Advisory Opinions

Requests for interpretations and other rulings under Title 1 of ERISA are handled by the Office of Regulations and Interpretations under the provisions established by ERISA Procedure 76-1.  The office answers inquiries from individuals and organizations in the form of advisory opinions, which apply the law to a specific set of facts, or information letters, which merely call attention to well established principles or interpretations.

Data Dictionary

1993
AO/ Date/ Reference Recipient Description of Request
10/12/1993
3(1)

Ms. Deborah Holland Tudor 
Greenebaum Doll & McDonald 
333 West Vine Street, Suite 1400 
Lexington, Kentucky 40507

Whether the Toyota Motor Manufacturing, U.S.A., Inc. Employer's Short Term Disability Plan and its Salary Continuation Plan, which pay benefits out of the employer’s general assets for absences due to certain medical reasons that equal or are a significant portion of, but do not exceed, the employee’s normal compensation, are payroll practices within the meaning of the Department of Labor regulations at 29 C.F.R. §2510.3-1(b) and therefore are not "employee welfare benefit plans" within the meaning of section 3(1) of Title I of ERISA.

09/09/1993
4975
PTE 77-4

Donald S. Kohla, Esq. King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763

Whether Prohibited Transaction Exemption 77-4 applies to transactions involving IRAs not covered by Title I of ERISA but which are subject to section 4975 of the Internal Revenue Code.

09/03/1993
3(1)

Ms. Mary B. Hevener 
Lee, Toomey & Kent
1200 Eighteenth Street, N.W. 
Washington, D.C. 20036 

Whether the Armstrong Dependent Care Reimbursement Account, adopted by Armstrong World Industries, Inc. to provide its full-time and part-time employees with dependent care assistance by reimbursing dependent care services freely chosen by employees , is an employee welfare benefit plan within the meaning of section 3(1) of ERISA.

09/13/1993
406(b)(1)
406(b)(3)

Roger W. Thomas 
Staff Attorney 
Department of Financial Institutions 
Fourth Floor, The John Sevier Building
500 Charlotte Avenue
Nashville, TN 37243-0705

Whether a bank acting as an agent or trustee for employee benefit plans earning interest for their own accounts from the "float" when a benefit check is written to a participant until the check is presented for payment is prohibited under section 406(b)(3) of ERISA.

09/03/1993
404(a)(1)
514(d)

Frederick D. Hunt, Jr., President 
Society of Professional Benefit Administrators
Two Wisconsin Circle, Suite 670
Chevy Chase, MD 20815-7003

What are the appropriate actions to be taken by plan administrators under Title I of ERISA when presented with requests for recovery of mistaken primary payments made by Medicare under the Medicare Secondary Payer provisions. Whether medical providers or plan participants who have been paid for the same services by both Medicare and employee benefit plans, or who have otherwise misled plan fiduciaries, could be held liable as knowing participants in any fiduciary breach resulting from such actions.

08/24/1993
103

Mr. Frederick W. Rumack 
Director of Tax & Legal Services 
Buck Consultants 
Two Pennsylvania Plaza 
New York, New York 10121

In preparing an annual report for a defined benefit pension plan (Plan) subject to Title I of the Employee Retirement Income Security Act of 1974 (ERISA), what is the proper disclosure of information relating to assets held in an insurance company separate account established pursuant to a specific group annuity contract to provide benefit payments under the Plan. Specifically, what are the plan's annual reporting requirements with respect to the plan's statement of assets and liabilities, the Schedule A for the Contract, and the plan's Schedule B.

08/03/1993
103(a)(3)

Mr. Richard Bentley 
Investment Executive
PaineWebber Incorporated
1000 East St. Mary Boulevard
Lafayette, Louisiana 70503

Whether the term "similar institution," as used in 29 C.F.R. § 2520.103-8, includes securities brokerage firms.

07/16/1993
3(1)

Mr. William J. Bernstein 
The Coca-Cola Company
P.O. Drawer 1734 
Atlanta, Georgia 30301

Whether the Short-Term Disability Income Plan for Non-Exempt Employees of The Coca-Cola Company is an employee welfare benefit plan within the meaning of section 3(1) of Title I of ERISA.

05/28/1993
3(40)
514(b)(6)

Mr. James P. Harrington, Jr. 
California Department of Insurance
100 Van Ness Avenue
San Francisco, California 94102

Whether the Western Growers Assurance Trust (WGAT) is a multiple employer welfare arrangement (MEWA) within the meaning of section 3(40) of Title I of ERISA and therefore subject under section 514(b)(6) of that title to applicable state insurance regulation.

05/28/1993
403(d)(2)
406(b)(2)

Melvin H. Pizer
The 500 Building, Suite 1100
500 South Salina Street
Syracuse, NY 13202

Addresses several questions on the application of the fiduciary responsibility provisions of the Employee Retirement Income Security Act of 1974 (ERISA) to the termination and proposed transfer of the excess funds of one employee welfare benefit plan to another employee welfare benefit plan where both plans are jointly-administered, labor management trust funds established under collective bargaining agreements pursuant to section 302(c) of the Labor Management Relations Act.