- 26 - 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 thePage: 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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