The Pension Benefit Guaranty Corporation (PBGC) recently issued a statement indicating that it supported the Department of Labor’s (DOL’s) Statement of Enforcement Policy relating to the return of excess Special Financial Assistance (SFA) payments made to multiemployer pension plans. In its Statement, the DOL confirmed that the provisions relating to SFA “did not prevent plans from refunding any excess payments they received through the SFA Program or excuse any failures to return SFA funds to which the plans are not entitled.” According to the DOL’s Statement, “The excess payments would not have been made to the plans absent the inaccurate census data.” You may be wondering, what caused the excess payment problem?
Inaccurate Census Data
The root of the SFA excess payments was inaccurate census data. In the application process, plans base their benefit projections needed to determine the amount of SFA to be paid to the plan. Some of the plans that applied using the Public Death Master File received an excess payment amount under the SFA Program. Since these excess payments would not have otherwise been paid, the DOL’s and PBGC’s position is that they must be refunded to the U.S. government.
Resolving the Problem
The DOL noted that the PBGC would assist the plans in the recalculation of their SFA entitlements and the amount of excess payments. One concern some plans had with the refunding of excess SFA payments, is that it would violate the Employee Retirement Income Security Act (ERISA) Section 403(c)(1) which stipulates that plan assets be held for “the exclusive purpose of providing benefits to participants…and defraying reasonable expenses of administering the plan,” or the duties of prudence and loyalty as established in ERISA Section 403(c)(1). The DOL and PBGC noted that the refunding requirements also would not violate the Internal Revenue Code’s (IRS’) related provisions.
Enforcement Action
According to the DOL’s Statement of Enforcement Policy Regarding Return of Excess Special Financial Assistance, the Department did not intend to take any enforcement action against plans that repay excess SFA amounts based on inaccurate census data, and which are corrected through the PBGC’s use of the Public Death Master File. The DOL also wanted to assure plans that that it did not view the excess payment problem as a failure of the plans or indicative of their failure to take proper care in connection to the SFA application process.
