The Board of Trustees of the Sheet Metal Workers' National Pension Fund - Page 27




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          amendments resulted from a “business event or condition”, the               
          court held that the payment of a 13th check depended upon the               
          business event or condition of the Plan’s being overfunded for              
          the year in which the checks were issued.  The court concluded              
          that the payment of the 13th check did not confer a                         
          nonforfeitable benefit under section 1.411(d)-4, Income Tax Regs.           
               Here, in his reply brief, respondent concedes that the                 
          “effective date” provisions of section 1.411(d)-4, Q&A-1(c)(1),             
          Income Tax Regs., require that only the 1989 and 1990 amendments            
          to the Plan may be considered for purposes of section 1.411(d)-4,           
          Income Tax Regs.  Respondent continues to assert, however, that             
          the ad hoc payments made in 1989 and 1990 should be considered to           
          be part of the Plan, although the NPF COLA did not come into                
          effect until 1991.                                                          
               We disagree.  Here, as in DeCarlo, petitioner’s counsel                
          warned in 1988 that, as a result of the new regulations, three              
          consecutive plan amendments inserting an ad hoc COLA could be               
          construed to be a permanent amendment providing COLAs.  Having              
          been alerted to the effects of repeated ad hoc payments,                    
          petitioner in 1989 doubled the funding required for the COLAs.              
          Nevertheless, two ad hoc payments were still needed to meet the             
          intended 3-percent COLA for 1989 and 1990.  Thus, here, as in               
          DeCarlo, the NPF Fund’s two ad hoc payments were necessary                  
          because of adverse “business events or conditions”.  Moreover, in           






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