- 27 - 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, inPage: 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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