The Board of Trustees of the Sheet Metal Workers' National Pension Fund - Page 26




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          year, business improved, but the employer’s costs did not                   
          decrease to the extent projected.  The employer accordingly                 
          offered an early retirement window for the fourth year as well.             
          Respondent ruled that the employer’s offering 4 consecutive years           
          of an “early retirement window” was made on account of specific             
          business conditions and was not designed to create a permanent              
          benefit.  Accordingly, the early retirement window provisions               
          were not deemed to be part of the plan and could be discontinued            
          without disqualifying the plan.                                             
               Rev. Rul. 92-66, supra, was found to be convincing in                  
          DeCarlo v. Rochester Carpenters Pension, Annuity, Welfare &                 
          S.U.B. Funds, 823 F. Supp. 115 (W.D.N.Y. 1993).  There, the                 
          plaintiffs were retired union members.  Their pension fund was              
          “overfunded” for 1988, 1989, 1991, and 1992, and they were given            
          an extra yearend payment (called, like the NPF COLAs, a “13th               
          check”).   Id. at 118.  Because the plan’s actuary warned that              
          issuing a third consecutive 13th check in 1990 would violate the            
          pattern of amendment provisions of section 1.411(d)-4, Income Tax           
          Regs., the plaintiffs were not given a 13th check for 1990.  The            
          plaintiffs argued before the District Court that the plan’s                 
          trustees had established a pattern of amendments that gave rise             
          to a nonforfeitable right to a 13th check.  The court disagreed.            
          Relying on the provision of Rev. Rul. 92-66, supra, that made the           
          existence of a pattern of amendments dependent upon whether the             






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