- 21 - accrued. It is most likely that there were few pre- 1973 retirees still receiving benefits under that plan, and that the issue was not even raised in that case. There is certainly no indication from the court’s opinion that it was raised by the parties. [Id.] We conclude that the provisions of ERISA are meant to preserve only those retirement benefits accrued by an employee during his tenure as an employee. This conclusion follows from the language of section 411(a)(7) that defines an accrued benefit as one of an “employee” “commencing at normal retirement age”. The same conclusion follows from the legislative history emphasizing ERISA protection of pension rights which have been “slowly stockpiled” and from the cases which maintain that ERISA benefits were those which were “promised, anticipated, and accrued.” Respondent argues, in the alternative, that “if the NPF COLA benefit is not considered to be an accrued benefit, it appears to fit within the definition of a retirement-type subsidy” within the meaning of section 411(d)(6)(B)(i).7 We disagree. The concept of a retirement-type subsidy has an accepted meaning as it is used in section 411(d)(6)(B)(i). It does not refer to postretirement COLAs. It refers to amounts paid to early retirees above their normal pension benefits. 7 Petitioner maintains that respondent’s alternate arguments were not made in a timely fashion and that respondent thus bears the burden of proof as to these arguments under Rule 217. In view of our disposition of these issues, we need not decide where the burden of proof lies.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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