Friday, October 29, 2010

[Overview] Keogh plan does not have to comply with ERISA to be exempt in bankruptcy

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Cypen & Cypen
DECEMBER 31, 2009Stephen H. Cypen, Esq., Editor

1.            IRS LISTS QUALIFICATION REQUIREMENTS:  Internal Revenue Service has issued its 2009 Cumulative List of Changes in Plan Qualification Requirements.  The 2009 Cumulative List is to be used by plan sponsors of individually designed plans that are in Cycle E (which includes a governmental plan for which an election has been made by the plan sponsor to treat Cycle E as the initial EGTRRA remedial amendment cycle for the plan).  Generally, governmental plans are in Cycle C, February 1, 2008 - January 31, 2009, but governmental plans were permitted to make a one-time election to be in Cycle E.  There are 41 items on the list, several containing subparts.  Included are Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), with technical corrections made by the Job Creation and Worker Assistance Act of 2002 (JCWAA); the Pension Funding Equity Act of 2004 (PFEA); the American Jobs Creation Act of 2004 (AJCA); the Pension Protection Act of 2006 (PPA); the Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART Act); the Emergency Economic Stabilization Act of 2008 (EESA); and the Worker, Retiree, and Employer Recovery Act of 2008 (WRERA).  IRS will not consider in its review of any determination letter application, for the submission period that begins February 1, 2010, any:  (1) guidance issued after October 1, 2009; (2) statutes enacted after October 1, 2009; (3) qualification requirements first effective in 2011 or later; or (4) statutory provisions that are first effective in 2010, for which there is no guidance identified in the notice.  The 2009 Cumulative List does not include any items described in (1) through (4) above.  However, in order to be qualified, a plan must comply with all relevant qualification requirements, not just those on the 2009 Cumulative List.  IRS Notice 2009-98, I.R.B., 2009-52 (December 28, 2009). 

 2.         JUDGE NOT LIKELY TO RECEDE FROM UNIVERSITY OF IDAHO RETIREES SUIT DECISION:  A lawsuit filed against the University of Idaho by 268 of its former employees will likely end up in the state's highest court, the district court judge presiding over the case has said.  The statement came, according to, after the judge heard a motion to consider his earlier decision in UI's favor.  The employees took early retirement buyouts offered by UI in 1999 and 2002.  Those agreements said early retirees would receive medical and life insurance benefits as outlined in "existing UI policy."  At time of their early retirement, those benefits included UI-paid medical insurance.  But following recommendations of a 2007 task force looking to cut costs, UI modified benefits of all its retirees, adding a medical insurance premium and reducing the amount of available life insurance.  The early retirees in the suit claim UI did not have the right to make those changes to their plans.  The judge, however, disagreed, finding that the university had the right to modify the benefit plans of its employees in accordance with a clause in its Faculty-Staff Handbook that makes such reservation.  The retirees had referred to the handbook as a source for definition of benefits under "existing UI policy," but the judge said the retirees could not pick and choose which parts of the handbook to reference, and would have to accept the reservation of rights along with the benefits descriptions.  One from Column A and one from Column B. 

 3.            STATE DEPARTMENT SEEKS TO DISMISS AGE DISCRIMINATION SUIT:  The State Department has filed a motion to dismiss a case challenging the U.S. Foreign Service's mandatory retirement policy, arguing the age cutoff was a valid piece of Congressional decision making.  Colton, a 64-year-old Foreign Services officer, sued the State Department, alleging that she had been denied an overseas assignment because of her age.  Her suit claimed the Foreign Service's requirement that officers retire at 65 violated the Constitution's equal protection clause. Colton also alleged the government violated the Age Discrimination in Employment Act by denying her career opportunities before she turned 65.  The government shot back, arguing that Colton was trying to upend long-settled law.  The U.S. Court of Appeals for the D.C. Circuit has already found that the retirement policy at issue, which is contained in the Foreign Services Act, was exempt from ADEA.  It added that the U.S. Supreme Court has also ruled that age cutoff does not violate equal protection.  This story comes from The Blog of Legal Times. 

 4.            DOL CORRECTLY UPHELD LABOR AGREEMENT:  Section 13(c) of the Urban Mass Transportation Act of 1964 requires state and local governments seeking federal financial assistance for transit operations to have in place “fair and equitable” provisions for protection of employees.  Each time an applicant requests funds from the Federal Transit Administration under UMTA, the Secretary of Labor must certify that § 13(c) is satisfied.  Since 1981, the City of Colorado Springs, Colorado has been a party to a labor agreement with Amalgamated Transit Union pursuant to § 13(c).  The City wished to be relieved of provisions of the Agreement that it contended went beyond § 13(c)’s requirements.  In connection with a certain grant application, DOL rejected the City’s objections to the Agreement, and certified the Agreement for purposes of that grant. The City then brought suit under the Administrative Procedure Act, and after the district court affirmed, the City appealed.  Concluding that DOL did not act arbitrarily or capriciously in rejecting the City’s objections, the appellate court affirmed.  Although the district court held that the provisions identified by the City in its challenge clearly exceeded § 13(c)’s requirements, in light of § 13(c)’s narrow purpose -- protecting transit workers’ collective bargaining rights -- DOL was not required to invalidate overly protective terms in a § 13(c) agreement.  Section 13(c) establishes “minimal standards,” and does not concern itself with other provisions to which the parties might agree.  Once DOL determines § 13(c) has been satisfied, its role is at an end.  However, just as the court of appeals saw nothing precluding the City from vigorously seeking renegotiation under threat of foregoing any further federal assistance (which, presumably, would negatively affect the Union as well as the City), it saw nothing precluding the City from pursuing state-law theories of relief in state court.  City of Colorado Springs v. Solis, Case No. 09-1029 (U.S. 10th Cir., December 23, 2009). 

 5.            WIFE WHOSE DISABILITY PREVENTED HER FROM VISITING INCARCERATED HUSBAND HAD STANDING TO SUE:  Fulton suffered from multiple sclerosis, which prevented her from visiting her husband in prison, 300 miles from her home.  She sued the New York State Department of Correctional Services, pursuant to the Americans with Disabilities Act and the Rehabilitation Act, seeking relief for the asserted failure to accommodate her disability in administering the Inmate Visitor Program.  The District Court dismissed her suit for both lack of standing and failure to state a claim.  On appeal, the court held that the lower court was misguided in viewing Fulton’s suit as consisting of claims based solely on defendant’s refusal to transfer her husband to a prison closer to her home, when in fact the basis of her  claim was broader:  defendant’s failure even to consider whether her disability could be reasonably accommodated.  The complaint is unequivocal that the defendant’s alleged discrimination caused Fulton’s claimed injury, and that this litigation could remedy the harm.  Thus, the court of appeals remanded the matter to the trial court to determine whether Fulton stated a claim upon which relief could be granted.  Fulton v. Goord, Case No. 06-5023-cv (U.S. 2nd Cir., December 22, 2009). 

 6.            MARYLAND DUMPS SHELL HOLDINGS OVER IRAN AFFILIATION:  The $32 Billion Maryland State Retirement and Pension System has divested more than 1 million shares of common stock valued at over $38.3 Million and $3.5 Million in bonds of Royal Dutch Shell because the company does business in Iran.  Pensions & Investments reports that the action resulted from a state law enacted last year that requires the system to consider divesting investments in companies that do business in Iran or Sudan, and have no plans to cut those operations.  In accordance with the statute, the board of trustees will continue to monitor and evaluate all remaining investments in companies doing business in Iran and Sudan.  Our readers are familiar with Chapter 2009-97, which amends Sections 175.071 and 185.06, Florida Statutes, in a similar vein (see C&C Special Supplement for July 2, 2009). 

 7.            DOL WILL SEEK NEW FIDUCIARY STANDARDS FOR CONSULTANTS:  Investment-related advice that pension consultants offer to retirement plan officials could be subject to higher fiduciary standards under a new regulation the Department of Labor proposes to consider in 2010.  A key DOL target in the proposal, according to Pensions & Investments, is the third-party payments that some investment consultants receive when retirement funds hire money managers recommended by them.  The thrust of DOL's proposed rulemaking, which the agency's Employee Benefits Security Administration hopes to unveil in June, would subject consultant advice to the full panoply of ERISA fiduciary obligations, which prohibit self-dealing and other conflicts.  An increasing number of plan fiduciaries rely on advice and recommendations from service providers such as pension consultants and financial asset appraisers in making significant investment-related decisions for their plans.  However, the current regulatory definition of “fiduciary” limits ERISA's ability to protect employee benefit plans from advisers and financial asset appraisers that act imprudently or that subordinate their clients' interests to the interests of others.  Subjecting these persons to ERISA's fiduciary responsibility rules will help protect the interests of plans by fostering the provision of quality, impartial advice and recommendations.  Believe it or not, EBSA’s proposed rulemaking responds to a May 2005 report by the Securities and Exchange Commission, finding that many pension consultants had conflicts of interest and did not consider themselves ERISA fiduciaries (see C&C Newsletter for May 26, 2005, Item 1).  

 8.            KEOGH PLAN NEED NOT COMPLY WITH ERISA TO BE EXEMPT IN BANKRUPTCY:  A United States District Court has affirmed the decision of a bankruptcy court that Baker’s Keogh plan was not exempt under Section 222.21(2)(a)(1), Florida Statutes.  Baker was the sole participant in and beneficiary of a Keogh plan managed by Fidelity Investments, which had obtained letter rulings from Internal Revenue Service that the plan was “acceptable under Section 401 of the Internal Revenue Code.”  On appeal, Baker did not contend that her Keogh plan was maintained in accordance with the Employee Retirement Income Security Act of 1974.  She contended, rather, that Section 222.21(2)(a)(1), Florida Statutes, exempted from the bankruptcy estate profit-sharing plans that qualify under Section 401(a) of the Internal Revenue Code, and her Keogh plan so qualified.  The lower court concluded that Baker could not claim exemption under Section 222.21(2)(a)(1), Florida Statutes, because she was the sole shareholder and sole participant in a Keogh plan, relying upon a 2004 United States Supreme Court decision defining “participant” in a pension plan under ERISA (see C&C Newsletter for March 8, 2004, Item 3).  On review de novo, the court of appeals reversed.  Although the Bankruptcy Code provides exemptions, a state may opt out of those exemptions and provide alternative exemptions.  In an opt-out state, debtors may exempt any property that is exempt under state or local law that is applicable on the date of the filing of the petition.  In Section 222.20, Florida Statutes, Florida elected to opt out, and has enacted its own exemptions.  Florida law shields from claims of creditors assets deposited in retirement and profit-sharing plans that have been pre-approved by IRS as exempt from taxation under Section 401(a) of the Internal Revenue Code.  Under Section 401(a) of the Internal Revenue Code, an employee includes a self-employed individual.  In 2005, the Florida Legislature amended Section 222.21, Florida Statutes, to provide that an exempt plan does not have to comply with ERISA.  Thus, the appellate court reversed the judgment that Baker’s Keogh plan had to comply with ERISA to qualify for an exemption under Section 222.21(2)(a)(1), Florida Statutes:  that section merely requires that profit-sharing plan qualify under Section 401(a) of the Internal Revenue Code, not that the plan comply with ERISA.  The cause was remanded with instructions for the district court to remand to the bankruptcy court to address whether Baker’s Keogh plan complied with Section 401(a) of the Internal Revenue Code.  A mighty fine -- and correct -- decision.  In Re:  Baker, Case No. 09-13144 (US 11th Cir., December 22, 2009). 

 9.            FEWER LAW ENFORCEMENT OFFICERS DIED ON JOB IN 2009:  Law enforcement deaths this year dropped to their lowest level since 1959, while the decade of the 2000s was among the safest for officers -- despite the deadliest single day for police on Sept. 11, 2001.  The drop in deaths, cited by the National Law Enforcement Officers Memorial Fund and reported in the New York Times, was tempered by an increase in firearm deaths.  Through December 27, the report found: 

124 officers were killed this year, compared to 133 in 2008.  The 2009 total represents the fewest line-of-duty deaths since 108 a half-century ago. Traffic fatalities fell to 56, compared to 71 a year ago.  The decline was partly attributed to ''move over'' state laws, which require motorists to change lanes to give officers clearance on the side of a road.Firearms deaths rose to 48, nine more than in 2008.  However, the 39 fatalities in 2008 represented the lowest annual figure in more than five decades. Thirty-five states and Puerto Rico had officer fatalities in 2009, with Texas the only state in double figures.  Texas had 11 fatalities, followed by Florida, 9; California, 8; and North Carolina and Pennsylvania, 7.Six federal officers died in 2009, including three Drug Enforcement Administration special agents killed in a helicopter crash in Afghanistan while conducting counter-narcotics operations. One female officer was killed in 2009, compared with 13 the previous year. There was no explanation for the decline.An average of 162 officers a year died in the 2000s, compared with 160 in the 1990s, 190 in the 1980s and 228 in the 1970s -- the deadliest decade for U.S. law enforcement.  Seventy-two officers died on Sept. 11, 2001.

'To reach a 50-year low in officer deaths is a real credit to the law enforcement profession and its commitment to providing the best possible training and equipment to officers, said the Memorial Fund chairman and CEO.

10. ai5000's TOP FIVE INSTITUTIONAL INVESTMENT STORIES OF 2009:  As the new year approaches, ai5000 has decided to be bold:  editors picked what they think are the top five stories that controlled headlines in the Institutional Investment community in 2009.  Here they are, in no particular order: 

Revelation of the Full Extent of American Endowment Problems.  Entering 2009, the world knew that trouble was afoot at America’s largest endowments.  What was not fully understood as 2009 dawned was the extent to which these endowments had been misjudging their liquidity needs. Providing enough capital and liquidity to maintain university growth, even in downturns, is the new Endowment Model. The Equity Bull Run v. The Gold Bull Run.  The equity bull run, with the Dow Jones Industrial Average up some 70% since mid-March, is an obvious highlight of 2009.  However, at the same time, gold -- a safe haven in times of crises -- has enjoyed a similar bull run.  The Dubai Default and the Retrenchment of SWFs (with One Exception).  Sovereign wealth funds went from feared to desired to burned in the four years after 2005.  Dubai has now effectively defaulted on its debt, surviving only at the pleasure of Abu Dhabi.   There is one obvious exception to the current retrenchment and skepticism:  China Investment Corporation. The American Placement Agent Scandal.  While within the larger arc of history the placement agent scandal is but a small bump, the way in which the Securities and Exchange Commission and state officials reacted will redefine the landscape of how institutional investors interact with, and indeed choose between, all types of institutional asset managers.The More Things Change ... A Surprising Lack of New Regulations Impinging on Financial Markets.  John Maynard Keynes is enjoying a renaissance that Tiger Woods can only dream of.  Many of Keynes’s prescriptions on how to curb financial crises have been adopted wholeheartedly across the globe, and it is generally accepted that governments must intervene at some points to avoid the sturm and drang of 2008.  However, 15 months after Lehman Brothers pushed the financial markets to the edge of a Dionysian abyss, relatively little has changed.  To be sure, change has happened, but only at the margin.  Perhaps politicians are waiting for the dust to settle before they attempt to clean it up.  Perhaps they view other reforms as more pressing and in need of political capital expenditures.  Whatever the reason, little has been done to alter the fundamental problems with the American financial sector and the global systemic risk that it produces.  The facts have changed, but, so far, the opinions -- or at least action based on them -- have yet to change as well.

Very heady stuff, indeed. 

11. MONTANA DEPUTY SHERIFF NOT PROHIBITED FROM DEMONSTRATING GROUNDS FOR TERMINATION WERE PRETEXTUAL:   Park County appealed a judgment entered upon a jury verdict in favor of Blatter, whom the County Sheriff had terminated as a deputy pursuant to a statute that specifies the only causes for which a deputy may be fired.  (Those causes include conviction of a felony, willful disobedience of an order given by the sheriff, drinking on duty, sleeping on duty, incapacity and gross inefficiency.)  The situation that led to Blatter’s termination arose from the fallout of a failed romance between two county deputies, and the Sheriff’s attempt to identify the source of a rumor about the relationship.  The Sheriff contended that Blatter’s termination was justified because he had spread the rumor about an incident related to the relationship, contrary to the “no rumor” order, and that he refused to disclose the source of the rumor.  The trial court jury found determination was not justified and proper, that Blatter was entitled to damages and that Blatter was entitled to reinstatement as a deputy.  On appeal, the County contended that the district court had misapplied the law, resulting in admission of prejudicial and irrelevant testimony that caused the jury wrongfully to return a verdict for Blatter.  The County argued that the Sheriff’s Department is a “paramilitary operation,” and that under the statute there is zero tolerance for any deputy who commits any of the infractions listed therein, and that in litigation, a deputy may not introduce evidence to show that there were other non-statutory reasons for termination.  The District Court concluded that Blatter should not be prohibited from presenting evidence that the actual reason for his termination was other than that stated in the termination letter.  In affirming, the Supreme Court of Montana held that prior precedent does not preclude a deputy from introducing evidence that termination was not justified because there were ulterior reasons, outside of statutory grounds, for the termination.  Blatter v. Park County Sheriff’s Office, Case No. DA 09-0218 (Mont., December 15, 2009) (non precedential). 

12. TASER USE MAY HAVE CONSTITUTED EXCESSIVE FORCE:  Early one morning in the summer of 2005, Officer McPherson deployed his taser against Bryan during a traffic stop for a seatbelt infraction.  Bryan filed an action in federal court under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment.  McPherson appealed denial of his motion for summary judgment based on qualified immunity.  On appellate review, the court affirmed, because, viewing  circumstances in the light most favorable to Bryan, McPherson’s use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.  The facts are almost comical, but here are the relevant ones.  McPherson stopped Bryan for a seatbelt violation.  Having been stopped earlier by another law enforcement officer for speeding, Bryan was already agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes.  He was standing twenty to twenty-five feet away from McPherson and not attempting to flee. McPherson testified that Bryan took a step toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from McPherson.  Without warning, McPherson shot Bryan with the taser gun.  The electrical current immobilized him, whereupon he fell face first to the ground, fracturing four teeth and suffering facial contusions.  Bryan’s already-bad morning ended with his arrest and transport by ambulance to a hospital for treatment.  In denying summary judgment for McPherson, the trial court concluded that a reasonable jury could find that Bryan presented no immediate danger to McPherson and no use of force was necessary.  The court also found that a reasonable officer would have known that use of the taser would cause pain and, as Bryan was standing on asphalt, that a resulting fall could cause injury.  All of the factors are articulated in recent cases placed McPherson on fair notice that an intermediate level of force was unjustified.  That there is no direct legal precedent dealing with this precise factual scenario is not dispositive.  Rather, where an officer’s conduct so clearly offends an individual’s constitutional rights, a court need not find closely analogous case law to show that a right is clearly established.  Bryan v. McPherson, Case No. 08-55622 (US 9th Cir., December 28, 2009). 

13. CalPERS TOUGHENS ETHICS GUIDELINES:  The Board of the California Public Employees’ Retirement System has strengthened ethics policies that guide how the nation’s largest public pension fund is governed.  The Board tightened rules regulating its interaction with CalPERS staff concerning investment proposals, and gave the Board President authority to discipline members whose actions violate policy.  Board Members also will be required to attend annual training sessions detailing their responsibilities to fund participants and beneficiaries.  Among the policies approved: 

Board members will be required to refer communication concerning existing or potential investments to CalPERS Chief Investment Officer.  The guideline also calls for Board Members to refrain from advocating a course of action concerning an investment with CalPERS staff outside a Board or Committee meeting.  The Board of Administration President will be responsible for implementing any disciplinary action against a Board member who violates Board policies. The disciplinary action could include admonishment, censure, temporary termination of travel privileges, removal as a committee chair or vice chair or the requirement of additional ethical or fiduciary training.  The Vice President is responsible for any action against the President. 

According to a CalPERS press release, staff must make decisions based squarely on the merits of a transaction.  The Board wants independent, objective analysis to be the ultimate guide when it comes to CalPERS investments, and the new policies ensure that will happen.  We shall see. 

14. DAVE BARRY REVIEWS 2009:  As usual, Dave Barry has weighed in with his year in review.  Here is just a small sampling of Barry’s take on 2009 (omitting his month-to-month summaries): 

It was a year of Hope -- at first in the sense of “I feel hopeful!” and later in the sense of “I hope this year ends soon!” 

It was also a year of Change, especially in Washington, where the tired old hacks of yesteryear finally yielded the reins of power to a group of fresh, young, idealistic, new-idea outsiders such as Nancy Pelosi.  As a result Washington, rejecting “business as usual,” finally stopped trying to solve every problem by throwing billions of taxpayer dollars at it and instead started trying to solve every problem by throwing trillions of taxpayer dollars at it. 

To be sure, it was a year that saw plenty of bad news.  But in almost every instance, there was offsetting good news:

BAD NEWS:  The economy remained critically weak, with rising unemployment, a severely depressed real-estate market, the near-collapse of the domestic automobile industry and the steep decline of the dollar. 

GOOD NEWS:  Windows 7 sucked less than Vista.

BAD NEWS:  Downward spiral of the newspaper industry continued, resulting in the firings of thousands of experienced reporters and an apparently permanent deterioration in the quality of American journalism. 

GOOD NEWS:  A lot more people were tweeting. 

BAD NEWS:  Ominous problems loomed abroad as -- among other difficulties -- the Afghanistan war went sour, Iran threatened to plunge the Middle East and beyond into nuclear war. 

GOOD NEWS:  They finally got Roman Polanski.

In short, it was a year that we will be happy to put behind us.  And, thanks to Dave Barry, we can put this year in proper prospective. 

15. IF FAMOUS CHARACTERS THROUGHOUT TIME HAD JEWISH MOTHERS:  Mona Lisa's Jewish mother:  “After all the money your father and I spent on braces, this you call a smile?” 

16. FABULOUS RANDOM THOUGHTS:  Nothing sucks more than that moment during an argument when you realize you're wrong. 

17.            QUOTE OF THE WEEK:  “Things may come to those who wait, but only the things left by those who hustle.”  Abraham Lincoln

We wish you and yours a very happy, healthy and prosperous New Year!!!!Copyright, 1996-2009, all rights reserved.

Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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Bankruptcy Chrysler Cuts Deep into pension pensioners

Editor's Note: this a correct version from one who originally appeared online.

John Hinckley eight years ago as the plant manager that oversaw the assembling the Dodge Viper retired and received a cheque for retirement, every month without fail.

Then, Chrysler LLC filed for bankruptcy reorganization 30 April and may control fell short-short-22%.

Hinckley, 68, is setting a loss of approximately $ 2,000 per month in pension after Chrysler LLC filed a voluntary petition under Chapter 11 of the U.S. Bankruptcy Code. Right now, he has set to lose money for the rest of his retirement.

He is irked that he isn't always what was promised. "It's a pretty healthy cut, when someone calls and says ' Oh, we're going to take 10% of your income, ' "said Hinckley of Mendel.

Hinckley, who was the Director of the establishment Conner Avenue Assembly in Detroit from 1996 to 2001, is one of an estimated 700 managerial employees of Chrysler who are 62 and older and getting shortchanged on their pensions.

Some had pensions of $ 100,000 per year;Some were promised significantly more.

The collapse of the old Chrysler isn't just hit people on the line.Law protects pension funds required to qualified plans of the company's creditors in the bankruptcy.

But a nonqualified plan participant becomes technically an unsecured creditor in a bankruptcy.

Managers and other managers may be offered a nonqualified plan once the company and/or the employee already has hit limits on contributions to qualified financing plans. Then, bonus money or other compensation can apply to plans unqualified. woe, however, can strike once companies go through bankruptcy.

About 5% of pensioners salaried Chrysler has received few benefits from a specific plan and qualified.

Many pensioners Chrysler executives don't want to speak publicly about how much money you will lose. But privately they say smaller pension means that they are going to be forced to cut controls. John Kent, 57, was Director of engineering at the headquarters of Chrysler, Detroit, when he retired last autumn.

In may, saw $ 1,365 disappear from its Control Board immediately after the filing of bankruptcy.The money was deposited at some point during the day and then quickly taken.

The company cancelled the electronic filing of pension checks more than 1000 1st May and sent cheques two weeks later that did not contain any supplemental Executive Retirement Plan money.

He said he was "pretty nervous" after a cut of 15% for retirement.

From mid-June, but has learned that some 300 salaried retirees who were under the 62 ultimately obtain a break; their unqualified additional benefits would resume and continue until they hit of 62.

From 1 July the pensioners who are under 62 will receive retroactive payments to cover amounts SRP may, June and July, if applicable.

But the letter sent to retirees has underlined that additional benefits will cease once the pensioner reaches 62 years under this top floor.

Chrysler spokesman Michael Palese said that the company tried to adopt a socially responsible approach.

"In most failures, these benefits can basically go away," said savagely.

In General, said about 80% of unqualified benefits will be preserved.

Hinckley wants the new Chrysler to succeed, but decided that a reduction of 22% retired was too drastic.

Has filed paperwork as an unsecured creditor in bankruptcy court. "You sugarcoat a positive rotation or put on this type of treatment of pensioners unconscionable, "said Hinckley."Is theft, plain and simple ".

Contact Susan TOMPOR: 313-222-8876 or

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Thursday, October 28, 2010

[Overview] Former employees have no claim against the bankrupt employer for unpaid medical bills, but they can look up the dispute employee health premiums

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© 2009 EBIA-Employee Benefits Institute of America

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The hidden danger of deferred compensation plans

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Not frightened enough by the dwindling balance in your retirement accounts in the last year?

Here’s a nightmare for you: Imagine waking up one morning to discover that your employer is bankrupt and the money you have set aside in your deferred compensation plan belongs to the company’s creditors.

Unfortunately, this possibility is a real one for employees of companies like Chrysler. A 401(k) plan is safe from those your company owes money. But creditors can — and will — go after deferred-compensation plans, which allow high-level employees and many others earning more than $100,000 to $200,000 or so annually to contribute money, which then grows on a tax-deferred basis for use later. And if a company goes bankrupt, employees may end up with nothing.

Many people who are enrolled in these plans, common at large companies and at many smaller ones, too, have no idea that their funds are vulnerable and that the company does not even have to set aside the money in a separate account. Others may have found the warning in the fine print when signing up years ago but have long since forgotten about it. And plenty more remain in denial about their company’s true prospects and won’t get wise until it’s too late.

As brand-name companies like Lehman Brothers, Chrysler and Filene’s Basement declare bankruptcy and scores more consider it, the number of employees facing this loss is probably going to grow.

HOW THE PLANS WORK There are many kinds of deferred-compensation plans, but the most common allow employees to contribute money from their salary or bonuses to an account where their balances grow on a tax-deferred basis. You don’t pay taxes on the money you defer from your pay, and there are no taxes to pay while it grows. The taxman shows up only once you take the money out.

The big idea here is that rather than paying 28 percent or more in income taxes on that money now, you can take the money out later in the hopes of paying less income tax then. While employers don’t advertise these accounts as retirement plans per se, many people use them with the intention of leaving the money until they stop working.

Companies are allowed to invite only a select group of highly paid workers to participate. While there are no strict rules, usually only the top 5 or 10 percent of earners get in. There are no legal limits on how much you can save, though employers often impose a cap.

Once participants set aside the money, it can grow. Some employers add to the workers’ total based on the prime rate or a long-term Treasury bill rate. Or they may let people choose from a selection of mutual funds.

WHO SHOULD PARTICIPATE? Bankruptcy issues aside for a moment, deferred-compensation plans have had many attractions, at least until recently. Salespeople who had an unexpectedly big earnings year, for example, could defer income until later, when they would probably pay lower taxes.

Others might have wanted to lower their income for different reasons, including financial aid eligibility and planning for a forthcoming leave of absence. The plans are also a form of forced savings. In recent years, however, as the looming cloud of Medicare and Social Security has grown ever larger, it’s become less certain that taxes for retirees will be much lower a decade or three from now. Uncertainty around tax rates has only gotten higher since President Obama has taken office and the size of the stimulus packages has grown.

So all of a sudden, paying income taxes now, investing in mutual funds in taxable accounts and then hoping that capital gains tax rates remain low doesn’t seem like a half-bad bet.

WHAT HAPPENS IN BANKRUPTCY? Panic, basically, for those who are in a deferred-compensation plan. (Did you expect a different answer?)

“There are thousands of retired Chrysler executives running around trying to figure out what their rights are,” said David Neier, a lawyer and partner at Winston & Strawn in New York specializing in bankruptcy.

Mike Melbinger, a partner and chairman of the employee benefits and executive compensation practice for Winston in Chicago, said, “They’re not going to find an answer or a way to get their money.” All that Chrysler is saying publicly is that it will figure out how to handle its plan as its bankruptcy unfolds.

Why is Mr. Melbinger’s assessment so downbeat? Even though employees enrolled in deferred-compensation plans are in fact creditors in a bankruptcy, there are many others who, by law, stand ahead of them in line at the corporate asset trough. As a result, there often isn’t much, if anything, left for them by the time they reach the front.

One other thing to keep in mind: If you think your plan is safe because the most senior people at the company are still invested, it could be that they are in a different plan with special protections that yours lacks.

SO WHAT SHOULD YOU DO? The most natural response would be to simply take your money out of the plan. But a deferred-compensation plan is not like, say, an Individual Retirement Account, where you can withdraw at will and simply pay taxes and a penalty if need be. While the rules are complicated, contributions to a deferred-compensation plan tend to be locked up for at least two years, and you’d have to make a decision about what you’re going to do at the end of that second year at least one tax year beforehand.

You could also quit your job, if your plan allows you to withdraw your funds upon departure. It sounds a bit extreme, but if you have hundreds of thousands of dollars in the plan and are close to retirement age, it might be worth it to get out before your company declares bankruptcy, even if it does mean you’ll face a sizable tax bill.

Departing may not always be possible or practical, though. As Howard S. Beltzer, a partner at Morgan, Lewis & Bockius in New York and co-chairman of the firm’s restructuring group, pointed out, there are laws that allow creditors, under certain circumstances, to come after people who have quit and taken their deferred compensation. If those employees had reason to believe that the company was headed for bankruptcy, they might have to turn the money over to creditors.

If your company tries to reorganize in Chapter 11, all may not be lost. The company and its creditors may decide it’s better to keep the plan intact so that employees are willing to stick around and try to save the firm. Then again, this could infuriate creditors who do not want to reward the people who ran the company into the ground.

If you find yourself in a mess like this, you’ll obviously want to make the case for preserving the plan. It will be easier, however, if you’re still working. “An employee who has left is in the passenger seat of a car going over a cliff,” Mr. Neier said.

Then, there’s the nuclear option. If all else fails, sue and say that the deferred-compensation plan was never legitimate in the first place. If you can prove, for example, that your employer let too many people into the plan, you might have a shot at getting your money back.

But betting on winning a lawsuit is not a particularly good financial plan, says Robert Keach, a shareholder and co-chairman of the business reorganization and insolvency practice group at Bernstein, Shur, Sawyer & Nelson in Portland, Me. “The default position is, if the company is insolvent, you’re probably going to lose money,” he said, even though he recently negotiated a settlement in one case and hopes to do so again for former employees of the New Century Financial Corporation, a subprime lender that declared bankruptcy.

So if there’s any chance of insolvency where you work — and who can say that there isn’t at many companies right now? — it doesn’t make much sense to participate in the deferred-compensation plan.

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[Overview] Attestation of PBGC Termination Premium not a bankruptcy, unsecured Dischargeable

An employer who finished a defined benefit plan, while undergoing a reorganisation of Chapter 11 bankruptcy could not avoid paying a severance for PBGC by calling bonus of an unsecured claim, pre-petition that was dischargeable under the Bankruptcy Code, the u.s. Court of Appeals of New York (CA-2) established in PBGC v. Oneida.

PBGC termination premium

Under 4006 (a) (7) ERISA, under certain circumstances an employer terminating a plan single employer must pay a premium of cessation for PBGC. under the "general rule", payment is due from the first month following the month in which the date of cessation. A "special rule", however, if the plan is terminated in the course of a proceeding in bankruptcy reorganization, then the general rule does not apply to the first month following the month in which the employer is rejected by the insolvency proceedings.

The bankruptcy court has ruled in favour of the employer, determine bonus to which a credit of pre-petition dischargeable due to the definition of broad offered the term "claim" in the bankruptcy context.PBGC's Claim to payment of the premium existed before bankruptcy but was subject to a contingency.

PBGC'S entitlement to payment

Reversing the bankruptcy court, the circuit court granted far-reaching failure "credit" but claimed that an application for bankruptcy valid requires (1) a right to payment (2) which arose before filing the petition. Courts must evaluate the substantive law underlying the right to payment — in this case the ERISA plan termination provisions — to determine the validity of the claim.

ERISA 4006 (a) (7) establishes the PBGC payments, but when was the entitlement to payment created? according to the Court of appeal, to the "special rule" contained in 4006 (a) (7) (B) ERISA clearly states that the right to payment PBGC does not exist until the employer discharged from bankruptcy.("The purpose of this rule," the judge said, "is to prevent employers evading terminators Prize while seeking bankruptcy reorganization.")Also the broad construction of the term "credit" in bankruptcy cannot have a right to payment which has not yet arisen under ERISA.

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Wednesday, October 27, 2010

[Overview] Montana Supreme Court upheld verdict to pensioners

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Cypen & Cypen
OCTOBER 22, 2009Stephen H. Cypen, Esq., Editor

1.            401(K)S MAY NOT BE THE ANSWER NOW:  Following last week’s prescient article in Time (see C&C Newsletter for October 15, 2009, Item 1), USA TODAY has published an article entitled “Retirement overhaul:  401(k)s may not be the answer now.”  Congress created the 401(k) in 1980 to supplement company pension plans.  But with pension plans no longer offered to all workers or frozen, millions of Americans have been relying solely on 401(k) plans to fund retirement.  Others -- nearly a third of American households -- do not have any retirement savings.  And only 4% of middle-income married couples who do not have a pension and are nearing retirement are likely to have enough money to last their lifetime.  America faces a retirement crisis, says Retirement USA, launched by the Economic Policy Institute, the National Committee to Preserve Social Security and Medicare, the Service Employees International Union, the Pension Rights Center, AFL-CIO, the National Caucus and Center on Black Aged and the National Consumers League.  The group's goal is to create a new retirement system that works in conjunction with Social Security and existing plans.  Members agree that the retirement system must be universal, secure and able to ensure that all will have a reasonable standard of living after they stop working.  The current system does not meet those basic needs.  Millions of retirees are barely surviving financially:  nearly 24% of Americans older than 65 have incomes below the poverty threshold.  The 401(k) is clearly the center of the retirement storm; some consumer advocates say the 401(k) is a failure that should end.  Retirement USA wants to keep the best parts of the current system and add to it.  Statistics show that 401(k) plans do not serve everyone well, and those who use them often make big investing mistakes, including cashing them out early.  Many workers -- especially women, Hispanics and African Americans -- do not contribute to a 401(k) plan at all.  Only 41% of Hispanic workers say they save money for retirement, and only 25.6% are covered by an employer-sponsored retirement plans.  Women also face an obstacle men do not:  they need to replace more of their final pay for retirement -- 2% more than the average male -- because they live longer.  A recent AARP survey found that 29% of workers ages 45 to 64 had stopped making retirement contributions.  About 18% of workers in the same age group have withdrawn funds from their 401(k) plans in the past year, either taking loans or cashing out.  Draining retirement funds, even to pay off credit card debt or medical bills, is a losing proposition.  People think it will solve their problem, but when the underlying problem does not go away, they end up not paying back the 401(k) loan and taking the tax penalty.  Double whammy. 

 2.            IRS ANNOUNCES PENSION PLAN LIMITATIONS FOR 2010:  Internal Revenue Service has announced cost-of-living adjustments applicable to dollar limitations for pension plans and other items for Tax Year 2010.  Section 415 of the Internal Revenue Code provides for dollar limitations on benefits and contributions under qualified retirement plans.  Section 415(d) requires that the Commissioner annually adjust these limits for cost-of-living increases.  Other limitations applicable to deferred compensation plans are also affected by these adjustments under Section 415.  Under Section 415(d), adjustments are to be made pursuant to adjustment procedures which are similar to those used to adjust benefit amounts under the Social Security Act.  The limitations adjusted by reference to 415(d) will remain unchanged for 2010.  This situation arises because the cost-of-living index for the quarter ended September 30, 2009 is less than the cost-of-living index for the quarter ended September 30, 2008, and, following procedures under the Social Security Act for adjusting benefit amounts, any decline in the applicable index cannot result in a reduced limitation.  Effective January 1, 2010, the limitation on annual benefit under a defined benefit plan under 415(b)(1)(A) remains unchanged at $195,000. For participants who separated from service before January 1, 2010, the limitation for defined benefit plans under 415(b)(1)(B) is computed by multiplying the participant's compensation limitation, as adjusted through 2009, by 1.0000.  The limitation for defined contribution plans under Section 415(c)(1)(A) remains unchanged for 2010 at $49,000.  The Code provides that various other dollar amounts are to be adjusted at the same time and in the same manner as the dollar limitation of Section 415(b)(1)(A).  After taking into account applicable rounding rules, the amounts for 2010 are as follows: 

The limitation under Section 402(g)(1) on exclusion for elective deferrals described in Section 402(g)(3) remains unchanged at $16,500.  (This limitation affects elected deferrals to Section 401(k) plans.) 

Annual compensation limit under Section 401(a)(17) remains unchanged at $245,000. 

Annual compensation limitation under Section 401(a)(17) for eligible participants in certain governmental plans which, under the plan as in effect on July 1, 1993, allowed cost-of-living adjustments to the compensation limitation under the plan under Section 401(a)(17) to be taken into account, remains unchanged at $360,000.

Limitation on deferrals under Section 457(e)(15) concerning deferred compensation plans of state and local governments and tax-exempt organizations remains unchanged at $16,500.

Thank goodness the statute prohibits reduction in limitations, or we would have seen them for 2010.  IR-2009-094 (October 15, 2009). 

 3.            IRS UPDATES SAFE HARBOR EXPLANATIONS FOR ELIGIBLE ROLLOVER DISTRIBUTIONS:  As reported by Gabriel Roeder Smith & Company, Internal Revenue Service has issued Notice 2009-68, updating its Safe Harbor Explanations for Eligible Rollover Distributions.  Administrators of qualified plans are required to provide rollover recipients with a clearly written explanation of rules related to eligible rollover distributions.  Qualified plans include defined benefit and defined contribution plans under IRC §§ 401(a), 401(k), 403(a) and governmental 457(b) deferred compensation plans.  For plans qualified under § 403(b), the payor is required to provide the written explanation.  The written explanation should include descriptions of (1) direct rollover rules; (2) mandatory income tax withholding rules; (3) tax treatment of distributions that are not rolled over; (4) when distributions may be subject to different restrictions; and (5) tax consequences of the rollover.  The written explanation is to be provided to the recipient not more than 180 days and not less than 30 days before the date on which the distribution is to be made.  However, the recipient may waive the 30-day requirement.  Notice 2009-68 provides two safe harbor explanations that satisfy the Code: one for rollovers from designated Roth accounts and the other for all other rollovers.  The new explanations update those issued in 2002, and include tax law changes made by the Economic Growth and Tax Relief Reconciliation Act of 2001; the Pension Protection Act of 2006; and the Worker, Retiree, and Employer Recovery Act of 2008, among others.  The changes include, but are not limited to: 

Ability of participants to roll over amounts from an eligible employer plan to a Roth IRA (subject to certain income and other limitations); Ability of non-spouse beneficiaries to roll over distributions to IRAs (required for all plan years beginning after January 1, 2010); and  Relief from the 10% early withdrawal penalty for distributions from government plans to qualified public safety employees who separate from service after attainment of age 50. 

The notice allows plan administrators to customize safe harbor explanations by omitting information that does not apply to the plan, provided the resulting document is consistent with the safe harbor explanations.  The new explanations may be used immediately; however, 2002 explanations will continue to serve as safe harbor explanations through the end of 2009.  Notice 2009-68 can be accessed at: 

 4. “INFLATION” HAS LITTLE EFFECT ON TAX RATES AND BENEFITS IN 2010:   Tax rate brackets and various tax benefits will remain unchanged or change only slightly in 2010 due to inflation, according to an Internal Revenue Service announcement.  By law, dollar amounts for a variety of tax provisions must be revised each year to keep pace with inflation.  As a result, more than three dozen tax benefits are subject to inflation adjustments each year, but because recent inflation factors have been minimal, many of these benefits will remain unchanged or change only slightly for 2010.  Key provisions affecting 2010 returns, filed by most taxpayers in early 2011, include the following: 

Value of each personal and dependency exemption available to most taxpayers is $3,650, unchanged from 2009. New standard deduction for heads of household is $8,400, up from $8,350 in 2009.  For other taxpayers, standard deduction remains unchanged at $11,400 for married couples filing a joint return and $5,700 for singles and married individuals filing separately.  Nearly two out of three taxpayers take the standard deduction rather than itemizing deductions, such as mortgage interest, charitable contributions and state/local taxes.  Various tax bracket thresholds will see minor adjustments.  As an example, for a married couple filing a joint return taxable income threshold separating the 15 percent bracket from the 25 percent bracket is $68,000, up from $67,900 in 2009. Annual gift tax exclusion remains unchanged at $13,000. 

IR-2009-093 (0ctober 15, 2009). 

 5. POLL FINDS MANY OKAY WITH PUBLIC PENSIONS:   Despite public pension systems all over California drowning in red ink, there is little public alarm over what government workers are paid in retirement benefits, a report from shows.   According to a nonpartisan, statewide poll, only 32 percent of registered voters believe public pensions are too generous, 40 percent say they are about right and 16 percent say they are not generous enough.  The poll also reveals strong partisan differences about pension benefits:  among Democrats, 24 percent believe public pensions are too generous and 47 percent say they are about right; when it comes to Republicans, 45 percent say they are too generous and 33 percent believe they are not. A significant gender gap also emerged:  forty percent of men interviewed said they think public pension benefits are too generous, but only 24 percent of women did.  (Hard to believe.)  The poll found that the majority of California voters, 52 percent, believe that public safety workers should continue to receive more generous benefits than other state and local government workers.  

 6. JUDGE SEES “NOVEL” ASPECTS IN NEW YORK PENSION PROBE:   Reuters reports that a New York criminal court judge said New York Attorney General Andrew Cuomo's fraud charges against a central figure in a major pension kickback case partly rested on a "novel" use of state securities law.  Called the Martin Act,
New York's securities law gives the attorney general broad powers over financial fraud.  The judge did not elaborate on what he believes is novel about Cuomo's use of state law.  However, he did say that Henry Morris, a top political adviser to the former state comptroller who has been charged with taking millions of dollars in illegal fees, did not work for the state.  Morris's lack of a direct relationship may raise questions about whether he was required to disclose, for example, fees he was paid from investment firms that sought business from the state pension fund.  The judge did say that the issue must be resolved sooner or later, predicting an appeal of any decision he makes. 

 7. SUPREME COURT OF MONTANA UPHOLDS VERDICT FOR RETIREES:  Northwestern Corporation and others appealed a jury verdict rendered against them and in favor of Ammondson and others, which awarded plaintiffs/retirees approximately $17.5 million dollars in compensatory damages and $4 million dollars in punitive damages based on a claim for breach of contract, and the torts of breach of the covenant of good faith and fair dealing, abuse of process and malicious prosecution.  Ammondson and the others were all former employees of Montana Power Company for periods ranging from 3 to 40 years.  Each retiree left MPC after entering into separate agreements that provided them monthly payments to supplement their regular retirement plans.  These agreements were known as "Top Hat Contracts," a term derived from the Employee Retirement Income Security Act.  Northwestern Corporation had purchased MPC’s assets, and assumed responsibility for all current future obligations of MPC as they related to any supplemental pension benefit or benefit replacement restoration plan, program or individual agreement that had been maintained by MPC.  When Northwestern subsequently filed for Chapter 11 reorganization in bankruptcy court, Northwestern did not provide notice to holders of the Top Hat Contracts that it would reject their contracts during bankruptcy and seek to treat them as general, unsecured creditors.  Instead, Northwestern continued to pay the retirees under terms of the Top Hat Contracts throughout bankruptcy proceedings.  Later, after the bankruptcy court had confirmed Northwestern’s Chapter 11 bankruptcy organization plan, Northwestern, without giving any prior notice to any of the retirees, ceased making payments to them under the Top Hat Contracts.  In generally affirming the trial court’s judgment, among other holdings, the state’s highest court held that (1) retirees’ claims were not preempted by federal bankruptcy law; (2) the lower court did not err by denying defendants the opportunity to present an advice-of-counsel defense; (3) the trial court did not err in allowing the jury to consider retirees’ claims for emotional distress; and (4) the trial court did not err in denying defendants’ post-trial motion to offset the judgment against the amount of retirees’ pre-trial settlement with the attorneys for defendants.  Ammondson v. Northwestern Corporation, DA 07-0243 (Mont., October 13, 2009). 

 8. PBGC SETS FLAT-RATE PREMIUM INCREASES FOR 2010 PLAN YEAR:  The Pension Benefit Guaranty Corp. has announced the flat-rate premium increase for 2010 plan year.  The per-participant flat-rate premium for plan year 2010 is $35.00 for single-employer defined benefit pension plans (up from $34.00 for plan year 2009) and $9.00 for multiemployer defined benefit pension plans (unchanged from plan year 2009).  By law, premium rates are adjusted for inflation each year based on changes in national average wage index.  Of course, PBGC protects retirement incomes of nearly 44 million American workers in more than 29,000 private-sector defined benefit pension plans.  PBGC is not funded by general tax revenues. 

 9. TECHNICAL CORRECTION ON PUBLIC SAFETY TAX-FIX:  We recently reported that Florida Senator Bill Nelson had introduced a bill to fix certain tax issues related to passage of the Pension Protection Act of 2006 (see C&C Newsletter for October 15, 2009, Item 6).  We referred to a companion bill having been introduced by Florida Representative Kendrick Meek introduced on May 22, 2008 (see C&C Newsletter for June 12, 2008, Item 1).  We should have realized that at the end of each session of Congress proposed bills that have not passed are cleared from the books.  Therefore, Meek’s 2008 bill had to be reintroduced, which it was on January 27, 2009 (HR 721).  Incidentally, one of Meek’s co-sponsors is Florida colleague Ileana Ros Lehtinen (R-FL).  Well, it looks like this one is an all-Florida team. 

10. A LESSON IN GOLF:  Big-time executives have always played lots of golf.  However, with unemployment pushing 10%, people have much more time for the sport -- assuming they can afford to pay.  Anyway, for those of you who want to learn on the cheap, here is your first lesson in golf, provided by Ralph Kramden (Jackie Gleason) and Ed Norton (Art Carney): 

11. AN OLD FARMER’S ADVICE:  If you find yourself in a hole, the first thing to do is stop diggin'.  

12. IDIOSYNCRASIES OF OUR LANGUAGE:  Would a fly without  wings be called a walk? 

13. QUOTE OF THE WEEK:  “No man is an island, but some of us are long peninsulas.”  Ashleigh Brilliant (Brilliant, Ashleigh.)

Copyright, 1996-2009, all rights reserved.

Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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3rd Circuit rules bankrupt employer must negotiate retiree health and benefit cuts death

Employers unilaterally in bankruptcy cannot reduce or end the retiree health or death, even if design documents and SPD reserves the right to do so, has established the 3rd U.S. Circuit Court of Appeals. Instead, employers must negotiate cuts with representatives of retirees, using a process outlined in Bankruptcy Code Section 1114. It is irreconcilable with the majority of the judgments below on the scope of section 1114. But as the first judgment of the Court of appeal on this issue, this decision might be influential.  (Select News, July 30, 2010)

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[Overview] Debtor not subtract 401(k) loan repayments in test of partial failure as a necessary expense

Reimbursement of a debtor of a loan of 401(k) plan did not constitute a payment of debts guaranteed or a necessary expense that could be deducted from the monthly income of the debtor for the purposes of testing means, Chapter 7 bankruptcy code, according to the u.s. Court of Appeals in San Francisco (CA-9), in Egjebjerg v. Anderson, a case of first impression.

401(k) loan was unable to stave off bankruptcy

In an effort to avoid bankruptcy, an employee has acquired a loan from your 401(k) plan, which was repaid through an automatic monthly deduction from his salary of $ 733.90. Two years later, the employee filed for bankruptcy Bankruptcy code, claiming the monthly income of $ 15.31, Chapter 7. Calculation of the employee of his monthly income reflects its inclusion of repaying the loan the 401 (k) as a necessary expense.

The trustee in bankruptcy has contested the petition of Chapter 7, holding that the repayment of loans were not a necessary expense, and that the deposit of the debtor was presumptively unfair under Chapter 7 means test. initially, the U.S. Bankruptcy court in California found that the loan was a debt guaranteed that could be deducted from the income of the borrower for testing purpose means. However, when considering all the circumstances of each case, the judge dismissed the petition of Chapter 7, reasoning that, since the loan will be refunded at the time that has been issued the order of the Court, the debtor has sufficient funds to pay a considerable part of its debt in a proceeding of Chapter 13. Allowing the petition of Chapter 7 to proceed in such circumstances would be an abuse of process, the Court emphasised.

Repayment of the loan is not a debt guaranteed

Allow a debtor under Chapter 7 means test deduct payments monthly average, facts of "guaranteed".However, the Ninth Circuit, in agreement with most jurisdictions, held that the obligation of the debtor to repay a loan from a retirement account is not a debt within the meaning of the bankruptcy code that can be deducted from income under proof of means.

Noting that the obligation of an employee under a loan of 401(k) is in itself, the Court emphasised that the administrator of the plan is not entitled to personal recovered against the debtor in case of default.The plan is not authorized to sue the debtor for payments, but only can offset against future benefits funds.The Court also underlined, distribution considers that emerges from a loan default, will be subject to the debtor only to tax penalties and does not provide the plan with reimbursement rights or other legal remedy.

The Court recognised that debtors in chapter 13 proceeding are expressly authorised to deduct refunds of 401(k) loans in the calculation of income available. However, the judge admonished, bankruptcy law makes no provision for a right comparable debtors of Chapter 7.

Repayment of the loan is not a necessary expense

As proof of means, debtors may deduct the actual monthly expenses that qualify as "other expense". the debtor has maintained that the monthly repayments of loan 401(k) are a necessary expense. According to the debtor, the recovery of his 401(k) account was necessary to his health and well-being because the account would its fine but significant retired.

Rejecting the claims of the debtor, the Court noted that the internal revenue manual and the Bankruptcy Code expressly declare that contributions to voluntary retirement plans are not a necessary expense. find the loan repayment 401(k) be the functional equivalent of voluntary contributions to a retirement plan, the Court concluded that the contributions can be deducted from the income as a necessary expense.

Rejecting the conclusions to the contrary, based on the application of the totality of circumstances proof of prior right, the Court explained that, under the currently applicable test means, voluntary retirement contributions per se are not a necessary expense. Therefore, allowing the debtor to deduct the repayment of loans 401(k) from his disposable income for purposes of proof means justify a presumption of abuse of relief of Chapter 7.

The presumption of abuse, Chapter 7 can be rebutted if "special circumstances," as a serious medical condition or a call or order to active military service, justify additional costs or an adjustment of the current monthly income, for which there is no reasonable alternative. However, the debtor's obligation to repay the loan, the Court has held, not (absent life altering circumstances beyond the General accident financial problems to failure) is a special circumstance sufficient to rebut the presumption of abuse.

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Tuesday, October 26, 2010

GASB issues OPEB, bankruptcy guidance

The organisation entrusting has released the Declaration No 57, OPEB measures by employers as agent and agent-employer more plans and Declaration No 58, accounting and financial reporting for the protection of Chapter 9.

According to an announcement of GASB, 57 statement discusses measurement obligations OPEB by some employers participating in the plans of OPEB agent multiple-employer.(Agent plans multiple-employer, separate liabilities are calculated and separate asset accounting, each participating Government, rather than being administered and accounted for as a single plan, the same way a cost allocation plan).

57 Statement changes the Declaration No 43, Financial Reporting for Postemployment Benefit plans other than Pension Plans and education no 45, accounting and financial reporting by employers for Postemployment benefits over pensions.

In particular, according to the announcement, 57 of statement:

allows some employers as agent to use the alternative method of measurement, a less complex and potentially less for a full actuarial valuation;rule the need for a defined benefit plan actuarial OPEB get an evaluation, in the light of change allowing more qualifying employers use the alternative method of measurement; and clarifies that the same frequency and timing of determining measures OPEB are necessary for multiple planes-employer agent both participating employers.

Bankruptcy protection

58 Statement provides guidance for Governments that have filed for bankruptcy protection in Chapter 9 of the United States Bankruptcy Code. It establishes requirements for recognising and measuring the effects of the process of bankruptcy on assets and liabilities and changes in classification of those facts and the associated costs.

"Stress that the current economic context is putting on the State and local government resources and the lack of existing financial reporting guidance necessary because GASB issues financial reporting associated with local qualified that file for bankruptcy protection in Chapter 9," said the President Robert Attmore, GASB in ad.

The provisions of the Declaration 57 related to the use and reporting of the alternative method of measurement shall be immediately effective. provisions concerning the frequency and timing of measurements are effective for first actuarial assessments used to report information of State funded plan in the financial statements for periods commencing OPEB after 15 June 2011.58 Statement is effective for reporting periods beginning after June 15, 2009.

More information on how to order copies of new documents GASB are here.

Fred Schneyer

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[Overview] Bankruptcy Protection Act trumpets pensioners ERISA, 3rd Circuit rules

Shannon p. Duffy

In a major victory for the job, a federal appeals court has ruled that a bankrupt company cannot end the benefits of life insurance and the health of its retirees--even if his plan ERISA reserved explicitly the right to unilaterally terminate these benefits--unless you can show that it's a necessary part of its plan of reorganisation.

The decision of 95 pages from the 3rd U.S. Circuit Court of Appeals in re Visteon Corp promises to change the playing field in large corporate bankruptcies by Parliament than section 1114 of retiree benefits Fall protection without exception.

It marks the first time that any federal appeals court has squarely addressed the scope of section 1114 and by asking a simple reading of the law, could reverse a strong trend between bankruptcy courts and the District Court to avoid the requirements of section 1114 would have been free to rescind retiree benefits before company insolvency of the debtor.

"We hold that section 1114 is ambiguous and clearly applies to retiree benefits all," wrote the Chief U.S. Circuit Judge Theodore a. McKee.The lower courts who have refused to apply the section 1114 widely have reasoned that doing so would produce results "absurd" giving pensioners more rights in the context of failure before they would have enjoyed.

But McKee found that Congress was fixed to protect retirees during the period of high pressure of a reorganisation of failure and that the use of a very broad language in legal proof is designed to provide a broad umbrella of protection.

In section 1114, Congress provided procedural and substantive protections for retiree benefits in proceedings of Chapter 11.

The law says that the trustee in bankruptcy must attempt to reach an agreement with retirees as regards changing the retiree benefits before may ask the referee to modify or terminate their. Thus, the trustee must also provide retirees with information on the financial situation of the company, to enable an informed assessment of the proposal.

The law also says that a bankruptcy court must grant a motion to amend the benefits pensioner only if it finds that doing so "you must enable the reorganisation of the borrower and ensures that all creditors, debtors and all stakeholders are treated equitably and loyal and clearly is favored by the balance of the shares.

Section 1114 also provides additional protection for retiree benefits, giving them priority that they would not otherwise have. Any payment for retiree benefits required to be made in the course of a procedure for Chapter 11 has the status of a "residence administrative expenditure" rather than unsecured General status which would otherwise apply.

Visteon's lawyers argued successfully in bankruptcy and district courts that applying the section 1114 no sense because the company's ERISA plan gave the power to unilaterally terminate benefits pensioner. Giving pensioners more rights in bankruptcy court would be absurd, they argued.

But the 3rd Circuit rejected that argument forthrightly.

"Despite the arguments to the contrary, the simple language of section 1114 produces a result that is neither conflict with the legislative intent, nor absurd," McKee wrote an opinion by Judge Marjorie o. Rendell and Walter k. Stapleton.

"Neglecting the text of this Statute is equivalent to a judicial repeal of the protections that Congress intended to afford under these circumstances. we must therefore give effect to the staff regulations as written," wrote McKee.

McKee said that he recognized that "the majority of bankruptcy and district courts which have addressed this issue have concluded that 1114 section does not limit the ability of the debtor to terminate benefits during the bankruptcy when she reserved the right to do so in the applicable plan documents."

But this view is wrong, the McKee found, because Congress has made space for any of these exceptions.

"Section 1114 hardly could be clearer. it limits the ability of the debtor to change any payments to any person or entity in any fund, plan or program in existence when the debtor's files for Chapter 11 bankruptcy and so does despite any other provision of the bankruptcy code. There is therefore no ambiguity if you apply the section 1114," wrote McKee.

"Using the word ' any ' three separate times, Congress ensured that the Statute applies to all benefits," McKee written. "We are therefore unpersuaded by the suggestion that failure to specifically address the advantages that could be solved unilaterally outside of bankruptcy somehow breathes ambiguity in the word ' any '. "

The ruling is a victory for attorneys Thomas m. Kennedy and Susan m. Jennik of Jennik Kennedy & Murray in New York, which have submitted the appeal on behalf of the industrial division of the communication workers of America.

Approx. 2100 retirees objected when auto parts supplier Visteon Corp finished their life insurance benefits and health without following the procedures laid down in section 1114.

But U.S. Bankruptcy judge Christopher Sontchi ruled in March that Visteon was free to do so, and retired persons lost their first round of appeals when u.s. District Judge Michael m. Baylson, special assignment to the Court of Delaware, declined to disturb the judgment of Sontchi.

Accelerated appeal to the circuit 3rd followed and pensioners have now emerged victorious with a ruling that breathes new life into section 1114 of s-PCS that its protective provisions apply in any case in which the debtor company aims to terminate the benefits pensioner.

Opinion McKee includes a lengthy discussion of the legislative history of the law at a highly controversial bankruptcy where 78,000 retirees have lost their benefits, and shows that Congress was setting a mechanism that should be followed in any failure to ensure fairness to workers who often have decided to forgo raises for decades in exchange for a promise of lifelong benefits.

The widespread tendency to ignore the section 1114, McKee concluded, stemmed from misunderstanding of the law purposes and mandates.

"Courts which have concluded that it is absurd to apply section 1114 advantages that could be resolved outside of bankruptcy are often misinterpreted rigidity of the protections of section and then the extent to which the Statute is in tension with ERISA," wrote McKee.

"Section 1114 does not prohibit termination of benefits during a bankruptcy proceeding. Rather, creates an equitable procedure through which the debtor can sustain economic necessity to do so, and retirees may conflict with their arguments on the economy, fairness and equity," McKee wrote.

For the most part, McKee said, "all section 1114 ensures retirees is a voice and some minimum amount of leverage, in a process that might otherwise be nothing short of devastating to them and their families and communities".

Visteon spokesman Jim Fisher has refused to comment except to say that the company was "disappointed by judgment" and "currency an appropriate course of action."

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Monday, October 25, 2010

Union of Chrysler running large risks, says the Director

The President of the Union, United Automobile workers, Ron Gettelfinger said Monday evening that concessions granted Chrysler would leave the u.a.w. new Fund retiree health care "on life support initially."

Go to next paragraph Thomas Lauria, a lawyer who represents a group of dissident of lenders of Chrysler objected to the plan of reorganization of the company.

Separately, Chrysler has won provisional approval in federal bankruptcy court in Manhattan to access a loan of EUR 4.5 billion dollars by the Governments of the United States and Canada. the judgment of the federal bankruptcy court, Arthur j. Gonzalez, cancelled the objections of some lenders Chrysler and staved off what judge Gonzalez described as certain and immediate liquidation.

Mr. Gettelfinger, in his first public comments since Chrysler filed for bankruptcy protection last week, said equity that Chrysler has been stationary for 5.1 billion $ in cash was "zero" today and added that the planned on its u.a.w. stock sale, not just this way financially feasible.

Dismissed the criticism by some lenders Chrysler, who accused the u.a.w. getting preferential treatment from the Treasury Department, as it mediated Union talks with Chrysler. "We took a lot of risk here," said Mr. Gettelfinger.

The shareholding was part of a reorganisation of Chrysler, supported by the Federal Government, in which many of the company's activities can be sold to Fiat, the Italian manufacturer. as part of that deal, a new Chrysler will be established during which would keep u.a.w. a game by 55 percent through his healthcare Fund, while Fiat would hold up to 35% and the Governments of Canada and the United States have maintained the balance.

An analysis of the Capstone Advisory Group, a consultant for Chrysler's restructuring, which was submitted to the insolvency court said that while Chrysler lost almost $ 17 billion in 2008, was on track to be profitable by 2012. that analysis assumes some increases in sales and the timely completion of bargain Fiat.

Chrysler expects to emerge from bankruptcy in early July.It does not expect to receive orders of dealer or reopen your plants until it ended on failure.

Gettelfinger said that he had thought that Union deal with Chrysler, such as workers ratified by a margin of 4 to 1 day before Chrysler filed for bankruptcy, would be sufficient to leave the company restructure outside the Court.

But he said that workers do not have approved the deal in vain: "the fact that agreements ratified puts us in a better position."And was grateful that Chrysler filed for Chapter 11 protection, rather than settle as executives had warned.

"Of all the alternatives that were there," said, "clearly this is head and shoulders above everything else."

Yet that plan reorganising came under fire from some lenders Chrysler dissident in hearing on Monday, and clashes between lawyers for the company and for the Group of companies investment of around 20 foreshadowed a battle in court on Tuesday. is that when the judge Gonzalez is scheduled to hear the arguments proposed bargain Fiat. the Group of dissidents lenders have submitted a motion to stop the plan reorganising, arguing that it runs run afoul of Federal Attorney accordingly for that group, Thomas e. Lauria of White & case, contested the Monday that the loan of EUR 4.5 billion in possession-debtor was too closely linked to the proposal of Fiat.

Lauria argued before a packed audience — that paid in two halls of overflow to Manhattan — Court approving the loan would be Chrysler on a fatal course, what he said to his customers would violate their loan contracts with the constructor.

Gonzalez judge stressed that have rejected the loan would be dispatched Chrysler certain liquidation. Some corporate managers testify on Monday that Chrysler need money to pay his suppliers of parts and its dealers, many of which are on the verge of closing.

Earlier in the day, Director of Chrysler, Robert Bullock, a Capstone, Executive Director said that he was unable to find alternatives to borrow Government of 4,5 billion dollars. Judge ruling that late Monday Gonzalez provides access to approximately 1.8 billion dollars of money that Chrysler.

In a court filing, beef has projected the Chrysler would need approximately $ 4.1 billion in financing bankruptcy for a period of nine weeks. the loan from Governments, which is set to ripen in 60 days, is unlikely to be reimbursed, beef said. would fall behind financiers Chrysler, proprietors of guaranteed what is called "first-lien debt and they are supposed to be first in line for redemption.

Beef has also conducted an analysis of liquidation of Chrysler and concluded that the sale of company assets, including various brands and stores, would cost $ 1.9 billion to $ 2.7 billion.

The first-lien lenders, holders of credits for a total of $ 6.9 billion, would probably fetch 9 to 38 percent or 654 million to $ 2.6 billion of their loans, according to the analysis.

Mr. Lauria, advocate for the Group of debtholder Chrysler, disagree with your analysis, saying that its clients would probably get more money in a liquidation. He argued that many of his customers were forced to accept a plan to reorganize Chrysler would give them some 29 cents on the dollar for their companies.

Lauria has criticized the President Obama for derisory comments he made last week, calling the client its speculators. in the wake of these observations, two members of the Group Perella Weinberg Partners, dissident and Oaktree Capital Management, signed the plan of the Government, which joins the four big banks containing about 70 percent of the $ 6.9 billion debt guaranteed. lawyers representing Chrysler and JPMorgan Chase, Bank of agent of the company, said proprietors of approximately 90 percent of that debt had agreed to deal with Fiat.

When you press to present a list of its customers, Lauria asked to do so under seal, saying that some of them had received death threats. Judge Gonzalez is scheduled to give a decision on that motion Tuesday as well.

Micheline Maynard and Zachery Kouwe contributed reporting.

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