| | 78-23 |
| | October 24, 1978 |
| | REFERENCE: |
| | 4021. Plans Covered |
| | OPINION: |
| | This is in response to your letter of September 6, 1978, to this Office concerning the coverage of Puerto Rico defined |
| | benefit plans under the insurance provisions of Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). |
| | You point out that Puerto Rico situs trusts under certain Puerto Rican pension plans are treated, under § 1022(i)(1) of |
| | ERISA, as organizations described in § 401(a) of the Internal Revenue Code (the "Code"), and thus are exempt from U.S. |
| | income taxes under § 501(a) of the Code. You have asked whether, in the case of defined benefit plans, such a |
| | qualification for income tax exemption by reason of the application of § 1022(i)(1) satisfies the tax qualification |
| | Section 4021 of ERISA applies to a plan which "is, or has been determined by the Secretary of the Treasury to be, a plan |
| | described in section 401(a) of the Internal Revenue Code of 1954, or which meets . . . the requirements of section |
| | 404(a)(2) . . . ." This section also applies to a plan "which has, in practice," met such tax qualification requirements for the |
| | past five plan years and which is maintained by an employer engaged in interstate commerce. |
| | Section 501(a) of the Code grants U.S. tax exemption to an "organization described in . . . section 401(a) of the Code." |
| | Section 1022(i)(1) provides: |
| | (i) Certain Puerto Rican Pension, Etc., Plans To Be Exempt From Tax Under Section 501(a). - |
| | (1) General Rule. - Effective for taxable years beginning after December 31, 1973, for purposes of section 501(a) of the |
| | Internal Revenue Code of 1954 (relating to exemption from tax), any trust forming part of a pension, profit-sharing, or |
| | stock bonus plan all of the participants of which are residents of the Commonwealth of Puerto Rico shall be treated as an |
| | organization described in section 401(a) of such Code if such trust - |
| | (A) forms part of a pension, profit-sharing, or stock bonus plan, and |
| | (B) is exempt from income tax under the laws of the Commonwealth of Puerto Rico. |
| | * * * (Emphasis added) |
| | Both the title and the underlined language of this subsection indicate that Puerto Rican pension trusts are treated as |
| | organizations described in § 401(a) of the Code only for purposes of § 501(a), and not for purposes of § 4021 of |
| | ERISA. The sole effect of § 1022(i)(1), therefore, is to give certain Puerto Rican pension trusts the benefit of tax- |
| | exempt treatment accorded qualified U.S. trusts by § 501(a). An analysis of the legislative history of § 1022(i)(1) |
| | reveals that Congress wished to enable Puerto Rican plan administrators to diversify their investment portfolios through |
| | the purchase of U.S. securities without encountering the adverse tax consequences which they would have otherwise |
| | suffered because of their ineligibility for a § 501(a) exemption. |
| | The language of § 4021 of ERISA indicates that compliance with the requirements of § § 401(a) or 404(a)(2) of the Code |
| | is mandatory for Title IV coverage. The legislative history of § 4021 reveals that Congress regarded the tax qualification |
| | requirements of Title II as a prerequisite to Title IV converage. See H.R. Rep. No. 93-1280, 93d Cong., 2d Sess., 367 |
| | In conclusion, Puerto Rican pension plans whose trusts have qualified for tax exemption through § 1022(i)(1) of ERISA do |
| | not thereby satisfy the Title IV coverage requirements of § 4021. In order to meet the requirements of § 4021 Puerto |
| | Rican plans must either (1) meet, or have been determined by the Secretary of the Treasury to meet, the requirements of |
| | § 401(a) of the Code, or (2) have met, in practice, the requirements of § 401(a) of the Code for the past five plan |
| | We hope this has been of assistance. |
| | Henry Rose |
| | General Counsel |