IRS Revenue Ruling
2000-36

 Code Secs. 411, 401

<<FULL TEXT>>

26 CFR 1.411(d)-4: Section 411(d)(6) protected benefits.
(Also, section 401; section 1.401(a)(31)-1.)

Qualified plan; default rollover; involuntary cash-out. This ruling
provides that if plan participants are given adequate notice including
their right to elect a cash distribution, a qualified plan can be amended
to permit a default direct rollover under section 401(a)(31) of an
involuntary cash-out without there being a violation of section 411(d)(6)
of the Code.


REV. RUL. 2000-36

ISSUE

Will an amendment to change the default method of payment to a direct
rollover for involuntary distributions when a distributee fails
affirmatively to elect to make a direct rollover or to elect a cash
payment under the facts described below cause the plan to fail to satisfy
section 401(a)(31) or section 411(d)(6) of the Internal Revenue Code?


FACTS

Employer X maintains Plan A, a qualified defined contribution plan that
does not include any after-tax contributions or other amounts that would
not be included in gross income upon distribution. Plan A provides for an
involuntary distribution to an employee upon separation from service if
his or her vested account balance is $5,000 or less. Plan A includes a
direct rollover option for all distributions. Plan A provides that if a
separating employee's vested account balance is $5,000 or less, and the
separating employee does not elect a direct rollover either to another
qualified plan or to an individual retirement arrangement ("IRA"), the
vested account balance is to be paid in a single sum cash payment to the
employee.

Employer X amends Plan A to provide that the default form of payment of
any involuntary cash-out from Plan A greater than $1,000 but less than or
equal to $5,000 will be a direct rollover (an eligible rollover
distribution that is paid directly to an eligible retirement plan for the
benefit of the distributee) to an IRA, but that separating employees will
instead receive, a cash payment if they so elect. Under the amendment,
this default direct rollover applies only if the separating employee fails
to request affirmatively (1) a cash payment to that employee or (2) a
direct rollover to another qualified plan or an IRA designated by the
separating employee. The amendment also provides that in the case of a
default direct rollover, the plan administrator will select <<ENDNOTE 1>>
an IRA trustee, custodian, or issuer (the "trustee") that is unrelated, to
Employer X, establish the IRA with that trustee on behalf of any
separating employee who fails affirmatively to elect a direct rollover or
a cash payment, and make the initial investment choices for the account.

The administrative procedures of Plan A are changed with respect to any
section 402(f) notice provided on or after the effective date of the
amendment to a separating employee with a vested account balance greater
than $1,000 but not greater than $5,000. After the change, the plan
administrator will include with the section 402(f) notice an explanation,
as required by section 1.401(a)(31)-1 of the Income Tax Regulations, of
the default direct rollover (and other appropriate information such as the
name, address, and telephone number of the IRA trustee and information
regarding IRA maintenance and withdrawal fees and how the IRA funds will
be invested). The default direct rollover will occur not less than 30 days
and not more than 90 days after the section 402(f) notice with the
explanation of the default direct rollover is provided to the separating
employee.


LAW AND ANALYSIS

Section 401(a)(31) provides, in part, that a trust shall not constitute
a qualified trust unless the plan of which the trust is a part provides
that if the distributee of any eligible rollover distribution (i) elects
to have the distribution paid to an eligible retirement plan, and (ii)
specifies the eligible retirement plan to which the distribution is to be
paid, the distribution will be paid in a direct rollover to the eligible
retirement plan specified.

Section 402(f) requires a plan administrator, within a reasonable
period of time before making an eligible rollover distribution from an
eligible retirement plan, to provide to the recipient a written
explanation of the rollover provisions of section 401(a)(31) and section
402(c) (direct rollover and 60-day rollover), the 20-percent mandatory
withholding requirement under section 3405, and other tax provisions in
section 402 that apply to the eligible rollover distribution.

Section 411(d)(6)(A) provides, in part, that a plan participant's
accrued benefit may not be decreased by a plan amendment other than by an
amendment described in section 412(c)(8) of the Code or section 4281 of
the Employee Retirement Income Security Act of 1974. Section 411(d)(6)(B)
provides that an amendment eliminating or reducing an optional form of
benefit is treated as an amendment reducing an employee's accrued benefit
unless otherwise provided in Income Tax Regulations.

Section 1.401(a)(31)-1, Q&A-7 provides, in part, that a plan
administrator may establish a default procedure so that if a distributee
fails to make an affirmative election, he or she is treated as having made
a direct rollover election. However, that regulation requires the plan
administrator to first furnish the distributee with an explanation of the
default procedure and an explanation of the direct rollover option within
the time period provided in section 1.402(f)-1, Q&A-2 for the written
explanation described in section 402(f).

Section 1.402(f)-1, Q&A-1 prescribes the general rule with respect to
the contents of the written explanation (section 402(f) notice) that must
be provided to a distributee by a plan administrator before an eligible
rollover distribution is made. Section 1.402(f)-1, Q&A-2 provides
generally that the plan administrator must provide a distributee of an
eligible rollover distribution with a section 402(f) notice no less than
30 days and no more than 90 days before the date of the distribution.
Although a participant may, under the circumstances described in section
1.402(f)-1, Q&A-2, affirmatively elect to receive a distribution before
the expiration of the 30 days after the receipt of a section 402(f)
notice, that rule would not apply to a default direct rollover.

Section 1.411(d)-4, Q&A-1(a) defines a "section 411(d)(6) protected
benefit" as a benefit described in section 411(d)(6)(A), early retirement
benefits and retirement-type subsidies described in section
411(d)(6)(B)(i), and optional forms of benefit described in section
411(d)(6)(B)(ii) and provides that those benefits, to the extent that they
are accrued, are subject to the protections of section 411(d)(6).

The default status of an optional form of benefit is not a section
411(d)(6) protected benefit. Thus, an amendment to change Plan A's default
method of payment for an involuntary distribution from a direct cash
payment to a direct rollover does not violate section 411(d)(6). As
required in section 1.401(a)(31)-1, Q&A-7, Plan A's procedures provide
that each distributee subject to the default will receive an explanation
of the default procedure and the direct rollover option within a time
period before the default direct rollover that satisfies the timing
requirements of section 1.402(f)-1, Q&A-2. Thus, the provision of a direct
rollover as the default method of payment under the facts described above
does not cause Plan A to fail to satisfy section 401(a)(31).


HOLDING

An amendment to change the default method of payment to a direct
rollover as the default when a distributee fails affirmatively to elect to
make a direct rollover or to elect a cash payment under the facts
described above does not cause Plan A to fail to satisfy section
401(a)(31) or section 411(d)(6).


DRAFTING INFORMATION

The principal author of this revenue ruling is Michael Rubin of the Tax
Exempt and Government Entities Division. For further information regarding
this revenue ruling, call the Employee Plans' taxpayer assistance
telephone service at (202) 622-6074/6075 (not toll-free numbers) between
1:30 and 3:30 p.m. Eastern Time, Monday through Thursday. Mr. Rubin's
telephone number is (202) 622-6214 (also not a toll-free call).


<<ENDNOTES>>

1/ The Department of Labor (the "DOL") has advised Treasury and the
Service that, under Title I of the Employee Retirement Income Security Act
("ERISA"), in the context of a default direct rollover described in this
ruling, where the distribution constitutes the entire benefit rights of
the participant, the participant will cease to be a participant covered
under the plan within the meaning of 29 CFR section 2510.3-3(d)(2)(ii)(B),
and the distributed assets will cease to be plan assets within the meaning
of 29 CFR section 2510.3-101. The DOL also noted that the selection of an
IRA trustee, custodian or issuer and IRA investment for purposes of a
default direct rollover would constitute a fiduciary act subject to the
general fiduciary standards and prohibited transaction provisions of
ERISA. In addition, plan provisions governing the default direct rollover
of distributions, including the participant's ability to affirmatively opt
out of the arrangement, must be described in the plan's summary plan
description furnished to participants and beneficiaries.

<<END RULING>>

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