26 USC 420 - Transfers of excess pension assets to retiree health accounts

(a) General rule 
If there is a qualified transfer of any excess pension assets of a defined benefit plan to a health benefits account which is part of such plan
(1) a trust which is part of such plan shall not be treated as failing to meet the requirements of subsection (a) or (h) of section 401 solely by reason of such transfer (or any other action authorized under this section),
(2) no amount shall be includible in the gross income of the employer maintaining the plan solely by reason of such transfer,
(3) such transfer shall not be treated

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(A) as an employer reversion for purposes of section 4980, or
(B) as a prohibited transaction for purposes of section 4975, and
(4) the limitations of subsection (d) shall apply to such employer.
(b) Qualified transfer 
For purposes of this section
(1) In general 
The term qualified transfer means a transfer
(A) of excess pension assets of a defined benefit plan to a health benefits account which is part of such plan in a taxable year beginning after December 31, 1990,
(B) which does not contravene any other provision of law, and
(C) with respect to which the following requirements are met in connection with the plan
(i) the use requirements of subsection (c)(1),
(ii) the vesting requirements of subsection (c)(2), and

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(iii) the minimum cost requirements of subsection (c)(3).
(2) Only 1 transfer per year 

(A) In general 
No more than 1 transfer with respect to any plan during a taxable year may be treated as a qualified transfer for purposes of this section.
(B) Exception 
A transfer described in paragraph (4) shall not be taken into account for purposes of subparagraph (A).
(3) Limitation on amount transferred 
The amount of excess pension assets which may be transferred in a qualified transfer shall not exceed the amount which is reasonably estimated to be the amount the employer maintaining the plan will pay (whether directly or through reimbursement) out of such account during the taxable year of the transfer for qualified current retiree health liabilities.
(4) Special rule for 1990 

(A) In general 
Subject to the provisions of subsection (c), a transfer shall be treated as a qualified transfer if such transfer
(i) is made after the close of the taxable year preceding the employers first taxable year beginning after December 31, 1990, and before the earlier of
(I) the due date (including extensions) for the filing of the return of tax for such preceding taxable year, or
(II) the date such return is filed, and
(ii) does not exceed the expenditures of the employer for qualified current retiree health liabilities for such preceding taxable year.
(B) Deduction reduced 
The amount of the deductions otherwise allowable under this chapter to an employer for the taxable year preceding the employers first taxable year beginning after December 31, 1990, shall be reduced by the amount of any qualified transfer to which this paragraph applies.
(C) Coordination with reduction rule 
Subsection (e)(1)(B) shall not apply to a transfer described in subparagraph (A).
(5) Expiration 
No transfer made after December 31, 2013, shall be treated as a qualified transfer.
(c) Requirements of plans transferring assets 

(1) Use of transferred assets 

(A) In general 
Any assets transferred to a health benefits account in a qualified transfer (and any income allocable thereto) shall be used only to pay qualified current retiree health liabilities (other than liabilities of key employees not taken into account under subsection (e)(1)(D)) for the taxable year of the transfer (whether directly or through reimbursement).
(B) Amounts not used to pay for health benefits 

(i) In general Any assets transferred to a health benefits account in a qualified transfer (and any income allocable thereto) which are not used as provided in subparagraph (A) shall be transferred out of the account to the transferor plan.
(ii) Tax treatment of amounts Any amount transferred out of an account under clause (i)
(I) shall not be includible in the gross income of the employer for such taxable year, but
(II) shall be treated as an employer reversion for purposes of section 4980 (without regard to subsection (d) thereof).
(C) Ordering rule 
For purposes of this section, any amount paid out of a health benefits account shall be treated as paid first out of the assets and income described in subparagraph (A).
(2) Requirements relating to pension benefits accruing before transfer 

(A) In general 
The requirements of this paragraph are met if the plan provides that the accrued pension benefits of any participant or beneficiary under the plan become nonforfeitable in the same manner which would be required if the plan had terminated immediately before the qualified transfer (or in the case of a participant who separated during the 1-year period ending on the date of the transfer, immediately before such separation).
(B) Special rule for 1990 
In the case of a qualified transfer described in subsection (b)(4), the requirements of this paragraph are met with respect to any participant who separated from service during the taxable year to which such transfer relates by recomputing such participants benefits as if subparagraph (A) had applied immediately before such separation.
(3) Minimum cost requirements 

(A) In general 
The requirements of this paragraph are met if each group health plan or arrangement under which applicable health benefits are provided provides that the applicable employer cost for each taxable year during the cost maintenance period shall not be less than the higher of the applicable employer costs for each of the 2 taxable years immediately preceding the taxable year of the qualified transfer or, in the case of a transfer which involves a plan maintained by an employer described in subsection (f)(2)(E)(i)(III), if the plan meets the requirements of subsection (f)(2)(D)(i)(II).
(B) Applicable employer cost 
For purposes of this paragraph, the term applicable employer cost means, with respect to any taxable year, the amount determined by dividing
(i) the qualified current retiree health liabilities of the employer for such taxable year determined
(I) without regard to any reduction under subsection (e)(1)(B), and
(II) in the case of a taxable year in which there was no qualified transfer, in the same manner as if there had been such a transfer at the end of the taxable year, by
(ii) the number of individuals to whom coverage for applicable health benefits was provided during such taxable year.
(C) Election to compute cost separately 
An employer may elect to have this paragraph applied separately with respect to individuals eligible for benefits under title XVIII of the Social Security Act at any time during the taxable year and with respect to individuals not so eligible.
(D) Cost maintenance period 
For purposes of this paragraph, the term cost maintenance period means the period of 5 taxable years beginning with the taxable year in which the qualified transfer occurs. If a taxable year is in two or more overlapping cost maintenance periods, this paragraph shall be applied by taking into account the highest applicable employer cost required to be provided under subparagraph (A) for such taxable year.
(E) Regulations 

(i) In general The Secretary shall prescribe such regulations as may be necessary to prevent an employer who significantly reduces retiree health coverage during the cost maintenance period from being treated as satisfying the minimum cost requirement of this subsection.
(ii) Insignificant cost reductions permitted
(I) In general An eligible employer shall not be treated as failing to meet the requirements of this paragraph for any taxable year if, in lieu of any reduction of retiree health coverage permitted under the regulations prescribed under clause (i), the employer reduces applicable employer cost by an amount not in excess of the reduction in costs which would have occurred if the employer had made the maximum permissible reduction in retiree health coverage under such regulations. In applying such regulations to any subsequent taxable year, any reduction in applicable employer cost under this clause shall be treated as if it were an equivalent reduction in retiree health coverage.
(II) Eligible employer For purposes of subclause (I), an employer shall be treated as an eligible employer for any taxable year if, for the preceding taxable year, the qualified current retiree health liabilities of the employer were at least 5 percent of the gross receipts of the employer. For purposes of this subclause, the rules of paragraphs (2), (3)(B), and (3)(C) of section 448 (c) shall apply in determining the amount of an employers gross receipts.
(d) Limitations on employer 
For purposes of this title
(1) Deduction limitations 
No deduction shall be allowed
(A) for the transfer of any amount to a health benefits account in a qualified transfer (or any retransfer to the plan under subsection (c)(1)(B)),
(B) for qualified current retiree health liabilities paid out of the assets (and income) described in subsection (c)(1), or
(C) for any amounts to which subparagraph (B) does not apply and which are paid for qualified current retiree health liabilities for the taxable year to the extent such amounts are not greater than the excess (if any) of
(i) the amount determined under subparagraph (A) (and income allocable thereto), over
(ii) the amount determined under subparagraph (B).
(2) No contributions allowed 
An employer may not contribute after December 31, 1990, any amount to a health benefits account or welfare benefit fund (as defined in section 419 (e)(1)) with respect to qualified current retiree health liabilities for which transferred assets are required to be used under subsection (c)(1).
(e) Definition and special rules 
For purposes of this section
(1) Qualified current retiree health liabilities 
For purposes of this section
(A) In general 
The term qualified current retiree health liabilities means, with respect to any taxable year, the aggregate amounts (including administrative expenses) which would have been allowable as a deduction to the employer for such taxable year with respect to applicable health benefits provided during such taxable year if
(i) such benefits were provided directly by the employer, and
(ii) the employer used the cash receipts and disbursements method of accounting.

For purposes of the preceding sentence, the rule of section 419 (c)(3)(B) shall apply.

(B) Reductions for amounts previously set aside 
The amount determined under subparagraph (A) shall be reduced by the amount which bears the same ratio to such amount as
(i) the value (as of the close of the plan year preceding the year of the qualified transfer) of the assets in all health benefits accounts or welfare benefit funds (as defined in section 419 (e)(1)) set aside to pay for the qualified current retiree health liability, bears to
(ii) the present value of the qualified current retiree health liabilities for all plan years (determined without regard to this subparagraph).
(C) Applicable health benefits 
The term applicable health benefits means health benefits or coverage which are provided to
(i) retired employees who, immediately before the qualified transfer, are entitled to receive such benefits upon retirement and who are entitled to pension benefits under the plan, and
(ii) their spouses and dependents.
(D) Key employees excluded 
If an employee is a key employee (within the meaning of section 416 (i)(1)) with respect to any plan year ending in a taxable year, such employee shall not be taken into account in computing qualified current retiree health liabilities for such taxable year or in calculating applicable employer cost under subsection (c)(3)(B).
(2) Excess pension assets 
The term excess pension assets means the excess (if any) of
(A) the lesser of
(i) the fair market value of the plans assets (reduced by the prefunding balance and funding standard carryover balance determined under section 430 (f)), or
(ii) the value of plan assets as determined under section 430 (g)(3) after reduction under section 430 (f), over
(B) 125 percent of the sum of the funding target and the target normal cost determined under section 430 for such plan year.
(3) Health benefits account 
The term health benefits account means an account established and maintained under section 401 (h).
(4) Coordination with section 430 
In the case of a qualified transfer, any assets so transferred shall not, for purposes of this section and section 430, be treated as assets in the plan.
(5) Application to multiemployer plans 
In the case of a multiemployer plan, this section shall be applied to any such plan
(A) by treating any reference in this section to an employer as a reference to all employers maintaining the plan (or, if appropriate, the plan sponsor), and
(B) in accordance with such modifications of this section (and the provisions of this title relating to this section) as the Secretary determines appropriate to reflect the fact the plan is not maintained by a single employer.
(f) Qualified transfers to cover future retiree health costs and collectively bargained retiree health benefits 

(1) In general 
An employer maintaining a defined benefit plan (other than a multiemployer plan) may, in lieu of a qualified transfer, elect for any taxable year to have the plan make
(A) a qualified future transfer, or
(B) a collectively bargained transfer.

Except as provided in this subsection, a qualified future transfer and a collectively bargained transfer shall be treated for purposes of this title and the Employee Retirement Income Security Act of 1974 as if it were a qualified transfer.

(2) Qualified future and collectively bargained transfers 
For purposes of this subsection
(A) In general 
The terms qualified future transfer and collectively bargained transfer mean a transfer which meets all of the requirements for a qualified transfer, except that
(i) the determination of excess pension assets shall be made under subparagraph (B),
(ii) the limitation on the amount transferred shall be determined under subparagraph (C),
(iii) the minimum cost requirements of subsection (c)(3) shall be modified as provided under subparagraph (D), and
(iv) in the case of a collectively bargained transfer, the requirements of subparagraph (E) shall be met with respect to the transfer.
(B) Excess pension assets 

(i) In general In determining excess pension assets for purposes of this subsection, subsection (e)(2) shall be applied by substituting 120 percent for 125 percent.
(ii) Requirement to maintain funded status If, as of any valuation date of any plan year in the transfer period, the amount determined under subsection (e)(2)(B) (after application of clause (i)) exceeds the amount determined under subsection (e)(2)(A), either
(I) the employer maintaining the plan shall make contributions to the plan in an amount not less than the amount required to reduce such excess to zero as of such date, or
(II) there is transferred from the health benefits account to the plan an amount not less than the amount required to reduce such excess to zero as of such date.
(C) Limitation on amount transferred 
Notwithstanding subsection (b)(3), the amount of the excess pension assets which may be transferred
(i) in the case of a qualified future transfer shall be equal to the sum of
(I) if the transfer period includes the taxable year of the transfer, the amount determined under subsection (b)(3) for such taxable year, plus
(II) in the case of all other taxable years in the transfer period, the sum of the qualified current retiree health liabilities which the plan reasonably estimates, in accordance with guidance issued by the Secretary, will be incurred for each of such years, and
(ii) in the case of a collectively bargained transfer, shall not exceed the amount which is reasonably estimated, in accordance with the provisions of the collective bargaining agreement and generally accepted accounting principles, to be the amount the employer maintaining the plan will pay (whether directly or through reimbursement) out of such account during the collectively bargained cost maintenance period for collectively bargained retiree health liabilities.
(D) Minimum cost requirements 

(i) In general The requirements of subsection (c)(3) shall be treated as met if
(I) in the case of a qualified future transfer, each group health plan or arrangement under which applicable health benefits are provided provides applicable health benefits during the period beginning with the first year of the transfer period and ending with the last day of the 4th year following the transfer period such that the annual average amount of such[1] the applicable employer cost during such period is not less than the applicable employer cost determined under subsection (c)(3)(A) with respect to the transfer, and
(II) in the case of a collectively bargained transfer, each collectively bargained group health plan under which collectively bargained health benefits are provided provides that the collectively bargained employer cost for each taxable year during the collectively bargained cost maintenance period shall not be less than the amount specified by the collective bargaining agreement.
(ii) Election to maintain benefits for future transfers An employer may elect, in lieu of the requirements of clause (i)(I), to meet the requirements of subsection (c)(3) by meeting the requirements of such subsection (as in effect before the amendments made by section 535 of the Tax Relief Extension Act of 1999) for each of the years described in the period under clause (i)(I).
(iii) Collectively bargained employer cost For purposes of this subparagraph, the term collectively bargained employer cost means the average cost per covered individual of providing collectively bargained retiree health benefits as determined in accordance with the applicable collective bargaining agreement. Such agreement may provide for an appropriate reduction in the collectively bargained employer cost to take into account any portion of the collectively bargained retiree health benefits that is provided or financed by a government program or other source.
(E) Special rules for collectively bargained transfers 

(i) In general A collectively bargained transfer shall only include a transfer which
(I) is made in accordance with a collective bargaining agreement,
(II) before the transfer, the employer designates, in a written notice delivered to each employee organization that is a party to the collective bargaining agreement, as a collectively bargained transfer in accordance with this section, and
(III) involves a plan maintained by an employer which, in its taxable year ending in 2005, provided health benefits or coverage to retirees and their spouses and dependents under all of the benefit plans maintained by the employer, but only if the aggregate cost (including administrative expenses) of such benefits or coverage which would have been allowable as a deduction to the employer (if such benefits or coverage had been provided directly by the employer and the employer used the cash receipts and disbursements method of accounting) is at least 5 percent of the gross receipts of the employer (determined in accordance with the last sentence of subsection (c)(3)(E)(ii)(II)) for such taxable year, or a plan maintained by a successor to such employer.
(ii) Use of assets Any assets transferred to a health benefits account in a collectively bargained transfer (and any income allocable thereto) shall be used only to pay collectively bargained retiree health liabilities (other than liabilities of key employees not taken into account under paragraph (6)(B)(iii)) for the taxable year of the transfer or for any subsequent taxable year during the collectively bargained cost maintenance period (whether directly or through reimbursement).
(3) Coordination with other transfers 
In applying subsection (b)(3) to any subsequent transfer during a taxable year in a transfer period or collectively bargained cost maintenance period, qualified current retiree health liabilities shall be reduced by any such liabilities taken into account with respect to the qualified future transfer or collectively bargained transfer to which such period relates.
(4) Special deduction rules for collectively bargained transfers 
In the case of a collectively bargained transfer
(A) the limitation under subsection (d)(1)(C) shall not apply, and
(B) notwithstanding subsection (d)(2), an employer may contribute an amount to a health benefits account or welfare benefit fund (as defined in section 419 (e)(1)) with respect to collectively bargained retiree health liabilities for which transferred assets are required to be used under subsection (c)(1)(B), and the deductibility of any such contribution shall be governed by the limits applicable to the deductibility of contributions to a welfare benefit fund under a collective bargaining agreement (as determined under section 419A (f)(5)(A)) without regard to whether such contributions are made to a health benefits account or welfare benefit fund and without regard to the provisions of section 404 or the other provisions of this section.

The Secretary shall provide rules to ensure that the application of this paragraph does not result in a deduction being allowed more than once for the same contribution or for 2 or more contributions or expenditures relating to the same collectively bargained retiree health liabilities.

(5) Transfer period 
For purposes of this subsection, the term transfer period means, with respect to any transfer, a period of consecutive taxable years (not less than 2) specified in the election under paragraph (1) which begins and ends during the 10-taxable-year period beginning with the taxable year of the transfer.
(6) Terms relating to collectively bargained transfers 
For purposes of this subsection
(A) Collectively bargained cost maintenance period 
The term collectively bargained cost maintenance period means, with respect to each covered retiree and his covered spouse and dependents, the shorter of
(i) the remaining lifetime of such covered retiree and his covered spouse and dependents, or
(ii) the period of coverage provided by the collectively bargained health plan (determined as of the date of the collectively bargained transfer) with respect to such covered retiree and his covered spouse and dependents.
(B) Collectively bargained retiree health liabilities 

(i) In general The term collectively bargained retiree health liabilities means the present value, as of the beginning of a taxable year and determined in accordance with the applicable collective bargaining agreement, of all collectively bargained health benefits (including administrative expenses) for such taxable year and all subsequent taxable years during the collectively bargained cost maintenance period.
(ii) Reduction for amounts previously set aside The amount determined under clause (i) shall be reduced by the value (as of the close of the plan year preceding the year of the collectively bargained transfer) of the assets in all health benefits accounts or welfare benefit funds (as defined in section 419 (e)(1)) set aside to pay for the collectively bargained retiree health liabilities.
(iii) Key employees excluded If an employee is a key employee (within the meaning of section 416 (I)(1))2 with respect to any plan year ending in a taxable year, such employee shall not be taken into account in computing collectively bargained retiree health liabilities for such taxable year or in calculating collectively bargained employer cost under subsection (c)(3)(C).
(C) Collectively bargained health benefits 
The term collectively bargained health benefits means health benefits or coverage which are provided to
(i) retired employees who, immediately before the collectively bargained transfer, are entitled to receive such benefits upon retirement and who are entitled to pension benefits under the plan, and their spouses and dependents, and
(ii) if specified by the provisions of the collective bargaining agreement governing the collectively bargained transfer, active employees who, following their retirement, are entitled to receive such benefits and who are entitled to pension benefits under the plan, and their spouses and dependents.
(D) Collectively bargained health plan 
The term collectively bargained health plan means a group health plan or arrangement for retired employees and their spouses and dependents that is maintained pursuant to 1 or more collective bargaining agreements.
[1] So in original. The word “such” probably should not appear.
[2] So in original. Probably should be “416(i)(1))”.