§1083. Variance from minimum funding standard

(a) Waiver of requirements in event of business hardship

If an employer, or in the case of a multi-employer plan, 10 percent or more of the number of employers contributing to or under the plan are unable to satisfy the minimum funding standard for a plan year without temporary substantial business hardship (substantial business hardship in the case of a multiemployer plan) and if application of the standard would be adverse to the interests of plan participants in the aggregate, the Secretary of the Treasury may waive the requirements of section 1082(a) of this title for such year with respect to all or any portion of the minimum funding standard other than the portion thereof determined under section 1082(b)(2)(C) of this title. The Secretary of the Treasury shall not waive the minimum funding standard with respect to a plan for more than 3 of any 15 (5 of any 15 in the case of a multiemployer plan) consecutive plan years. The interest rate used for purposes of computing the amortization charge described in subsection (b)(2)(C) of this section for any plan year shall be-

(1) in the case of a plan other than a multiemployer plan, the greater of (A) 150 percent of the Federal mid-term rate (as in effect under section 1274 of title 26 for the 1st month of such plan year), or (B) the rate of interest used under the plan in determining costs (including adjustments under section 1082(b)(5)(B) of this title), and

(2) in the case of a multiemployer plan, the rate determined under section 6621(b) of title 26.

(b) Matters considered in determining business hardship

For purposes of this part, the factors taken into account in determining temporary substantial business hardship (substantial business hardship in the case of a multiemployer plan) shall include (but shall not be limited to) whether-

(1) the employer is operating at an economic loss,

(2) there is substantial unemployment or underemployment in the trade or business and in the industry concerned,

(3) the sales and profits of the industry concerned are depressed or declining, and

(4) it is reasonable to expect that the plan will be continued only if the waiver is granted.

(c) "Waived funding deficiency" defined

For purposes of this part, the term "waived funding deficiency" means the portion of the minimum funding standard (determined without regard to subsection (b)(3)(C) of section 1082 of this title) for a plan year waived by the Secretary of the Treasury and not satisfied by employer contributions.

(d) Special rules

(1) Application must be submitted before date 2½ months after close of year

In the case of a plan other than a multiemployer plan, no waiver may be granted under this section with respect to any plan for any plan year unless an application therefor is submitted to the Secretary of the Treasury not later than the 15th day of the 3rd month beginning after the close of such plan year.

(2) Special rule if employer is member of controlled group

(A) In general

In the case of a plan other than a multiemployer plan, if an employer is a member of a controlled group, the temporary substantial business hardship requirements of subsection (a) of this section shall be treated as met only if such requirements are met-

(i) with respect to such employer, and

(ii) with respect to the controlled group of which such employer is a member (determined by treating all members of such group as a single employer).

The Secretary of the Treasury may provide that an analysis of a trade or business or industry of a member need not be conducted if the Secretary of the Treasury determines such analysis is not necessary because the taking into account of such member would not significantly affect the determination under this subsection.

(B) Controlled group

For purposes of subparagraph (A), the term "controlled group" means any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of title 26.

(e) Notice of filing of application for waiver

(1) The Secretary of the Treasury shall, before granting a waiver under this section, require each applicant to provide evidence satisfactory to such Secretary that the applicant has provided notice of the filing of the application for such waiver to each employee organization representing employees covered by the affected plan, and each affected party (as defined in section 1301(a)(21) of this title) other than the Pension Benefit Guaranty Corporation. Such notice shall include a description of the extent to which the plan is funded for benefits which are guaranteed under subchapter III of this chapter and for benefit liabilities.

(2) The Secretary of the Treasury shall consider any relevant information provided by a person to whom notice was given under paragraph (1).

(f) Cross reference

For corresponding duties of the Secretary of the Treasury with regard to implementation of the Internal Revenue Code of 1986, see section 412(d) of title 26.

( Pub. L. 93–406, title I, §303, Sept. 2, 1974, 88 Stat. 872 ; Pub. L. 99–272, title XI, §§11015(b)(1)(A), 11016(c)(2), Apr. 7, 1986, 100 Stat. 267 , 273; Pub. L. 100–203, title IX, §9306(a)(2), (b)(2), (c)(2)(A), (d)(2), Dec. 22, 1987, 101 Stat. 1330–353 to 1330-355; Pub. L. 101–239, title VII, §§7881(b)(6)(B)(ii), (7), (8), (c)(2), 7891(a)(1), Dec. 19, 1989, 103 Stat. 2438 , 2439, 2445.)

References in Text

The Internal Revenue Code of 1986, referred to in subsec. (f), is classified generally to Title 26, Internal Revenue Code.

Amendments

1989-Subsec. (a). Pub. L. 101–239, §7881(b)(7), redesignated pars. (A) and (B) as pars. (1) and (2), respectively, realigned margins, redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, of par. (1), and made technical correction to reference to section 6621(b) of title 26 in par. (2) resulting in no change in text.

Subsec. (a)(1)(B). Pub. L. 101–239, §7881(b)(6)(B)(ii), inserted "(including adjustments under section 1082(b)(5)(B) of this title)" after "costs".

Subsec. (e)(1). Pub. L. 101–239, §7881(c)(2), substituted "for benefit liabilities" for "the benefit liabilities" in last sentence.

Subsec. (f). Pub. L. 101–239, §7891(a)(1), substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954".

Pub. L. 101–239, §7881(b)(8), transferred subsec. (f) to follow immediately after subsec. (e).

1987-Subsec. (a). Pub. L. 100–203, §9306(a)(2)(B), substituted "temporary substantial business hardship (substantial business hardship in the case of a multiemployer plan)" for "substantial business hardship".

Pub. L. 100–203, §9306(b)(2), substituted "more than 3 of any 15 (5 of any 15 in the case of a multiemployer plan)" for "more than 5 of any 15".

Pub. L. 100–203, §9306(c)(2)(A), substituted "The interest rate used for purposes of computing the amortization charge described in subsection (b)(2)(C) of this section for any plan year shall be-" and pars. (A) and (B) for "The interest rate used for purposes of computing the amortization charge described in section 1082(b)(2)(C) of this title for a variance granted under this subsection shall be the rate determined under section 6621(b) of title 26."

Subsec. (b). Pub. L. 100–203, §9306(a)(2)(B), substituted "temporary substantial business hardship (substantial business hardship in the case of a multiemployer plan)" for "substantial business hardship".

Subsec. (d)(1). Pub. L. 100–203, §9306(a)(2)(A), added subsec. (d)(1). Former subsec. (d) redesignated (f).

Subsec. (d)(2). Pub. L. 100–203, §9306(a)(2)(C), added par. (2).

Subsec. (e)(1). Pub. L. 100–203, §9306(d)(2), substituted "plan, and each affected party (as defined in section 1301(a)(21) of this title) other than the Pension Benefit Guaranty Corporation. Such notice shall include a description of the extent to which the plan is funded for benefits which are guaranteed under subchapter III of this chapter and the benefit liabilities." for "plan."

Subsec. (f). Pub. L. 100–203, §9306(a)(2)(A), redesignated former subsec. (d) as (f).

1986-Pub. L. 99–272, §11015(b)(1)(A), inserted provision that the interest rate used for purposes of computing the amortization charge described in section 1082(b)(2)(C) of this title for a variance granted under this subsection be the rate determined under section 6621(b) of title 26.

Subsec. (e). Pub. L. 99–272, §11016(c)(2), added subsec. (e).

Effective Date of 1989 Amendment

Amendment by section 7881(b)(6)(B)(ii), (7), (8), (c)(2) of Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Pension Protection Act, Pub. L. 100–203, §§9302–9346, to which such amendment relates, see section 7882 of Pub. L. 101–239, set out as a note under section 401 of Title 26, Internal Revenue Code.

Amendment by section 7891(a)(1) of 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.

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–203 applicable in the case of any application submitted after Dec. 17, 1987, and any waiver granted pursuant to such an application, except that the amendment by section 9306(a)(2)(A) of Pub. L. 100–203 applicable to plan years beginning after Dec. 31, 1987, amendment by section 9306(b)(2) of Pub. L. 100–203 applicable to waivers for plan years beginning after Dec. 31, 1987, and amendment by section 9306(d)(2) of Pub. L. 100–203 applicable to applications submitted more than 90 days after Dec. 22, 1987, with certain exceptions and transitional rules, see section 9306(f) of Pub. L. 100–203, as amended, set out as a note under section 412 of Title 26, Internal Revenue Code.

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–272 effective Jan. 1, 1986, with certain exceptions, see section 11019 of Pub. L. 99–272, set out as a note under section 1341 of this title.

Section Referred to in Other Sections

This section is referred to in sections 1021, 1057, 1082, 1084, 1085a, 1362, 1423 of this title; title 26 section 412.