during the late 90's when you could use gatt or pbgc rates the employer did not do gatt either timely or correctly. is there any way to still use the gatt rates? thanks

Not only is there a way, but you are REQUIRED to after the last plan year ending in 1999. Now of course I think you mean something different. The document in question has PBGC rates for 417(e) and you want to know if they can be amended to the 30-year Treasury rate. While you are required to consider the 30-year Treasury rate, of course the PBGC rates will yield a higher lump sum and so the comparison is moot. So in short the answer is yes, the same anti-cutback waivers are available now versus then, you just need to amend the plan.

Implicit in Blinky's comment is the reminder that the 417 definition of lump sum is a minimum, so your plan could be more generous. Even then, the document should include the language defining this minimum.

im sorry i probably didn tmake the facts clear. the plan was terminated in the l late 90's. recieved a determination letter but distribution has not been made.

we have been told by 4 erisa attorneys that there is no way to go back and retroactively amend for gatt since at that time the gatt amendment was not mandatory.
thank sjeff

No distribution? Your termination is void. Check the letter. Check the plan provisions.
Start over with the termination process.

Sue : What are your trying to accomplish? Do you want to reduce the distributions payable to the plan participants by substituting the Gatt rates? What was the basis for the 4 opinions that the Gatt rates cant be used? When the plan was terminated it was required to state the amounts due to each participant as part of terminaton process. I am not sure that the failure to distribute assets voids the accrued benefits payable on the date of termination because the cut back rule prevents a reduction in the accrued benefit because of a plan amendment.

yes we did want to use the gatt rates but way later and before distribution we foun dout the gatt amendment was neither timely nor accurate.is it possible to amend the termination dat e?

As pax mentioned, you have issues with the plan being terminated at all. Read Rev. Rul. 89-87 and note that plan assets generally must be distributed within one year of the termination date. Extensions are considered for reasonable delay, but 6+ years!? If the IRS does consider the plan not terminated, you have a whole host of issues like the need for actuarial valuations and potential contributions since the termination (and I use that term loosely) and the need to update the plan document for law changes. I seriously hope the benefits were frozen along with the termination or you could also have additional accruals. If the plan was TH, you definitely have additional accruals.

Now as for amending for GATT, while technically there's an anti-cutback exemption, I think you have issues because the benefits were probably not paid out timely. A participant could raise issue with an amendment now that reduces a lump sum that should have been paid years ago.



The accrued benefits are definitely not reduced.

Before mbozek says it, this plan needs competent ERISA counsel, soon. If the plan administrator needs help finding counsel, I suggest asking the plan's actuary for two or three recommendations.