., 71 F. Supp. 2d 864 (N.D. Ill. 1999). · cites it 5× “29 U.S.C. § 1384 . Under Section 1384, an employer’s bona fide, arm’s-length sale of assets to an unrelated party does not result in withdrawal liability if the following three conditions are met: 1) “the purchaser has an obligation to contribute to the plan,” 29 U.”
Cent. States v. Bell Transit Co., 821 F. Supp. 1266 (N.D. Ill. 1993). · cites it 9× “Bell, however, will not be subject to withdrawal liability if the requirements set forth in 29 U.S.C. § 1384 are satisfied. That statute provides: (1) A complete or partial withdrawal of an employer (hereinafter in this section referred to as the “seller”) under this section…”
Resilient Floor Covering Pension Trust Fund Bd. of Trs. v. Michael's Floor Covering, Inc., 801 F.3d 1079 (9th Cir. 2015). “for substantially the same number of contribution base units for which the seller had an obligation to contribute to the plan,” § 1384(a)(1), and provides a bond or other financial assurance sufficient to cover five years of contributions.”
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