Chapter 2.35
DEFERRED COMPENSATION PLAN
Sections:
2.35.050 Deferral of compensation.
2.35.060 Commencement of benefits.
2.35.070 Rollovers and transfers.
2.35.090 Loans to participants.
2.35.110 Amendment and termination.
2.35.010 Introduction.
The board of directors of the Western Municipal Water District resolves that the deferred compensation plan and the trust agreement for the deferred compensation plan attached to Resolution 2507 and incorporated herein by this reference are hereby established as the Western Municipal Water District deferred compensation plan and the trust agreement for the Western Municipal Water District deferred compensation plan, that the effective date of said revised plan shall be November 7, 2007, and shall apply to compensation earned after said effective date. The district consents to the participation of any employee of the district in accordance with the participation requirements set forth in the plan. (Res. 2507, 2007)
2.35.020 Recitals.
A. Western Municipal Water District deferred compensation plan (hereinafter referred to as the “plan”) was adopted on November 4, 1998, by Western Municipal Water District (hereinafter the “employer”).
B. It is necessary for the employer to amend the plan to comply with applicable provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”), the Job Creation and Workers Assistance Act of 2002 (“JOCWA”), the Pension Protection Act of 2006 (“PPA”), and final and proposed regulations issued by the Internal Revenue Service under Section 457 of the Internal Revenue Code.
C. The employer hereby amends and restates the plan, effective November 7, 2007. (Res. 2507, 2007)
2.35.030 Definitions.
The following terms, when used herein, shall have the following meanings, unless a different meaning is clearly required by the context:
A. “Account” or “account balance” shall mean the bookkeeping account maintained with respect to each participant which reflects the value of the deferred compensation credited to the participant, including the participant’s annual deferral amounts, the earnings or losses allocable to the participant, any transfers for the participant’s benefit, and any distribution made to the participant or participant’s beneficiary. The “account balance” shall also include any rollover contributions and plan-to-plan transfers made for a participant, any separate account established for a beneficiary after a participant’s death, and any account or accounts established for an alternate payee (as defined in Section 414(p)(8) of the Code).
B. “Beneficiary” means the designated person(s) or estate entitled to receive benefits under this plan after the death of a participant.
C. “Code” means the Internal Revenue Code of 1986, as now in effect or as amended, and including all regulations promulgated pursuant thereto.
D. “Compensation” means all cash compensation for services rendered to the employer, including salary, wages, fees, commissions, bonuses, and overtime pay, that is includable in the employee’s gross income for the plan year, plus amounts that would be otherwise includable in the employee’s gross income for the plan year but for a compensation reduction election under Section 125, 132(f), 401(k), 403(b), or 457(b) of the Code.
Effective for plan years beginning on or after July 1, 2007, “compensation” shall also include any amount which is paid within two and one-half months following a severance from employment or by the end of the plan year in which the severance from employment occurs, including the following types of payments:
1. Regular Pay. Compensation attributable to services performed by employee during the employee’s regular working hours as well as outside the employee’s regular working hours (including overtime, commissions, bonuses, or other similar payments) and which would have been paid prior to the employee’s severance from employment if the employee had continued in employment with employer.
2. Accrued Paid Leave. Amounts paid for unused accrued bona fide sick, vacation or other leave provided the employee would have been able to use the leave prior to severance from employment.
3. Deferred Compensation. Compensation paid to the employee pursuant to a nonqualified deferred compensation plan sponsored by the employer and includible in the employee’s gross income so long as the payment would have been made if the employee had continued in employment with employer.
“Compensation” shall not include any severance payments or salary continuation payments paid by the employer due to military service or disability.
E. “Deferral amount” means the annual amount of compensation that a participant elects to defer in any plan year pursuant to his or her executed participation agreement.
F. “Eligible deferred compensation plan” means any eligible deferred compensation plan which is maintained by an eligible employer as defined in Section 457(b)(e)(1)(A) of the Code and includes this plan, among others.
G. “Eligible employee” means an officer or common law employee performing services for employer.
H. “Employer” means the Western Municipal Water District.
I. “Includable compensation” means a participant’s actual wages or salary paid by the employer during the plan year within the meaning of Code Section 415(c)(3) and subject to a maximum of $200,000 (or such higher maximum as may apply under Section 401(a)(17) of the Code). The amount of includable compensation is determined without regard to any community property laws. Any amounts of compensation payable to the participant by employer, including post-severance payments attributable to compensation for services which would have been otherwise payable to the participant if the participant had continued in the employ of employer and payments for accrued bona fide sick, vacation or other paid leave, shall be considered “includable compensation,” provided such payments are made within two and one-half months after the participant’s severance from employment.
J. “Normal retirement age” means the age designated by the participant which is between age 70‑1/2 and the earliest date at which one may retire under the employer’s basic pension plan without the employer’s consent and receive immediate retirement benefits, without incurring an actuarial or similar reduction in benefits.
K. “Participant” means an eligible employee or former employee who is or has been deferring compensation under the plan in accordance with the provisions of WMWDC 2.35.040 and who has not received a distribution of his or her entire benefit under the plan.
L. “Participation agreement” means a written agreement between the participant and the employer to defer receipt by the participant of compensation not yet earned. The agreement shall state the amount of compensation to be withheld from a participant’s paycheck.
M. “Payroll period” means the work period for which a paycheck is issued by the employer to the employee.
N. “Plan” means the Western Municipal Water District deferred compensation plan, in its present form, or as amended from time to time.
O. “Plan administrator” or “administrator” shall mean the employer or other person(s) named in WMWDC 2.35.100(B).
P. “Plan year” means the 12-month period beginning January 1st and ending on December 31st of each year.
Q. “Severance from employment” means the date that the employee dies, retires, becomes disabled or otherwise has experienced a severance from employment with the employer for any reason, as determined by the administrator. An employee shall be treated as having experienced a severance from employment during a period of qualified military service (as described under Code Section 414(u)).
R. “Trust agreement” shall mean the written agreement made by and between the employer and the trustee under which the trust is maintained.
S. “Trust” shall mean the trust established pursuant to WMWDC 2.35.100(C) and the accompanying trust agreement.
T. “Trustee” shall mean the trustee of the successor of such trustee named under the trust agreement executed concurrently with this plan.
U. “Valuation date” shall mean the last day of the plan year. (Res. 2668 § 1 (Exh. A §§ 1, 2), 2010; Res. 2507, 2007)
2.35.040 Participation.
A. Eligibility. Each eligible employee will become eligible to participate in this plan and defer compensation hereunder upon the completion of three months of employment.
B. Election Required for Participation. An eligible employee may elect to become a participant by executing a participation agreement to defer a portion of his or her compensation, and have that amount contributed as an annual deferral amount on his or her behalf, and filing it with the administrator. Such election shall be made on the form of participation agreement provided by the administrator under which the employee agrees to be bound by all the terms and conditions of the plan. Any such election shall remain in effect until a new participation agreement is filed.
C. Commencement of Participation. A salary deferral election shall be effective on the first day of the month in which compensation earned by the participant during the payroll period commencing in the calendar month next following the date of the participant’s election, provided the employee executed the participation agreement and delivered it to the administrator at least 30 days before the beginning of such month.
D. Information Provided by Participant. Each employee enrolling in the plan shall provide to the administrator at the time of initial enrollment, and later if there are any changes, any information necessary or advisable for the administrator to administer the plan, including without limitation, whether the employee is a participant in any other eligible deferred compensation plan. (Res. 2507, 2007)
2.35.050 Deferral of compensation.
A. Deferred Amounts.
1. Salary Reduction. Each participation agreement shall specify the percentage of the participant’s gross compensation that is to be deferred and withheld from the compensation otherwise payable to the participant for each payroll period while the participation agreement is in effect.
2. Deferral Procedure. Pursuant to a participation agreement, each participant’s annual deferral amount shall be deducted from his or her paychecks at approximately equal increments throughout the year, or according to any other method approved of by the administrator.
B. Deferral of Accrued Sick, Vacation and Back Pay. A participant may elect to defer compensation attributable to unpaid and accumulated sick pay, accumulated vacation pay, and back pay, provided all of the following requirements are met:
1. The election to defer said amounts is completed and filed with the administrator prior to the beginning of the month in which the benefits would be otherwise paid or made available to the participant;
2. Compensation is bona fide accumulated sick, vacation or back pay, or any combination thereof, and, if applicable, would otherwise be payable within two and one-half months following the employee’s severance from employment with the employer; and
3. The deferral amount shall not cause the participant to exceed the maximum deferral amount under subsection C of this section.
C. Maximum Deferral.
1. Primary Limitation. Except to the extent permitted under subsections (C)(2) and (3) of this section, the total deferral amount that may be contributed to a participant’s account for any taxable year shall not exceed the lesser of:
a. The “applicable dollar amount” determined for the plan year pursuant to Section 457(e)(15) of the Code, as follows:
|
2002 |
$11,000 |
|
2003 |
$12,000 |
|
2004 |
$13,000 |
|
2005 |
$14,000 |
|
2006 or thereafter |
$15,000 |
For plan years beginning after December 31, 2006, the “applicable dollar amount” shall be adjusted in accordance with Section 457(d)(15) of the Code; or
b. One hundred percent of the participant’s includable compensation.
For plan years beginning after December 31, 2006, the amount specified in subsection (C)(1)(a) of this section shall be adjusted in accordance with Section 457(d)(15) of the Code.
2. Catch-Up Limitation.
a. The maximum total deferral amount for each of a participant’s last three taxable years ending before he or she attains normal retirement age is the lesser of:
i. An amount equal to twice the amount of the “applicable dollar amount” specified in subsection (C)(1)(a) of this section; or
ii. The primary limitation amount determined under subsection (C)(1) of this section for the current year, plus so much of the primary limitation amount that was not utilized in prior taxable years in which the employee was eligible to participate in the plan or another eligible deferred compensation plan sponsored by the employer, beginning after December 31, 1977. A participant may use a prior year only if the total deferral amounts under the plan in existence during that year were subject to the maximum deferral amount described in Code Section 457(b)(3) as in effect prior to and after January 1, 2002.
b. The catch-up limitation is available to a participant only during one three-year period. If a participant uses the catch-up limitation and then postpones normal retirement age or returns to work after retiring, the limitation shall not be available again before a subsequent retirement.
3. Additional Elective Deferral. All participants who have attained the age of 50 years before the close of the plan year shall be eligible to defer additional amounts of compensation in accordance with, and subject to the limitations of, Section 414(v) of the Code. In the case of participants who have attained the age of 50 years and are eligible to use the catch-up limitation provided under subsection (C)(2) of this section, such participants shall be eligible to defer an amount equal to the greater of (a) the amount permitted under this subsection (C)(3); or (b) the amount permitted under subsection (C)(2) of this section. Such additional elective deferrals shall not be taken into account for purposes of the “applicable dollar amount” specified in subsection (C)(1)(a) of this section in effect for the plan year.
4. Coordination with Other Plans. If a participant participates in more than one eligible deferred compensation plan, the aggregate total deferral amounts under all plans shall be subject to the maximum limitations specified in this subsection C. If a participant is eligible to defer additional amounts under the “special Section 457 catch-up option” prescribed in subsection (C)(2) of this section, under more than one eligible deferred compensation plan, and the applicable catch-up amount is not the same for each plan for a plan year, said participant shall be permitted to defer the catch-up amount under the plan which permits the largest catch-up amount for the participant.
D. Minimum Deferral. The minimum dollar amount deferred shall not be less than $10.00 per payroll period.
E. Changing Deferrals. A participant may change deferral amounts with respect to compensation not yet earned by executing a new participation agreement at least 30 days prior to the beginning of the month in which such change is effective.
F. Revocation or Suspension of Deferrals.
1. Revocation. A participant may revoke the deferral of compensation by giving the administrator written notice of such revocation at least 10 days prior to the effective date of such revocation. Such revocation may not occur except at quarterly intervals selected by the administrator. Following revocation, a participant may reinstate deferral amounts by executing a new participation agreement and delivering it to the administrator. Reinstatement shall be effective on the first day of the month following completion of the new agreement and acceptance by the administrator but in no event sooner than 30 days following the effective date at the prior revocation.
2. Suspension. Deferrals of compensation pursuant to the participation agreement shall automatically be suspended for any month in which there is insufficient compensation available to make the entire deduction agreed upon, and automatically reinstated in the month that compensation is sufficient to make up the agreed upon deferral of compensation.
G. Rollovers Disregarded in Determining Maximum Deferral Amount. Any rollover contribution (and any earnings allocable thereto) received from an eligible plan on behalf of a participant during a plan year shall not be included for purposes of determining the participant’s maximum deferral amount under subsection C of this section for the plan year.
H. Excess Deferrals. If a participant’s deferrals for a calendar year would be more than permitted under this section, including additional deferrals pursuant to subsection (C)(2) or (3) of this section, such amounts shall be considered excess deferrals and the employer shall not withhold any additional compensation on behalf of such participant. In the event the plan administrator determines that a participant’s deferrals contributed to the plan for a calendar year exceed the annual deferral limitation under Section 457(e), the plan administrator shall distribute to the participant such excess deferrals, as adjusted for allocable income, as soon as administratively practicable. Distributions shall be made without regard to any requirements which might otherwise preclude distribution only to the extent allowed under the Code, Treasury Regulations, and other interpretative pronouncements.
I. Leave of Absence – Disability. Unless an election is otherwise revised or revoked, if a participant is absent from work by leave of absence, his or her deferral amounts under the plan shall continue to the extent that compensation continues to be paid to the participant. A disabled participant may elect to contribute deferral amounts during any portion of the period of his or her disability to the extent that he or she has actual compensation (other than disability benefits) from which to make contributions to the plan, provided he or she has not experienced a severance from employment.
J. Military Leave. An employee whose employment is interrupted by or who is on a leave of absence for qualified military service under Code Section 414(u) may elect to make additional deferral amounts upon resumption of employment with the employer equal to the maximum annual deferral amounts that the employee could have elected during that period if the employee’s employment with the employer had continued (at the same level of compensation) without the interruption or leave, reduced by the deferral amounts, if any, actually made for the employee during the period of military leave. This right applies for five years following the resumption of employment (or, if sooner, for a period equal to three times the period of the interruption or leave).
Effective for years beginning after December 31, 2008, an individual receiving from the employer a differential wage payment, as defined in Code Section 3401(h)(2), shall be treated as an employee of the employer and the differential wage payments shall be treated as compensation for purposes of determining vesting and benefit accrual. The plan shall not be treated as failing to meet the requirements of any provision described in Code Section 414(u)(1)(C) by reason of any contribution or benefit which is based on the differential wage payment. (Res. 2668 § 1 (Exh. A § 3), 2010; Res. 2507, 2007)
2.35.060 Commencement of benefits.
A. Eligibility for Payment. Payments from the plan shall not be made earlier than upon attainment of normal retirement age or when the participant incurs a severance from employment. Benefit payments to a participant shall commence upon the date elected by participant. Unless the participant elects an earlier date, distribution shall commence as soon as administratively feasible following the participant’s normal retirement age or other severance from employment.
B. Election to Commence Distribution. The administrator shall provide the following upon a participant or beneficiary becoming eligible to receive benefits under the plan:
1. Notice Requirements. A participant or beneficiary shall be furnished a notice which provides an explanation of the following:
a. The participant’s right to defer the commencement of benefits until the normal retirement date pursuant to subsection (C)(4) of this section, if applicable;
b. The form of benefits available under the plan in accordance with subsection C of this section;
c. The option to transfer a lump sum distribution to an eligible plan in accordance with subsection D of this section;
d. The mandatory income tax withholding provisions applicable if the distribution is not transferred to an eligible plan;
e. The provisions under which the distribution will not be subject to tax if transferred to an eligible plan within 60 days after the date on which the participant received the distribution; and
f. The applicable rules on rollover and taxation of a lump sum distribution under Section 402(d) and (e) of the Code.
2. Timing. The notice shall be provided no less than 30 days, nor more than 180 days, prior to the first day of the first period for which an amount is paid. An election shall be given within the 180-day period ending on the first day of the first period for which an amount is paid and shall include an acknowledgment of the effect of such election.
3. Election. An individual may elect the form of payment of benefits, and may revoke that election (with or without a new election) at any time before 30 days preceding the benefit commencement date by notifying the administrator in writing, subject to the administrator’s approval. The failure of a participant or beneficiary to elect a distribution while a benefit is immediately distributable shall be deemed an election to defer commencement of payment under subsection (C)(4) of this section.
4. Waiver of 30-Day Period for Distribution Consent. The plan may distribute a benefit less than 30 days after providing the participant notice of the distribution option, if the participant affirmatively elects a distribution. The participant must be notified that the participant has the opportunity to elect a distribution for at least 30 days after receiving the notice.
C. Forms of Payment. If the value of a participant’s account does not exceed $5,000 as of the date of distribution, the account shall be paid in a lump sum payment. If the value of the account exceeds $5,000, the participant or beneficiary may elect payment in one of the following forms:
1. Lump Sum. A single payment of the entire balance in a participant’s account.
2. Life Annuity. Periodic payments contingent on the life expectancy of the participant or beneficiary pursuant to the terms of a life annuity purchased from an insurance company.
3. Installments. Annual or more frequent periodic payments over a specified period of time; provided, that payments made over a period of more than one year shall only be made in substantially nonincreasing amounts (paid not more frequently than monthly).
4. Deferred Benefit. In the event of termination prior to normal retirement age, the participant may elect to have payment of benefits deferred until the participant reaches normal retirement age.
Distribution from this plan must be made primarily for the benefit of participants. Any payment form specified above must be such that benefits payable to a beneficiary are not more than incidental. The determination of whether a benefit payable to a beneficiary shall be considered incidental shall be determined in accordance with Section 401(a)(9)(G) of the Code and regulations thereunder. In the case of distributions which begin before the death of the participant, all remaining benefits shall be distributed after the death of the participant at least as rapidly as under the method of distribution set forth in the immediately preceding sentence as of the date of the participant’s death. Also, in the case of distributions which do not begin before the death of the participant, all benefits payable to a beneficiary of such participant shall be paid in full within (a) the life of the beneficiary, if the beneficiary is the participant’s surviving spouse, or (b) within 15 years after the death of a participant for all other beneficiaries.
D. Direct Rollovers. A participant or the surviving spouse of a participant (or a former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code) may elect, at the time and in the manner prescribed by the administrator, to have any portion of any eligible rollover distribution paid directly to an eligible plan specified by the participant in a direct rollover. The participant must provide the administrator with sufficient information to identify the eligible plan as well as the trustee or custodian of the funds to whom the transfer is to be made.
For purposes of this subsection, the following definitions apply:
1. Eligible Plan. “Eligible plan” shall mean an eligible retirement plan described in Section 402(c)(8)(B) of the Code and shall include: (a) an individual retirement account described in Section 408(a); (b) an individual retirement annuity described in Section 408(b); (c) a qualified trust; (d) an annuity plan described in Section 403(a); (e) an eligible deferred compensation plan described in Section 457(b) which is maintained by an eligible employer described in Section 457(e)(1)(A); and (f) an annuity contract described in Section 403(b). The definition of “eligible plan” shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code. In the case of a distribution to a beneficiary who is not the spouse or former spouse of the participant, the definition of “eligible plan” shall mean an individual retirement account described in Section 408(a).
2. Eligible Rollover Distribution. An “eligible rollover distribution” shall mean any distribution of all or any portion of the balance to the credit of the participant or beneficiary, except that it shall not include:
a. Any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancies) of the distributee and the distributee’s designated beneficiary, or for a specified period of 10 years or more; or
b. Any distribution required under Section 401(a)(9) of the Code; or
c. Any hardship distribution described in Section 401(k)(2)(b)(i)(iv) of the Code; or
d. The portion of any distribution that is not includable in the gross income of the distributee (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities).
E. Unforeseeable Emergency Distribution. A participant may request an emergency withdrawal by submitting a written request to the administrator, accompanied by evidence that his or her financial condition warrants an advance release of funds and results from an unforeseeable emergency which is beyond the participant’s control as provided herein.
1. Distribution. If the participant has an unforeseeable emergency before retirement or other severance of employment, the participant may elect to receive a lump sum distribution equal to the amount requested or, if less, the maximum amount determined by the administrator to be permitted to be distributed under this subsection E.
2. Unforeseeable Emergency Defined. An “unforeseeable emergency” means a severe financial hardship of the participant resulting from: an illness or accident of the participant, the participant’s spouse, the participant’s dependent (as defined in Section 152(a) of the Code) or the participant’s beneficiary; loss of the participant’s property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by homeowner’s insurance, e.g., as a result of a natural disaster); the need to pay for the funeral expenses of the participant’s spouse, dependent, or beneficiary; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the participant’s control or as otherwise defined by the Internal Revenue Service in regulations or rulings concerning Section 457 of the Code.
Unforeseeable emergencies may include the imminent foreclosure of or eviction from the participant’s primary residence or payment of medical expenses (including nonrefundable deductibles or prescription drug medication). Unforeseeable emergencies shall not include the payment of college tuition or purchase of a home.
3. Distribution Standard. Whether circumstances constitute an unforeseeable emergency depends on the facts of each case, but, in any case, payment may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation by insurance or otherwise; by liquidation of the participant’s assets, to the extent that liquidation itself would not cause severe financial hardship; or by cessation of deferral under the plan.
4. Amount Necessary to Satisfy Emergency Need. The administrator shall review the request and determine whether payment of any amount is justified. If payment is justified, the amount shall be limited to an amount reasonably needed to meet the emergency, including any amounts necessary to pay any taxes or penalties reasonably anticipated to result from the distribution.
5. Distributions After Benefit Commencement. Once regular installment payments to a participant have commenced under the plan, the participant may request payment acceleration if the participant suffers an unforeseeable emergency, as defined in subsection (E)(2) of this section. The administrator may permit an additional emergency payment, provided the amount distribution does not exceed the amount needed to meet the emergency. Any amount remaining in the participant’s account after such emergency distribution shall be distributed in accordance with the provisions of this plan.
F. In-Service Distributions. A participant may elect to receive, or the administrator may direct without the participant’s consent, a distribution of benefits in the plan, in the following circumstances:
1. The total amount payable does not exceed $5,000; however, for distributions occurring on or after March 28, 2005, $5,000 shall be replaced with $1,000;
2. No amount has been deferred under the plan with respect to the participant for a two-year period ending on the date of distribution; and
3. No prior distribution has been made under this section.
4. The value of a participant’s account for purposes of this subsection F shall be determined without regard to that portion of the account balance that is attributable to rollover contributions (and earnings allocable thereto) within the meaning of Section 457(e)(16) of the Code.
G. Distribution under Qualified Domestic Relations Order. An “alternate payee” under a “qualified domestic relations order” (“QDRO”) shall be entitled to benefits in accordance with the requirements of this section, except that a distribution pursuant to a QDRO will be permitted whether or not the affected participant has experienced a severance from employment or attained the “earliest retirement age” under the plan. For purposes of this subsection, “qualified domestic relations order,” “alternate payee,” and “earliest retirement age” shall have the meanings set forth in Code Section 414(p).
H. Death Benefit Distributions. Commencing in the calendar year following the calendar year of the participant’s death, the account shall be paid to the participant’s designated beneficiary in a lump sum payment. However, if the account exceeds $5,000, the beneficiary may elect that distribution be made pursuant to one of the optional forms of payment provided under subsection C of this section or in the form of a direct rollover pursuant to subsection (H)(1) or (2) of this section.
1. Spousal Rollovers. A designated beneficiary who is the surviving spouse of the deceased participant may elect that distribution be made in a direct rollover in accordance with subsection D of this section.
2. Direct Rollovers for Nonspouse Beneficiaries. A designated beneficiary who is not the surviving spouse of the deceased participant may elect a direct rollover of the benefits at the time and in the manner prescribed by the plan administrator. Any such distribution may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code established for the purpose of receiving the distribution on behalf of the designated beneficiary and treated as an inherited IRA within the meaning of Section 408(d)(3)(C) of the Code. The beneficiary must provide the plan administrator with sufficient information to identify the status of the inherited IRA as well as the custodian of the funds to whom the direct transfer is to be made. Any distribution made in accordance with this provision shall be considered an “eligible rollover distribution” excludable from gross income for the year in which payment is made under Code Section 402(c)(1). If a participant’s designated beneficiary is a trust, the trustee of such trust shall be permitted to elect a direct rollover to an individual retirement account in accordance with this subsection provided the beneficiaries of the trust otherwise satisfy the requirements to be designated beneficiaries within the meaning of Code Section 401(a)(9)(E) and the regulations issued thereunder.
I. Required Minimum Distributions. Notwithstanding any other provisions to the contrary, the distribution of a participant’s accounts shall meet the requirements of this subsection and Code Section 401(a)(9) and the Regulations thereunder. These minimum distributions shall be calculated each year by the plan administrator and shall be distributed in accordance with this subsection.
1. Time and Manner of Distribution.
a. Required Beginning Date. The participant’s accounts will be distributed, or begin to be distributed, to the participant no later than the participant’s required beginning date.
b. Death of Participant Before Distributions Begin. If the participant dies before distributions begin, the participant’s accounts will be distributed, or begin to be distributed, no later than as follows:
i. If the participant’s surviving spouse is the participant’s sole designated beneficiary, distributions to the surviving spouse will begin by December 31st of the calendar year immediately following the calendar year in which the participant died, or by December 31st of the calendar year in which the participant would have attained age 70-1/2, if later.
ii. If the participant’s surviving spouse is not the participant’s sole designated beneficiary, distributions to the designated beneficiary will begin by December 31st of the calendar year immediately following the calendar year in which the participant died.
iii. If there is no designated beneficiary as of September 30th of the year following the year of the participant’s death, the participant’s accounts will be distributed by December 31st of the calendar year containing the fifth anniversary of the participant’s death.
iv. If the participant’s surviving spouse is the participant’s sole designated beneficiary and the surviving spouse dies after the participant but before distributions to the surviving spouse begin, this subsection (I)(1)(b), other than subsection (I)(1)(b)(i), will apply as if the surviving spouse were the participant.
For purposes of this subsection (I)(1)(b) and subsection (I)(3) of this section, unless subsection (I)(1)(b)(iv) of this section applies, distributions are considered to begin on the participant’s required beginning date. If subsection (I)(1)(b)(iv) of this section applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under subsection (I)(1)(b)(i) of this section. If distributions under an annuity purchased from an insurance company irrevocably commence to the participant before the participant’s required beginning date (or to the participant’s surviving spouse before the date distributions are required to begin to the surviving spouse under subsection (I)(1)(b)(i) of this section), the date distributions are considered to begin is the date distributions actually commence.
c. Forms of Distribution. Unless the participant’s accounts are distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with subsections (I)(2) and (3) of this section. If the participant’s accounts are distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Section 401(a)(9) of the Code and the Treasury Regulations issued thereunder.
2. Required Minimum Distributions during Participant’s Lifetime.
a. Amount of Required Minimum Distribution for Each Distribution Calendar Year. During the participant’s lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of:
i. The quotient obtained by dividing the participant’s account balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the participant’s age as of the participant’s birthday in the distribution calendar year; or
ii. If the participant’s sole designated beneficiary for the distribution calendar year is the participant’s spouse, the quotient obtained by dividing the participant’s account balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the participant’s and spouse’s attained ages as of the participant’s and spouse’s birthdays in the distribution calendar year.
b. Lifetime Required Minimum Distributions Continue through Year of Participant’s Death. Required minimum distributions will be determined under this subsection (I)(2) beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the participant’s date of death.
3. Required Minimum Distributions After Participant’s Death.
a. Death On or After Date Distributions Begin.
i. Participant Surviving by Designated Beneficiary. If the participant dies on or after the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the participant’s death is the quotient obtained by dividing the participant’s account balance by the longer of the remaining life expectancy of the participant or the remaining life expectancy of the participant’s designated beneficiary, determined as follows:
(A) The participant’s remaining life expectancy is calculated using the age of the participant in the year of death, reduced by one for each subsequent year.
(B) If the participant’s surviving spouse is the participant’s sole designated beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the participant’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For distribution calendar years after the year of the surviving spouse’s death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.
(C) If the participant’s surviving spouse is not the participant’s sole designated beneficiary, the designated beneficiary’s remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the participant’s death, reduced by one for each subsequent year.
ii. Nondesignated Beneficiary. If the participant dies on or after the date distributions begin and there is no designated beneficiary as of September 30th of the year after the year of the participant’s death, the minimum amount that will be distributed for each distribution calendar year after the year of the participant’s death is the quotient obtained by dividing the participant’s account balance by the participant’s remaining life expectancy calculated using the age of the participant in the year of death, reduced by one for each subsequent year.
b. Death Before Date Distributions Begin.
i. Participant Surviving by Designated Beneficiary. If the participant dies before the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the participant’s death is the quotient obtained by dividing the participant’s account balance by the remaining life expectancy of the participant’s designated beneficiary, determined as provided in subsection (I)(3)(a) of this section.
ii. No Designated Beneficiary. If the participant dies before the date distribution begins and there is no designated beneficiary as of September 30th of the year following the year of the participant’s death, distribution of the participant’s accounts will be completed by December 31st of the calendar year containing the fifth anniversary of the participant’s death.
iii. Death of Surviving Spouse Before Distributions to Surviving Spouse are Required to Begin. If the participant dies before the date distributions begin, the participant’s surviving spouse is the participant’s sole designated beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under subsection (I)(1)(b)(i) of this section, this subsection (I)(3)(b) will apply as if the surviving spouse were the participant.
4. Application of Five-Year Rule.
a. Election by Participant or Beneficiary. A participant or beneficiary may elect on an individual basis whether the five-year rule or the life expectancy rule in subsections (I)(1)(b) and (I)(3)(b) of this section applies to distributions after the death of a participant who has a designated beneficiary. The election must be made no later than the earlier of September 30th of the calendar year in which distribution would be required to begin under subsection (I)(1)(b) of this section, or by September 30th of the calendar year which contains the fifth anniversary of the participant’s (or, if applicable, the surviving spouse’s) death. If neither the participant nor the beneficiary makes an election under this paragraph, distributions will be made in accordance with subsections (I)(1)(b) and (I)(3)(b) of this section.
b. Election by Current Beneficiary. A designated beneficiary who is receiving payments under the five-year rule may make a new election to receive payments under the life expectancy rule until December 31, 2003; provided, that all amounts that would have been required to be distributed under the life expectancy rule for all distribution calendar years before 2004 are distributed by the earlier of December 31, 2003, or the end of the five-year period.
5. Definitions.
a. Designated Beneficiary. The individual who is designated as the beneficiary under WMWDC 2.35.080(A) and is the designated beneficiary under Section 401(a)(9) of the Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury Regulations.
b. Required Beginning Date. The “required beginning date” of a participant who is a five percent owner is the April 1st of the calendar year following the calendar year in which the participant attains age 70-1/2, except that the benefit distributions to a participant (other than a five percent owner) must commence by the later of the April 1st of the calendar year following the calendar year in which the participant attains age 70-1/2 or retires.
c. Distribution Calendar Year. A calendar year for which a minimum distribution is required. For distributions beginning before the participant’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the participant’s required beginning date. For distributions beginning after the participant’s death, the first distribution calendar year is the calendar year in which distributions are required to begin under subsection (I)(1)(b) of this section. The required minimum distribution for the participant’s first distribution calendar year will be made on or before the participant’s required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the participant’s required beginning date occurs, will be made on or before December 31st of that distribution calendar year.
d. Life Expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury Regulations.
e. Participant’s Account Balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by the distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year.
6. TEFRA Section 242(b)(2) Elections. Notwithstanding any other provisions of this subsection I, distributions may be made under a designation made before January 1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the plan that relate to Section 242(b)(2) of TEFRA.
7. WRERA Elections for 2009 Calendar Year. Notwithstanding any other provisions of this subsection I, a participant or beneficiary who would have been required to receive required minimum distributions for 2009 but for the enactment of Code Section 401(a)(9)(H) (“2009 RMDs”) and who would have satisfied that requirement by receiving distributions that are (a) equal to the 2009 RMDs or (b) one or more payments in a series of substantially equal distributions (that include the 2009 RMDs) made at least annually and expected to last for the life (or life expectancy) of the participant, the joint lives (or joint life expectancy) of the participant and the participant’s designated beneficiary, or for a period of at least 10 years, will not receive those distributions for 2009 unless the participant or beneficiary chooses to receive such distributions. Participants and beneficiaries described in the preceding sentence will be given the opportunity to elect to receive the distributions described in the preceding sentence. In addition, notwithstanding subsection E of this section, and solely for purposes of applying the direct rollover provisions of the plan, a direct rollover will include 2009 RMDs but only if paid with an additional amount that is an eligible rollover distribution (as defined in subsection (E)(2) of this section) without regard to Code Section 401(a)(9)(H).
J. Special Rule for Deceased or Disabled Veterans. In the case of a participant who becomes disabled or dies during qualified military service, as defined under USERRA, on or after January 1, 2007, the participant or his or her designated beneficiary shall be entitled to any additional benefits provided under the plan as if the participant had resumed employment with the employer on the day preceding death or disability and then terminated employment on the actual date of the death or disability. (Res. 2668 § 1 (Exh. A §§ 4 – 9), 2010; Res. 2507, 2007)
2.35.070 Rollovers and transfers.
A. Plan-to-Plan Transfers among Eligible Deferred Compensation Plans. Plan-to-plan transfers shall be permitted as follows:
1. Transfers from the Plan. Notwithstanding any other plan provision, distribution of amounts deferred by a former participant or beneficiary of this plan may be transferred to another eligible deferred compensation plan of which the former participant has become or the beneficiary is a participant, if the following conditions are met:
a. The plan receiving such amounts provides for such transfer;
b. The former participant or beneficiary will have an amount deferred immediately after the transfer at least equal to the amount deferred with respect to that participant or beneficiary immediately before the transfer; and
c. In the case of a transfer for a former participant, the participant has had a severance from employment with the transferring plan and is performing services for the entity sponsoring the receiving plan.
2. Transfers to the Plan. If a participant was formerly a participant in another eligible deferred compensation plan, and if such plan permits the direct transfer of the participant’s interest therein to the plan, the employer may in its discretion accept a transfer of amounts for such participant under the prior plan. Such amount shall be held, accounted for, administered and otherwise treated in that same manner as compensation deferred by the participant under the plan, except that no amount so transferred will be taken into account in applying the maximum deferral limitations set forth in WMWDC 2.35.050.
In addition, the receipt of assets under this subsection shall be subject to the following conditions:
a. No transfer shall be in an amount less than $100.00;
b. No amount may be transferred to the plan without the prior approval of the trustee. The trustee shall act in a uniform, nondiscriminatory manner in this regard; and
c. All transfers shall be paid to the trustee to hold in the trust.
B. Transfer from Other Qualified Plans – Rollover Contributions. A participant may rollover or transfer to this plan amounts from a qualified plan that meets the requirements of Section 402(c)(8) of the Code which are eligible to be rolled over or transferred to this plan pursuant to the provisions of Section 402(c)(4) of the Code. Such rollover or transfer must comply with the requirements of Section 457(e)(16) of the Code. The assets to be transferred must be accompanied by written representations, satisfactory to the plan administrator, identifying the transferor plan, stating the name of the participant, and providing such other information as the plan administrator may require. The plan administrator may require that certain assets be reduced to cash in order that the rollover or transfer be accepted by the plan. If a direct rollover is received by the plan administrator from another qualified plan, the plan is not required to provide, with respect to amounts paid to it in such a direct rollover, the same optional forms of benefit that were provided under the transferor plan.
In addition, the receipt of assets under this subsection shall be subject to the following conditions:
1. No transfer shall be in an amount less than $100.00;
2. Transfers may be in cash or in kind. The trustee shall establish nondiscriminatory rules regarding the acceptance or nonacceptance of in-kind transfers;
3. No amount may be transferred to the plan without the prior approval of the trustee. The trustee shall act in a uniform, nondiscriminatory manner in this regard;
4. All transfers shall be paid to the trustee to hold in the trust;
5. A separate account shall be established and maintained for each participant who has made a transfer;
6. The participant’s interest in the account shall be fully vested and nonforfeitable;
7. All transfers will be held and invested in the trust in the same manner as amounts deferred under the plan;
8. The amount held in the account shall be paid to the participant at the same time as amounts deferred under the plan. Any distribution of such amounts shall be made in accordance with the applicable provisions of WMWDC 2.35.060;
9. If it is determined that a participant’s transfer mistakenly failed to qualify under the Code as a tax-free rollover, it shall be immediately corrected as follows:
a. The amount of the rollover contribution, plus any earnings attributed to that contribution shall be segregated from all other plan assets;
b. Treated as a nonqualified trust established by and for the benefit of the participant; and
c. Distributed to the participant within a reasonable amount of time after the determination that the rollover is not valid.
C. Transfers to Purchase Permissive Service Credit. All or a portion of a participant’s account may be transferred directly to the trustee of a defined benefit governmental plan (as defined in Section 414(d) of the Code) if such transfer is (1) for the purchase of permissive service credit (as defined in Section 415(n)(3)(A) of the Code) under such plan, or (2) a repayment to which Section 415 of the Code does not apply by reason of subsection (k)(3) thereof, within the meaning of Section 457(e)(17) of the Code. A transfer under this subsection C may be made before the participant has had a severance from employment. (Res. 2507, 2007)
2.35.080 Beneficiaries.
A. Designation. A participant shall have the right to designate a beneficiary and amend or revoke such designation at any time, in writing. Such designation, amendment or revocation shall be effective upon receipt by the administrator. Notwithstanding the foregoing, a participant who elects a joint and survivor annuity form of payment may not elect a nonspouse joint annuitant, and may not change his or her joint annuitant after payments commence.
B. Failure to Designate a Beneficiary. If no designated beneficiary survives the participant, and benefits are payable following the participant’s death, the administrator may direct that payment of benefits be made to the person or persons in the first of the following classes of successive preference beneficiaries: the participant’s spouse, then to the participant’s estate. (Res. 2507, 2007)
2.35.090 Loans to participants.
A. Participant Loans. A participant who is an employee may apply for and receive a loan from his or her account as provided in this section. Any such loan may not be for an amount less than the minimum amount specified by the plan administrator or $1,000.
B. Maximum Loan Amount. No loan to any participant can be made to the extent that such loan would exceed the lesser of (1) $50,000 reduced by the greater of (a) the outstanding balance on any loan from the plan on the date the loan is made or (b) the highest outstanding balance on loans from the plan during the one-year period ending on the day before the date the loan is approved by the plan administrator (not taking into account any payments made during such one-year period); or (2) one-half the present value of the participant’s vested account balance (as of the valuation date immediately preceding the date on which such loan is approved by the plan administrator).
C. Terms of Loan. The terms of the loan shall:
1. Require that repayment (principal and interest) be amortized in level payments, not less than quarterly;
2. Require that the loan be repaid within five years from the date of the loan, unless the participant certifies in writing that such loan is to be used to acquire a dwelling unit which within a reasonable time (determined at the time the loan is made) will be used as the principal residence of the participant; and
3. Provide for interest at a rate equal to one percentage point above the prime rate on the first business day of the month in which the loan is approved by the plan administrator.
D. Security for Loan – Default.
1. Security. Any loan to a participant under the plan shall be secured by the pledge of the portion of the participant’s interest in the plan invested in such loan.
2. Default. In the event that a participant fails to make a loan payment within 90 days after the date such payment is due, a default on the loan shall occur. In the event of default, (a) all remaining payments on the loan shall be immediately due and payable, (b) effective as of the first day of the calendar month next following the month in which any such loan default occurs, the interest rate for such loan shall be (if higher than the rate otherwise applicable) the rate being charged on loans from the plan that are approved by the administrator in the month in which such default occurs, (c) no contribution shall be made on such participant’s behalf prior to the first payroll period that follows by 12 calendar months the date of repayment in full of such loan and (d) the participant shall be permanently ineligible for any future loans from the plan.
In the case of any default on a loan to a participant, the administrator shall apply the portion of the participant’s interest in the plan held as security for the loan in satisfaction of the loan on the date of severance from employment. In addition, the plan administrator shall take any legal action it shall consider necessary or appropriate to enforce collection of the unpaid loan, with the costs of any legal proceeding or collection to be charged to the participant’s account. Notwithstanding any provision in this plan to the contrary, in the event a loan is outstanding hereunder on the date of a participant’s death, his or her estate shall be the beneficiary as to the portion of the participant’s interest in the plan invested in such loan (with the beneficiary(ies) as to the remainder of his or her interest in the plan to be determined in accordance with otherwise applicable provisions of the plan).
E. Repayment. The participant shall be required, as a condition to receiving a loan, to enter into an irrevocable agreement authorizing the employer to make payroll deductions from the participant’s compensation as long as the participant is an employee and to transfer such payroll deduction amounts to the trustee in payment of such loans plus interest. Repayments of a loan shall be made by payroll deduction of equal amounts (comprised of both principal and interest) from each paycheck, with the first such deduction to be made as soon as practicable after the loan funds are disbursed; provided, however, that a participant may prepay the entire outstanding balance of his loan at any time (but may not make a partial prepayment); and provided, further, that if any payroll deductions cannot be made in full because a participant is on an unpaid leave of absence or the participant’s paycheck is insufficient for any other reason, the participant shall pay directly to the plan the full amount that would have been deducted from the participant’s paycheck, with such payment to be made by the last business day of the calendar month in which the amount would have been deducted.
F. Special Rule for Veterans. The suspension of an employee’s obligation to repay a plan loan for the period during which the employee is performing military service (as described in Section 414(u)(4) of the Code) will not disqualify the plan from satisfying the prohibited transaction exemption for plan loans. (Res. 2507, 2007)
2.35.100 Plan administration.
A. Accounts and Expenses. The employer shall establish and maintain accounts on behalf of each participant. Accounts shall be valued at least once each plan year, and each participant shall receive written notice of his or her account balance following such valuation. Account balances shall reflect the total deferral amount plus any additional contributions credited to the participant’s account, including any earnings or losses attributable to such amount, and shall be reduced by administrative, investment and other fees in such amounts and at such times as the administrator deems necessary for the maintenance of this plan.
B. Plan Administrator. The plan shall be administered by the employer or persons designated by the employer to administer the plan. The administrator shall have responsibility for the operation and administration of the plan and shall direct payment of plan benefits. The administrator shall have the power and authority to adopt, interpret, alter, amend or revoke rules and regulations necessary to administer the plan and to delegate ministerial duties and employ such outside professionals as may be required for prudent administration of the plan. The administrator shall also have authority to enter agreements on behalf of the employer necessary to implement this plan.
C. Establishment of Trust. Notwithstanding any contrary provision of the plan, in accordance with Section 457(g) of the Internal Revenue Code, all amounts of compensation deferred pursuant to the plan, all property and rights purchased with such amounts, and all income attributable to such amounts, property, or rights shall be held in trust for the exclusive benefit of participants and beneficiaries under the plan. Any trust under the plan shall be established pursuant to a separate trust agreement between the employer and trustee. Said trust agreement shall be executed and effective concurrent with the adoption of the restated plan. The trust agreement is hereby incorporated by reference.
All amounts of compensation deferred under the plan shall be transferred to a trust established under the plan within a period that is not longer than is reasonable for the proper administration of the accounts of participants. To comply with this requirement, all amounts of compensation deferred under the plan shall be transferred to a trust established under the plan not later than 15 business days after the end of the month in which the compensation would otherwise have been paid to the employee.
All amounts deferred under this plan and all property and rights purchased with such amounts, and all income attributable to such amounts, shall be held in trust for the exclusive benefit of participants and beneficiaries under the plan. Any trust under the plan shall be established pursuant to a separate trust agreement between the employer and the trustee.
Said trust agreement shall be executed and effective concurrent with the adoption of this restated plan. The trust agreement is hereby incorporated by reference.
D. Lost Participant. The administrator shall make all reasonable attempts to determine the identity and address of a participant or beneficiary entitled to benefits under the plan. For this purpose, a “reasonable attempt” means (1) the mailing by certified mail of a notice to the last known address shown on the employer’s or plan administrator’s records, (2) notification sent to the Social Security Administration or the Pension Benefit Guaranty Corporation (under their program to identify payees under retirement plans), and (3) the payee has not responded within six months. If the administrator is unable to locate such a person entitled to benefits hereunder, or if there has been no claim made for such benefits, the trust shall continue to hold the benefits due such person. (Res. 2507, 2007)
2.35.110 Amendment and termination.
A. Amendment. The employer shall have the right to amend this plan at any time, and from time to time, in whole or in part. The employer shall notify each participant in writing of any plan amendment. The general manager shall have the authority to adopt and execute any amendments to the plan on behalf of the employer; provided, that such amendments are for statutory compliance or resulting from decisions of the board of directors.
B. Termination. Although the employer has established this plan with a bona fide intention and expectation to maintain the plan indefinitely, the employer may terminate or discontinue the plan in whole or in part at any time without any liability for such termination or discontinuance. Upon the termination of the plan, all deferrals shall cease and the employer shall cause to be distributed to each participant, in cash or in kind, the net value of the participant’s account as of the date of termination. (Res. 2758, 2011; Res. 2507, 2007)
2.35.120 Miscellaneous.
A. Limitation of Rights – Employment Relationship. Neither the establishment of this plan nor any modification thereof, nor the creation of any fund or account, nor the payment of any benefits, shall be construed as giving a participant or other person any legal or equitable right against the employer except as provided in the plan. In no event shall the terms of employment of any employee be modified or in any way be affected by the plan.
B. Limitation on Assignment. Benefits under this plan may not be assigned, sold, transferred or encumbered, and any attempt to do so shall be void. A participant’s or beneficiary’s interest in benefits under the plan shall not be subject to debts or liabilities of any kind and shall not be subject to attachment, garnishment or other legal process.
C. Representations. The employer does not represent or guarantee that any particular federal or state income, payroll, personal property or other tax consequence will result from participation in this plan. A participant should consult with professional tax advisors to determine the tax consequences of his or her participation. Furthermore, the employer does not represent or guarantee successful investment of amounts deferred under the plan, and shall not be required to repay any loss which may result from such investment or lack of investment.
D. Severability. If a court of competent jurisdiction holds any provisions of this plan to be invalid or unenforceable, the remaining provisions of the plan shall continue to be fully effective.
E. Applicable Law. This plan shall be construed in accordance with applicable federal law and, to the extent otherwise applicable, the laws of the state of California.
F. IRS Levy. Notwithstanding subsection B of this section, the administrator may pay from a participant’s or beneficiary’s account the amount that the administrator finds is lawfully demanded under a levy issued by the Internal Revenue Service with respect to the participant or beneficiary or is sought to be collected by the United States Government under a judgment resulting from an unpaid tax assessment against the participant or beneficiary.
G. Mistaken Contributions. If any contribution (or any portion of a contribution) is made to the plan by a good faith mistake of fact, then within one year after the payment of the contribution, and upon receipt in good order of a proper request approved by the administrator, the amount of the mistaken contribution (adjusted for any income or loss in value, if any allocable thereto) shall be returned directly to the participant or, to the extent required or permitted by the administrator, to the employer. (Res. 2668 § 1 (Exh. A §§ 10, 11), 2010; Res. 2507, 2007)