                       117 T.C. No. 19



                UNITED STATES TAX COURT



   THE BOARD OF TRUSTEES OF THE SHEET METAL WORKERS’
    NATIONAL PENSION FUND, IN ITS CAPACITY AS PLAN
     ADMINISTRATOR, Petitioner v. COMMISSIONER OF
            INTERNAL REVENUE, Respondent



Docket No. 6157-00R.                     Filed December 4, 2001.



     PP is a multiemployer pension plan established in
1966 to benefit employees in the sheet metal industry.
A second, separate fund (C) was established in 1985 to
provide 3-percent cost of living adjustments (COLAs) to
most of PP’s participants. For 1985 through 1990, C’s
assets were insufficient to pay the 3-percent benefit,
and PP made “ad hoc” payments to each of its
participants who was eligible that year to receive a
benefit from C. The ad hoc payment equaled the amount
that, in combination with the benefit payable from C,
equaled the 3-percent COLA. PP’s plan was amended in
March 1992 to add a COLA as of Jan. 1, 1991, equal to
the difference between the 3-percent COLA and the
portion of that amount paid by C. In October 1992,
PP’s plan was restated as of Jan. 1, 1991, to provide
for a flat 2-percent COLA that was not dependent on the
amount paid by C and that was payable to all eligible
employees without regard to whether the provision was
                               - 2 -

     in effect when the employees retired or separated from
     service. PP paid a COLA for 1992 through 1994. In
     October 1995, PP’s plan was amended to eliminate the
     COLAs paid under the plan to pre-1991 retirees.
          Held: The 1995 amendment, although it removed
     COLAs that had been provided to pre-1991 retirees, did
     not violate the anticutback provision of sec.
     411(d)(6), I.R.C.



     Stephen M. Rosenblatt and W. Mark Smith, for petitioner.

     Sandra M. Jefferson and Elizabeth S. Henn, for respondent.



                              OPINION


     LARO, Judge:   Petitioner petitioned the Court for a

declaratory judgment under section 7476.   The case is before the

Court for decision on the basis of the stipulated administrative

record.   Rule 217(b)(1).1

     We must decide whether petitioner’s pension plan, the Sheet

Metal Workers’ National Pension Fund, Plan A and Plan B (the

Plan),2 failed to qualify under section 401 for its plan year

ended December 31, 1995, and thereafter.   We hold that it did

qualify under section 401 and, hence, that its trust was exempt

from Federal income taxation under section 501.


     1
       Rule references are to the Tax Court Rules of Practice and
Procedure. Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years in issue.
     2
       Although the terms of Plan A and Plan B are set forth in
two separate documents, those terms are substantially identical.
We treat the plans as a single plan for purposes of this opinion.
                               - 3 -

                            Background

     The parties have stipulated the administrative record.    That

record is incorporated herein by this reference.   Petitioner’s

address was in Alexandria, Virginia, when its petition was filed.

     The Plan is a multiemployer defined benefit pension plan.

It was established in 1966 by the Sheet Metal Workers’

International Association (SMWIA) and by employers in the sheet

metal industry.   Its sponsor and administrator is petitioner.

Petitioner, which comprises an equal number of employer and

employee trustees, has the sole authority to amend the Plan.

     The Plan primarily provides retirement benefits to employees

in the sheet metal industry.   Under the Plan, a participant is

entitled to receive a pension ascertained from the Plan’s terms

in effect when he or she separates from covered employment.    The

amount of the pension is ascertained from the pension credit

accrued and the contribution rates at which the participant had

worked before separation.

     In 1985, the SMWIA and the various employers who maintained

the Plan established a separate fund (COLA Fund) to provide for

cost of living adjustments (COLAs).    The COLA Fund was not part

of the Plan, and the COLA Fund and the Plan had separate trusts,

were governed by separate plan documents, and had separate boards

of trustees.   The COLA Fund’s plan document gave the trustees the

discretion to ascertain each year whether a COLA would be paid
                               - 4 -

and, if so, the amount of the payment not to exceed the amount of

available assets.   It was always intended that the annual benefit

under the COLA Fund would equal approximately 3 percent of the

pensioner’s annual retirement benefit from the Plan, multiplied

by the number of years, up to 15, that he or she had received a

pension from the Plan (the 3-percent COLA).

     The COLA Fund was set up as a supplemental payment plan

under the Employee Retirement Income Security Act of 1974

(ERISA), Pub. L. 93-406, sec. 3(2)(B)(ii), 88 Stat. 829,

(currently codified at 29 U.S.C. sec. 1002(B) (ii) (1994)), as

amended by the Multi Employer Pension Act of 1980, Pub. L.

96-364, sec. 409, 94 Stat. 1307.   The employers who maintained

the COLA Fund initially contributed to the fund 5 cents per every

hour worked by an employee of theirs.    Each employer who

maintained the COLA Fund also maintained the fund (NPF Fund)

underlying the Plan, but not all employers who maintained the NPF

Fund also maintained the COLA Fund.    Thus, not all Plan

participants participated in the COLA Fund.

     In 1985, the COLA Fund’s assets were insufficient to pay the

full 3-percent COLA.   Accordingly, the NPF Fund made an “ad hoc”

payment to each retiree and beneficiary under the Plan who was

eligible that year to receive a benefit from the COLA Fund.     (The

minutes of the meeting authorizing the ad hoc payment in 1985,

like those for subsequent years, contained the recital:      “Noting
                               - 5 -

that it was permissible for a pension fund to provide ad hoc

benefit increases to pensioners and beneficiaries it was agreed

that the National Pension Fund should provide the amount

necessary to reach the desired formula.”)   The ad hoc payment

equaled the amount that, in combination with the benefit payable

from the COLA Fund, equaled the 3-percent COLA.

     The COLA Fund’s assets were again insufficient to pay the

3-percent COLA for 1986, 1987, and 1988.    In each of these years,

petitioner approved the NPF Fund’s payment of an ad hoc amount

that, in combination with the benefit payable under the COLA

Fund, equaled the 3-percent COLA.   The percentages of those ad

hoc payments for 1985 through 1988 were 1.7, 1.8, 1.5, and 2.4,

respectively.

       On July 11, 1988, respondent prescribed a new set of

regulations that included section 1.411(d)-4, Q&A-1(c), Income

Tax Regs.   That section mandates that, if an employer establishes

a pattern of repeated plan amendments providing for similar

benefits in similar situations for substantially consecutive,

limited periods of time, those benefits will be treated as

provided under the terms of the plan.   That section further

mandates that patterns of repeated plan amendments adopted and

effective before July 11, 1988, are disregarded in determining

whether the amendments constitute a pattern that is deemed part
                               - 6 -

of the plan.   Petitioner’s minutes of its meeting in October 1988

recite that its legal counsel reported that

     recent Internal Revenue Service regulations which
     provide that a pattern of repeated plan amendments
     providing for similar benefits, in similar situations
     paid to participants for substantially consecutive
     limited periods of time will be considered by the
     Internal Revenue Service as a permanent benefit and the
     Internal Revenue Service would require that such
     benefits be funded. [Counsel] * * * stated that the
     regulations make a presumption that any such benefit
     paid for three consecutive years will be considered a
     permanent benefit.

     In 1989, the employers’ contribution to the COLA Fund was

raised from 5 to 10 cents per hour worked.    The COLA Fund’s

assets were again insufficient to pay the 3-percent COLA for 1989

and 1990.   To make up for the shortfall, petitioner authorized ad

hoc payments from the NPF Fund of 2.3 percent and 2.1 percent for

the respective years.

     In a session held on November 15 and 16, 1990, petitioner

agreed to amend the Plan to provide a 2-percent annual

cost-of-living benefit (the NPF COLA) as an integral part of the

Plan itself beginning in December 1991.   A March 1991 newsletter

sent to plan participants stated in an article entitled “NOW!

COLA COVERAGE FOR ALL NPF RETIREES”:

     The Trustees of the Sheet Metal National Pension Fund
     have unanimously voted to extend COLA (Cost of Living
     Allowance) protection to all qualified retired SMWIA
     members and their surviving spouses who receive NPF
     pensions.
                               - 7 -

As a result, in October 1991, the original COLA Fund was amended

to provide for a 1-percent cost-of-living benefit.   In December

1991, the COLA Fund paid .96 percent as a COLA benefit, and the

NPF Fund paid 2.04 percent.

     In March 1992, petitioner adopted a new article 8 that

formally added the NPF COLA to the Plan, effective retroactively

to January 1, 1991.   Initially, the March 1992 amendment provided

that the NPF COLA would equal the difference between 3 percent

and the amount paid from the COLA Fund.   In October 1992, the

Plan was restated retroactively to January 1, 1991, to provide

for a 2-percent benefit (subject to minor adjustments) that was

not dependent on the amount paid from the COLA Fund; it was

anticipated that the COLA Fund would pay a 1-percent benefit if

it had sufficient assets.   The new article 8 provided NPF COLAs

to all eligible employees without regard to whether the NPF COLA

provision was in effect when the eligible employee retired or

separated from service.   Thus, plan participants who retired or

separated from service before January 1, 1991 (pre-1991

retirees), were provided with the NPF COLAs.

     Pursuant to the Plan’s amendments, the NPF Fund paid for the

respective years from 1992 through 1994 a COLA of 2 percent, 2.2

percent, and 2 percent, multiplied by the number of years (up to

15) that the pensioner had received a pension from the Plan.     NPF
                               - 8 -

COLA payments were made in lump sum distributions in December in

the form of a “13th check”.

     By the end of 1993, petitioner concluded that the COLA Fund

could no longer provide the anticipated 1-percent payment.    In a

letter dated December 1993, which enclosed the 13th check,

eligible retirees and beneficiaries were informed that future

COLA checks would be based on a 2- rather than 3-percent rate.

As of 1994, the COLA Fund stopped paying COLAs.   In September

1994, the COLA Fund’s trustee voted to end employer contributions

to the COLA Fund, effective July 1, 1995.   In December 1994,

petitioner adopted an amended and restated plan that included

minor amendments to article 8, none of which are relevant herein.

In March 1995, petitioner proposed an amendment to article 8

which would eliminate the NPF COLAs paid to pre-1991 retirees.

     Later in March 1995, the Plan filed a Form 5303, Application

for Determination for Collectively Bargained Plan, with

respondent’s Baltimore Key District Office (District Office).

The application was filed in response to a technical advice

memorandum dated November 9, 1994 (regarding provisions not at

issue in this case), as well as to comply with amendments to the

Code.   The application contained the amended and restated plan

that petitioner adopted on December 22, 1994.   It also contained

a copy of a proposed amendment to article 8 which would eliminate

NPF COLAs for pre-1991 retirees.
                                 - 9 -

     On October 30, 1995, petitioner amended and restated

article 8 (1995 article 8).    The 1995 article 8 provides that,

effective January 1, 1995, a participant had to have separated

from covered employment on or after January 1, 1991, in order to

be eligible to receive an NPF COLA.      The 1995 article 8 also

provides that petitioner may amend the Plan in any year to

provide an ad hoc payment to pre-1991 retirees.      The 1995 article

8 limits the amount of any single year’s ad hoc payment to 5

percent of the retiree’s annual pension benefit and does not take

into account years of service.

        By unanimous written concurrence on December 30, 1996,

petitioner amended and restated article 8 (1996 article 8), again

providing that a plan participant had to be separated from

covered employment on or after January 1, 1991, to receive an NPF

COLA.    The 1996 article 8 also incorporates specifically the

provision permitting the Plan to be amended so that ad hoc

payments might be made to pre-1991 retirees in 1995 and again in

1996.    For 1996, petitioner paid a flat 8-percent ad hoc payment

to the pre-1991 retirees.

     On April 30, 1997, petitioner submitted the final adopted

article 8 to the District Office as a supplement to the

application for determination.    By letter dated June 12, 1997,

the District Office notified the Plan that it was requesting a

technical advice memorandum (TAM) from respondent’s national
                               - 10 -

office on the answers to the following questions:   (1) Whether

the benefit provided under article 8 is an accrued benefit under

section 411(a)(7)(A)(i) for pre-1991 retirees; and (2) whether

the amendment that discontinued NPF COLAs for pre-1991 retirees

reduced those participants’ accrued benefits in violation of

section 411(d)(6)(A).

     By letter dated September 8, 1999, the District Office sent

a copy of the TAM to the Plan’s counsel.   The TAM concludes that

the amendment to article 8 violates section 411(d)(6).    The

letter asked the Plan to submit a corrective amendment.    By

letter dated October 4, 1999, the Plan’s counsel notified the

District Office that petitioner did not intend to make any

corrective amendment to the Plan.

     On March 6, 2000, respondent issued to the Plan a final

adverse determination letter that stated that the Plan failed to

qualify under section 401(a) for 1995 and thereafter.    It also

stated that the trust underlying the Plan was not exempt from

Federal income taxation under section 501(a) for the related

years.   The adverse determination was generally based upon the

reasons stated in the TAM.

                             Discussion

     We must decide whether the NPF COLA is an accrued benefit of

the pre-1991 retirees, the elimination of which violated the

anticutback rule of section 411(d)(6).    Petitioner maintains that
                                - 11 -

the NPF COLA is not an accrued benefit as to pre-1991 retirees

because the NPF COLA only became effective on January 1, 1991.

Petitioner concludes that the pre-1991 retirees could not have

accrued an NPF COLA while they were employees and, hence, that

the 1995 amendment eliminating that benefit as to them did not

violate section 411(d)(6).   Respondent argues that the NPF COLA

is an accrued benefit as to pre-1991 retirees and that its

elimination violates the anticutback rule.   Respondent contends

that the level of benefits provided by a plan is set by the

parties thereto in the plan’s terms and that nothing in ERISA

prevents a plan from being amended after a participant’s

retirement to provide, retroactively, more generous accrued

benefits to that participant.

     We agree with petitioner.    For the reasons stated below, we

believe that a COLA that is added to a plan after the retirement

of some of its participants, although made available to them, is

not an accrued benefit as to those participants under section

411(d)(6).

     Congress enacted ERISA to ensure that “if a worker has been

promised a defined pension benefit upon retirement-–and if he has

fulfilled whatever conditions are required to obtain a vested

benefit–-he actually will receive it.”    Nachman Corp. v. Pension

Ben. Guar. Corporation, 446 U.S. 359, 375 (1980).    Congress

included in Title I of ERISA provisions for the “Protection of
                               - 12 -

Employee Benefit Rights”.    Congress included in Title II of ERISA

“Amendments to the Internal Revenue Code Relating to Retirement

Plans.”   Through ERISA, qualified pension plans and their

participants are granted favorable tax treatment in that:    (1) An

employer may deduct its contributions to the trust which holds

the pension fund in the year in which the contributions are made,

(2) the earnings on the trust’s principal are not taxed, and (3)

the employee is not taxed until the benefits are distributed to

him or her.

     We concern ourselves with the anticutback rule of section

411(d)(6).    That section, which parallels the requirements of

29 U.S.C. sec. 1054(g), provides in relevant part:

     (6) Accrued benefit not to be decreased by
amendment.--

          (A) In general.--A plan shall be treated as not
     satisfying the requirements of this section if the
     accrued benefit of a participant is decreased by an
     amendment of the plan, other than an amendment
     described in Section 412(c)(8), or Section 4281 of the
     Employee Retirement Income Security Act of 1974.

          (B) Treatment of certain plan amendments.--For
     purposes of subparagraph (A), a plan amendment which
     has the effect of--

                (i) eliminating or reducing an early
           retirement benefit or a retirement-type
           subsidy (as defined in regulations)[3], or



     3
        There is no definition of "retirement-type subsidy" in
the regulations.
                                - 13 -

                (ii) eliminating an optional form of
           benefit,

           with respect to benefits attributable to
           service before the amendment shall be treated
           as reducing accrued benefits. In the case of
           a retirement-type subsidy, the preceding
           sentence shall apply only with respect to a
           participant who satisfies (either before or
           after the amendment) the preamendment
           conditions for the subsidy. The Secretary
           may by regulations provide that this
           subparagraph shall not apply to a plan
           amendment described in clause (ii) (other
           than a plan amendment having an effect
           described in clause (i)).

For this purpose, the term “accrued benefit” is defined by

section 411(a)(7) as follows:

     (7) Accrued benefit.--

          (A) In general.-- For purposes of this section,
     the term “accrued benefit” means–-

                (i) in the case of a defined benefit
           plan, the employee’s accrued benefit
           determined under the plan and, except as
           provided in subsection (c)(3), expressed in
           the form of an annual benefit commencing at
           normal retirement age * * *

An accrued benefit generally represents the progressively

increasing interest in a retirement benefit that an employee

earns each year, under a formula that is provided in the plan.

Ashenbaugh v. Crucible, Inc., 1975 Salaried Ret. Plan, 854 F.2d

1516, 1524 (3d Cir. 1988); see Hoover v. Cumberland, MD Area

Teamsters Pension Fund, 756 F.2d 977, 981-982 (3d Cir. 1985).

     ERISA does not specify any particular amount of an accrued

benefit.   It does, however, generally require that a qualified
                               - 14 -

pension plan participant’s right to his or her normal retirement

benefit must become fully vested within specified time limits.

Sec. 411(a); see also 29 U.S.C. sec. 1053(a).    When an employee’s

accrued retirement benefit is vested, it is nonforfeitable.

Thus, a participant in a defined benefit plan (such as the Plan)

is fully vested when he or she has a nonforfeitable right to 100

percent of the accrued benefit.   An employee’s accrued benefit at

any given time is what a fully vested employee would be entitled

to receive under the plan’s formula if the employee ceased

employment at that time.   In order to prevent circumvention of

the vesting provisions, the anticutback rule provides that, in

order to remain qualified, a plan must not decrease an accrued

benefit or reduce a retirement-type subsidy.

     The statutory language defining “accrued benefit” for

purposes of the Code supports our conclusion that the NPF COLA is

not an “accrued benefit” as to pre-1991 retirees.    Section

411(a)(7) defines “accrued benefit” as “the employee’s accrued

benefit determined under the plan and, except as provided in

subsection (c)(3), [which is not relevant here] expressed in the

form of an annual benefit commencing at normal retirement age”.

(Emphasis added.)   Section 411(d)(6), by contrast, protects the

“accrued benefit of a participant” from being “decreased by an

amendment of the plan”.    (Emphasis added.)   The statutory

construction thus indicates that a retirement benefit may be
                               - 15 -

“accrued” only by an “employee”, but, once accrued, the benefit

is protected from diminution as long as the individual who

accrued the benefit is a “participant” in the plan, whether as an

employee or as a retiree.4   It follows that, while a retiree may

enjoy COLAs added after retirement, such COLAs are not “accrued

benefits” as to that retiree, because the COLAs were not accrued

while he was an employee.    Accordingly, the later-added COLAs are

not protected from being diminished by operation of section

411(d)(6).

     The pertinent legislative history reinforces the

understanding that ERISA was meant to protect only retirement

benefits “stockpiled” during an employee’s tenure on the job:

     Unless an employee’s rights to his accrued pension
     benefits are nonforfeitable, he has no assurance that
     he will ultimately receive a pension. Thus, pension
     rights which have slowly been stockpiled over many
     years may suddenly be lost if the employee leaves or
     loses his job prior to retirement. Quite apart from
     the resulting hardships * * * such losses of pension
     rights are inequitable, since the pension contributions
     previously made on behalf of the employee may have been
     made in lieu of additional compensation or some other




     4
       While 29 U.S.C. sec. 1002(6) (1994) defines “employee” as
“any individual employed by an employer”, 29 U.S.C. sec. 1002(7)
(1994) defines “participant” more expansively to include “any
employee or former employee”. (Emphasis added.) The terms
“employee” and “former employee” are not interchangeable.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-118
(1989). Additionally, while the definition of the term “accrued
benefit” under 29 U.S.C. sec. 1002 (23) is “an individual’s
accrued benefit”, we find no indication that this term has a
different meaning for purposes of sec. 411(d)(6).
                               - 16 -

     benefits which he would have received. [S. Rept.
     93-383, at 45 (1974), 1974-3 C.B. (Supp.) 80, 124.5]

     There appears to be only one case that has addressed the

issue of whether a retirement supplement is an accrued benefit

for participants who retired before the supplement was added to a

plan.    The case of Scardelletti v. Bobo, 1997 U.S. Dist. LEXIS

14498 (D. Md. Sept. 8, 1997), addressed the Transportation

Communication International Union (TCU) Staff Retirement Plan

(TCU plan).   In 1991, the TCU plan’s former trustees recommended

an automatic COLA on the basis of the advice of the plan’s former

actuary.   By 1993, a new actuary had concluded that the former

actuary’s calculations were erroneous and that the plan could not

afford an automatic COLA.   The TCU Executive Council froze the

automatic COLA for future service accruals for active employees,

and the TCU plan’s current trustees sued the former trustees

under ERISA for breach of fiduciary duty.   The current trustees

alleged that, by following the earlier actuary’s advice, the

former trustees had significantly increased the plan’s funding

requirements.   The former trustees defended by arguing that the



     5
       Other portions of the legislative history are not
particularly helpful in this case. They describe accrued
benefits in terms of what they are not: “In the case of a
defined benefit plan * * * The term “accrued benefit” refers to
pension or retirement benefits and is not intended to apply to
certain ancillary benefits, such as medical insurance or life
insurance”. H. Rept. 93-807, at 60 (1974), 1974-3 C.B. 236, 295.
The parties agree that the NPF COLA is a retirement benefit and
not an ancillary benefit.
                               - 17 -

current trustees could have mitigated plan losses by eliminating

the automatic COLA for participants who retired before its

effective date in 1991.

     In its opinion, the District Court explained the purpose of

section 411(d)(6) by observing that “if an employee works with

the expectation that she is earning, and will receive, a pension

benefit, an employer may not later decide not to give her the

benefit that it has promised and she has earned.”      Id.   Citing

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511 (1981),

the District Court noted that “The purpose of the requirement [in

section 411(d)(6)] is to protect that which an employee has been

promised and has earned over time.”     Scardelletti v. Bobo, supra.

The court explained that “The question in our case is purely

whether a later-added benefit may be considered an accrued

benefit.”   Id. at n.7.   The court concluded that the COLA “was

not an accrued benefit” as to participants who retired before the

COLA was adopted in 1991, because those participants “did not

work with the expectation that they would receive a COLA.”      Id.

     Other courts have stressed the principle that an accrued

benefit is one that is promised to the employee, accrued by the

employee during his or her tenure as an employee, and expected by

the employee to be available upon retirement.    In Hickey v.

Chicago Truck Drivers Union, 980 F.2d 465 (7th Cir. 1992), for

example, a union’s defined benefit pension plan was amended to
                              - 18 -

add a COLA to all retirement benefits.   In 1987, the plan was

terminated without provision for the funding of future COLAs.

Ms. Hickey and other plan participants brought an action to

preserve the COLA.   They contended that the COLA was part of

their monthly accrued retirement benefit and could not be

eliminated without violating 29 U.S.C. sec. 1054(g), the

equivalent provision to section 411(d)(6).   The Court of Appeals

for the Seventh Circuit agreed with Ms. Hickey, finding that the

COLA benefit could not be reduced by amendment.   The Court of

Appeals observed that

     A participant’s right to have his basic benefit
     adjusted for changes in the cost-of-living accrued each
     year along with the right to the basic benefit. A
     participant’s entitlement to his or her normal
     retirement benefit included, as one component, the
     right to have the benefits adjusted pursuant to the
     COLA provision. [Id. at 469.]

     Similarly, in Shaw v. Intl. Association of Machinists &

Aerospace Workers Pension Plan, 750 F.2d 1458 (9th Cir. 1985),

the plan included a “living pension” feature.   The living pension

was analogous to a COLA benefit, because it provided for

adjustment of the benefit after retirement by substituting in the

benefit formula the current monthly salary of the retiree’s old

job in place of the retiree’s final monthly salary.   The plan in

Shaw was amended in 1976 to decrease the living pension feature

and suit was brought by a participant who had retired in 1975.

Id. at 1460.   The court in Shaw emphasized that the entire
                              - 19 -

pension benefit-–including the living pension feature-–was

“promised, anticipated and accrued.”   Id. at 1466.    It explained:

          Congress determined “that despite the enormous
     growth in * * * [pension] plans many employees with
     long years of employment are losing anticipated
     retirement benefits owing to the lack of vesting
     provisions in such plans.” 29 U.S.C. § 1001(a). The
     Supreme Court has held, “Congress through ERISA wanted
     to ensure that ‘if a worker has been promised a defined
     pension benefit upon retirement – and if he has
     fulfilled whatever conditions are required to obtain a
     vested benefit – * * * he actually receives it.’”
     [Citations omitted.] Thus, the material available for
     interpreting ERISA’s definition of “accrual” always
     refers to the terms of the pension plan itself. It is
     those terms that raise the anticipa[tion of] of
     retirement benefits that Congress sought to protect and
     the “promised * * * defined pension benefit” that the
     Supreme Court has sought to protect. [Id. at
     1465-1466.]

     The courts in Hickey and Shaw ruled that the COLA adjustment

and the living pension feature, respectively, formed part of the

participants’ accrued benefit and could not be eliminated.    In so

holding, both courts reasoned that the benefit supplement

involved had been promised to and relied on by affected employees

while they were employed.   Respondent points out, however, that

neither court made a distinction between those retirees who had

left employment before the retirement benefit was adopted and

those who retired after the COLA was adopted.   (In Hickey, the

COLA was adopted in 1973, and terminated in 1987.     In Shaw, no

mention is made of when the “living pension” provision was
                               - 20 -

adopted, although it was eliminated in 1976.6)   Respondent

submits that this Court should adopt the rationale of Hickey v.

Chicago Truck Drivers Union, supra, and decline to distinguish

between the case of participants who retire before a COLA is

adopted and those who retire afterwards.    Respondent cites

language in Hickey to the effect that--

     viewing the Plan as a whole, the COLA is an essential
     element of the normal retirement benefit. The COLA
     ensures that the retirement benefits will not diminish
     in real value over time. It provides the additional
     retirement income each month that is necessary to
     maintain the value of the retirement benefits. [Id. at
     468.]

     Respondent’s argument would have some force if the opinion

in Hickey had made an affirmative holding that the COLA was an

accrued benefit for pre-1974 retirees.    It did not.   We instead

accept the conclusion of the court in Scardelletti v. Bobo,

supra, which found Hickey to be distinguishable.    In the case

before it, the court in Scardelletti observed that “Here,

beneficiaries who retired before 1991 did not accrue any COLA

benefit.”   Id.   The court stated:

          Although * * * the Hickey court did not
     distinguish between pre-1973 and post-1973 retirees, it
     does not necessarily follow that that distinction is
     irrelevant for determining whether the benefits were


     6
       In Shaw v. Intl. Association of Machinists & Aerospace
Workers Pension Plan, 563 F. Supp. 653, 655 (C.D. Cal. 1983),
the District Court’s opinion is silent on this fact as well,
although it does quote from a description of the “living trust”
dated 1969, some 6 years before the plaintiff retired and some 7
years before the “living pension” was terminated.
                              - 21 -

     accrued. It is most likely that there were few pre-
     1973 retirees still receiving benefits under that plan,
     and that the issue was not even raised in that case.
     There is certainly no indication from the court’s
     opinion that it was raised by the parties. [Id.]

     We conclude that the provisions of ERISA are meant to

preserve only those retirement benefits accrued by an employee

during his tenure as an employee.   This conclusion follows from

the language of section 411(a)(7) that defines an accrued benefit

as one of an “employee” “commencing at normal retirement age”.

The same conclusion follows from the legislative history

emphasizing ERISA protection of pension rights which have been

“slowly stockpiled” and from the cases which maintain that ERISA

benefits were those which were “promised, anticipated, and

accrued.”

     Respondent argues, in the alternative, that “if the NPF COLA

benefit is not considered to be an accrued benefit, it appears to

fit within the definition of a retirement-type subsidy” within

the meaning of section 411(d)(6)(B)(i).7     We disagree.   The

concept of a retirement-type subsidy has an accepted meaning as

it is used in section 411(d)(6)(B)(i).     It does not refer to

postretirement COLAs.   It refers to amounts paid to early

retirees above their normal pension benefits.


     7
       Petitioner maintains that respondent’s alternate arguments
were not made in a timely fashion and that respondent thus bears
the burden of proof as to these arguments under Rule 217. In
view of our disposition of these issues, we need not decide where
the burden of proof lies.
                               - 22 -

     Pension plans frequently provide for early retirement

benefits.   Such early retirements often commence at age 55 and

require the fulfilment of a minimum period of service.    The value

of the early retirement benefit is calculated by first

determining the amount that would be payable to the participant

at normal retirement age, given the participant’s service and

compensation as of the date of early retirement.    This value is

then reduced by a factor reflecting that benefit payments will

begin earlier than was contemplated and, therefore, are likely to

continue for a longer period of time.   Often, however,

early-retiring employees are provided benefits which are not so

reduced.    “The provision of an early retirement benefit greater

than the actuarial equivalent of the normal retirement benefit is

referred to as a subsidized early retirement.”     Bellas v. CBS,

Inc., 221 F.3d 517, 525 (3d Cir. 2000) (citing McGill & Grubbs,

Fundamental of Private Pensions 131-135 (6th ed. 1989)); see,

e.g., Rybarczyk v. TWR, Inc., 235 F.3d 975, 978 (6th Cir. 2000)

(“The benefit received by early retirees was called, in the

jargon of the cognoscenti, a ‘subsidized’ benefit.”).8


     8
       See also Dade v. N. Am. Phillips Corp., 68 F.3d 1558, 1562
n.1 (3d Cir. 1995) (citing Bruce, Pension Claims Rights and
Obligations 285 (1993)) (benefits paid under an early retirement
program, in light of sec. 411(d)(6)(B)(i), “are considered early
retirement subsidies because ‘more is provided * * * than any
reasonable actuarial equivalent of the plan’s normal retirement
benefits.’”); Ashenbaugh v. Crucible, Inc., Ret., 854 F.2d 1516,
1521 n.6, 1528 n.12 (3d Cir. 1988) (benefits to an employee
                                                   (continued...)
                               - 23 -

     Section 411(d)(6)(B)(i) was added to the Code in 1984, as

part of the Retirement Equity Act (REA), Pub. L. 98-397, 98 Stat.

1426 (1984).   Before the REA, the anticutback rules did not

explicitly preclude plan amendments that reduced or eliminated

early retirement benefits or retirement-type subsidies.    Because

many early retirement programs provided a benefit commencing

before normal retirement age, such a benefit was found not to

fall within the definition of an “accrued benefit”.     Bellas v.

CBS, Inc., supra at 523 n.2.   The REA provided that an employee

would be protected from a plan amendment reducing his or her

early retirement benefit or retirement-type subsidy.9    It did

not, however, affect the type of COLAs that are at issue here.

     Moreover, even if we assume for the sake of argument that

the NPF COLAs were “retirement-type subsidies”, they would not be

nonforfeitable under section 411(d)(6)(B)(i) as to those who

retired before the NPF COLA amendments became effective.    By

treating retirement subsidies as if they were accrued benefits,

the REA broadens the scope of benefits protected under the


     8
      (...continued)
retiring before normal retirement age “still have value in excess
of the amount that would be available to a retiring employee
under the comparable actuarially-reduced normal retirement
benefit provisions. We agree * * * that this excess value is a
subsidy.”).
     9
       Congress contemplated that the Treasury Department would
promulgate regulations defining the term “retirement-type
subsidy”. See sec. 411(d)(6)(B)(ii); see also 29 U.S.C. sec.
1054(g)(2)(A). The Treasury Department has yet to do so.
                                - 24 -

anticutback rule.    It does not, however, expand the category of

persons who may accrue such benefits.      Even after passage of the

REA, section 411(a)(7) still provides that the benefits protected

by the anticutback rule may be accrued only by employees.      We

conclude that the “retirement-subsidy” provisions of section

411(d)(6)(B)(i) do not serve as a basis for disqualifying the

Plan.

     The fact that the NPF COLA did not come into effect until

1991 presents the question of whether, in providing the ad hoc

payment from the NPF Fund for 1986 through 1990, the Trustees are

deemed to have provided the NPF COLA benefits under the Plan

before 1991, pursuant to section 1.411(d)-4, Q&A-1(c)(1), Income

Tax Regs.10    Respondent maintains that the pre-1991 series of ad


     10
          Sec. 1.411(d)-4, Q&A-1(c)(1), Income Tax Regs., provides:

                 (c) Plan terms. (1) General rule.
            Generally, benefits described in section
            411(d)(6)(A), early retirement benefits,
            retirement-type subsidies, and optional forms
            of benefit are section 411(d)(6) protected
            benefits only if they are provided under the
            terms of a plan. However, if an employer
            establishes a pattern of repeated plan
            amendments providing for similar benefits in
            similar situations for substantially
            consecutive, limited periods of time, such
            benefits will be treated as provided under
            the terms of the plan, without regard to the
            limited periods of time, to the extent
            necessary to carry out the purposes of
            section 411(d)(6) * * * .

                 (2) Effective date.     The provisions of
                                                        (continued...)
                                - 25 -

hoc payments from the NPF Fund established a pattern of repeated

plan amendments providing for similar benefits in similar

situations for substantially consecutive, limited periods of

time.     Hence, respondent argues, the ad hoc payments are treated

under section 1.411(d)-4, Q&A-1(c)(1), Income Tax Regs., as

permanent, nonforfeitable features of the Plan, without regard to

the 1-year period of time actually provided in the amendments.

     Respondent published Rev. Rul. 92-66, 1992-2 C.B. 93,

describing operation of rules regarding a pattern of repeated

plan amendments.     That ruling provides:

          Whether the recurrence of plan amendments
     constitutes a pattern of amendments within the meaning
     of section 1.411(d)-4 of the regulations is determined
     on the basis of the facts and circumstances. Although
     no one particular fact is determinative, relevant
     factors include: (i) whether the amendments are made on
     account of a specific business event or condition; (ii)
     the degree to which the amendment relates to the event
     or condition; and (iii) whether the event or condition
     is temporary or discrete or whether it is a permanent
     aspect of the employer’s business. [Id.]

     The ruling addressed an employer’s decision to offer an

early retirement “window” to its employees during each of 3

consecutive years of adverse business conditions.     In the fourth



     10
          (...continued)
              paragraph (c)(1) of this Q&A-1 are effective
              as of July 11, 1988. Thus, patterns or [sic]
              repeated plan amendments adopted and
              effective before July 11, 1988 will be
              disregarded in determining whether such
              amendments have created an ongoing optional
              form of benefit under the plan.
                               - 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 the
                               - 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, in
                              - 28 -

1990, petitioner decided to change the COLA payments from a

series of ad hoc payments into a permanent part of the plan.      On

these facts, we cannot say that, under section 1.411(d)-4, Income

Tax Regs., the two ad hoc payments made to supplement the COLA

for 1989 and 1990 represented a pattern of amendments that

requires us to deem those two ad hoc payments as part of the NFC

Plan before 1991.   We recognize that, absent the required

prospective application of the 1988 regulation, the chronic

shortfall of the COLA funding from 1985 through 1991 might

suffice to show that the persistent shortfalls were not really

separate or transitory business events, but were rather

indications of a continuous feature of the plan.     As noted,

however, section 1.411(d)-4, Q&A-1(c)(2), Income Tax Regs.,

precludes us from considering events before July 11, 1988.

     We conclude that the 1995 plan amendments, although they

removed COLA benefits which had been provided to the pre-1991

retirees, did not violate the anticutback provisions of section

411(d)(6).   In so concluding, we find without merit all arguments

not discussed herein.   Accordingly,

                                       Decision will be entered

                               for petitioner.
