The Pension Benefit Guaranty Corporation
and Single-Employer Plan Terminations
Jennifer Staman
Legislative Attorney
Erika K. Lunder
Legislative Attorney
September 1, 2011
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The Pension Benefit Guaranty Corporation and Single-Employer Plan Terminations

Summary
Recent economic conditions have generated attention with respect to the Pension Benefit
Guaranty Corporation (PBGC) and defined benefit pension plans, including the process for
terminating plans. The Employee Retirement Income Security Act (ERISA) regulates plan
terminations. It provides for three types of single-employer plan terminations—standard, distress,
and involuntary—and imposes different responsibilities on the PBGC for each type.
A standard termination occurs when a plan administrator decides to terminate a plan that has
assets sufficient to meet its benefit liabilities. The PBGC’s involvement in a standard termination
is minimal, with its role basically limited to confirming all legal requirements have been met. In a
standard termination, the plan sponsor has no further liability to the PBGC or plan participants.
The sponsor may be able to recapture any assets remaining after participants have received their
share, although the reversion may be subject to tax.
A distress termination occurs when a plan administrator seeks to terminate a plan that does not
have sufficient assets to cover all the benefits owed to plan participants and beneficiaries. The
PBGC is responsible for ensuring that all criteria for termination have been met, as well as for
determining whether the plan’s assets are sufficient to pay the guaranteed benefits and/or meet all
benefit liabilities. Meanwhile, the plan sponsor and members of its controlled group are jointly
and severally liable to the PBGC for the amount that the benefit liabilities exceed plan assets,
with interest, at termination.
An involuntary termination occurs when the PBGC decides a plan should be terminated. The
agency must initiate termination proceedings once it determines a plan does not have assets
available to pay benefits currently due. It may seek termination under certain circumstances,
including the plan has not met the minimum funding requirements; the plan will not be able to
pay benefits when due; or the long-run loss to the PBGC may be expected to increase
unreasonably if the plan is not terminated. In an involuntary termination, the sponsor and
controlled group are jointly and severally liable to the PBGC for the unfunded liabilities.
The PBGC is broadly authorized to make any investigation it deems necessary to enforce ERISA
and may assess a penalty against anyone who fails to provide a required notice or other material
information. In addition, plan participants, beneficiaries, fiduciaries, and sponsors who are
adversely affected by an action of another that violates the termination provisions may file suit in
U.S. district court to enjoin the action or obtain other equitable relief. Employee organizations
representing affected participants and beneficiaries are also able to file a claim, and the PBGC has
the right to intervene in any action.
Finally, if the PBGC determines that a plan should not be terminated, it may stop the termination
proceedings and restore the plan. It even has the authority to restore a terminated plan.
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The Pension Benefit Guaranty Corporation and Single-Employer Plan Terminations

Contents
Types of Terminations...................................................................................................................... 1
Standard Termination................................................................................................................. 1
Distress Termination.................................................................................................................. 2
Involuntary Termination ............................................................................................................ 3
Employer Liability........................................................................................................................... 5
Standard Termination................................................................................................................. 5
Distress Termination.................................................................................................................. 5
Involuntary Termination ............................................................................................................ 5
Attempt To Evade Liability ....................................................................................................... 6
Enforcement and Penalties............................................................................................................... 6
Plan Restoration............................................................................................................................... 6


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The Pension Benefit Guaranty Corporation and Single-Employer Plan Terminations

ue to the recent economic decline, there has been concern about the pensions of
employees if the companies offering these pensions were to fail. The Employee
D Retirement Income Security Act of 1974 (ERISA), which provides a comprehensive
federal scheme for the regulation of pension and other employee benefit plans, includes a plan
termination insurance program for defined benefit pension plans.1 Various types of pension plans
are not covered by the insurance program, including defined contribution plans (individual
account plans),2 government plans, and church plans.3 The insurance program distinguishes
between single-employer plans and multiemployer plans (i.e., collectively bargained plans to
which more than one company makes contributions). This report discusses only the termination
of single-employer plans.
The insurance program is administered by the Pension Benefit Guaranty Corporation (PBGC).
The PBGC has two primary responsibilities. First, it oversees plan terminations, which is the
focus of this report. Second, the PBGC pays the guaranteed benefits of terminated plans, subject
to statutory limitations. For more information on the PBGC and its payment of benefits, see CRS
Report 95-118, Pension Benefit Guaranty Corporation (PBGC): A Fact Sheet, by John J.
Topoleski.
This report provides an overview of the three types of plan terminations and the PBGC’s role in
each type of termination. The report also provides a brief overview of the liability of an employer
following a plan termination, enforcement and penalties relating to the plan termination
provisions, and the ability of the PBGC to restore a plan.
Types of Terminations
ERISA provides for three types of single-employer plan terminations: standard, distress, and
involuntary. The plan administrator initiates a standard or distress termination, whereas the PBGC
initiates an involuntary termination.
Standard Termination
A standard termination occurs when a plan administrator decides to terminate a plan that has
assets sufficient to meet its benefit liabilities.4 The plan administrator initiates the termination by
giving written notice to each affected party5 of the intent to terminate the plan between 60 and 90

1 Defined benefit plans are those where participants are promised a specified future benefit, which traditionally is an
annuity beginning at retirement. For defined benefit plans, the employer bears the investment risk and is responsible for
any shortfalls. ERISA § 3(35); 29 U.S.C. § 1002(35).
2 A defined contribution plan is a pension plan in which the contributions are specified, but not the benefits. A defined
contribution plan provides an individual account for each participant that accrues benefits based solely on the amount
contributed to the account and any income, expenses, and investment gains or losses to the account. See ERISA §
3(34); 29 U.S.C. § 1002(34).
3 ERISA § 4021(b); 29 U.S.C. § 1321(b).
4 ERISA § 4041(b); 29 U.S.C. § 1341(b).
5 Affected parties include plan participants, beneficiaries (of deceased participants or alternate payees under a qualified
domestic relations order), alternate payees under qualified domestic relations orders, employee organizations
representing plan participants, and any person who has been designated to receive notice on behalf of an affected party.
ERISA § 4001(a)(21); 29 U.S.C. § 1301(a)(21).
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days in advance of the proposed termination date.6 He or she must then report information about
the plan to the PBGC, including a certification by an enrolled actuary that the plan’s assets are
sufficient to meet all benefit liabilities.7 The plan administrator is also responsible for informing
the plan participants and beneficiaries of the benefits due them, as well as information used in
determining benefit liabilities.8
The PBGC’s involvement in a standard termination is minimal, and its role is basically to confirm
that the above requirements have been met. Upon receiving the plan information, the PBGC
generally has 60 days to review it and either approve the termination or send out a notice of
noncompliance.9 If the PBGC determines the requirements have been met, the termination
proceeds. The plan administrator then distributes the plan’s assets to participants and beneficiaries
by purchasing annuities from a commercial insurer or by other permissible means.10 If there are
missing participants, the plan administrator may, after a diligent search, purchase an annuity for
these individuals or transfer their distributions to the PBGC, which will hold them until the
participants are found.11 The plan administrator’s final action is to certify to the PBGC that the
assets have been distributed,12 and the plan is terminated.
Distress Termination
A distress termination occurs when a plan administrator seeks to terminate a plan that does not
have sufficient assets to cover all the benefits owed to plan participants and beneficiaries.13 The
plan may be terminated only if certain criteria are met, such as if its contributing sponsor, or a
member of the sponsor’s controlled group14 (1) has filed (or has had filed against such person) a
petition for liquidation or reorganization in bankruptcy or insolvency proceedings,15 and certain
other requirements have been met, or (2) has demonstrated that termination is required to enable
payment of debts while staying in business or to avoid unreasonably burdensome pension costs
caused by a declining workforce.16

6 ERISA § 4041(a)(2); 29 U.S.C. § 1341(a)(2); 29 C.F.R. § 4041.23(a).
7 ERISA § 4041(b)(2)(A); 29 U.S.C. § 1341(b)(2)(A).
8 ERISA § 4041(b)(2)(B); 29 U.S.C. § 1341(b)(2)(B).
9 ERISA § 4041(b)(2)(C); 29 U.S.C. § 1341(b)(2)(C).
10 ERISA § 4041(b)(3); 29 U.S.C. § 1341(b)(3).
11 ERISA § 4050; 29 U.S.C. § 1350.
12 ERISA § 4041(b)(3)(B); 29 U.S.C. § 1341(b)(3)(B).
13 ERISA § 4041(c); 29 U.S.C. § 1341(c).
14 For purposes of the plan termination provisions, “controlled group” means, in connection with any person, a group
consisting of such person and all other persons under common control with such person,” as determined under PBGC
regulations. ERISA § 4001(a)(14); 29 U.S.C. § 1301(a)(14).
15 The Pension Protection Act of 2006 (P.L. 109-280, § 404) amended the law to require that certain determinations,
including the calculation of the plan participants’ guaranteed benefits, be made using the date the bankruptcy petition is
filed, rather than the plan’s actual termination date. ERISA §§ 4022(g), 4044(e); 29 U.S.C. §§ 1322(g), 1344(e). This
affects both distress and involuntary terminations (discussed below), and one consequence is that post-bankruptcy
accruals are no longer guaranteed. In June 2011, the PBGC finalized regulations implementing the act’s provisions. See
Bankruptcy Filing Date Treated as Plan Termination Date for Certain Purposes, 76 Fed. Reg. 34590 (June 14, 2011)
(codified at 29 C.F.R. Parts 4001, 4022, and 4044).
16 ERISA § 4041(c)(2)(B); 29 U.S.C. § 1341(c)(2)(B).
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In order to initiate a distress termination, a plan administrator must give written notice of an
intent to terminate the plan to each affected party, including the PBGC, at least 60 days and
(except with PBGC approval) not more than 90 days before the proposed termination date.17 After
the notice of intent is submitted to affected parties, the plan administrator must submit certain
additional information to the PBGC, which may include a certification by an enrolled actuary
regarding the amount of the current value of the assets of the plan, the actuarial present value of
the benefit liabilities under the plan, and whether the plan is sufficient to pay benefit liabilities.18
Based on this information, the PBGC determines whether the distress termination criteria are met
(or whether the PBGC is unable to make such a determination) and must notify the plan
administrator of its finding as soon as practicable.19
If the distress criteria have not been met, the plan continues to operate. If the criteria are met, the
PBGC must then determine whether the plan’s assets are sufficient to pay the benefits guaranteed
by the PBGC and/or meet all benefit liabilities. These amounts may be different because, as
mentioned, the benefits guaranteed by the PBGC under the plan insurance termination program
are subject to statutory limitations; therefore, the benefit liabilities owed under the plan may
exceed the benefits guaranteed by the PBGC. If the PBGC determines that the plan’s assets are
sufficient to pay benefit liabilities, a plan administrator must carry out termination of the plan
under the procedures of a standard termination, and take additional action if necessary.20
Similarly, if the PBGC determines that a plan has sufficient assets to cover guaranteed benefits,
but not benefit liabilities, the plan administrator will be required to distribute plan assets as with a
standard termination, certify to the PBGC that the distribution has occurred, and take other
actions as necessary to terminate the plan.21 If the plan’s assets are not sufficient to pay the
guaranteed benefits, the PBGC must commence involuntary termination proceedings (discussed
below).22 If the plan administrator discovers during the distribution that the plan’s assets are not
sufficient to cover benefits, he or she must notify the PBGC, which may then be required to
initiate an involuntary termination.23 If there are missing participants, the plan administrator may
purchase an annuity for these individuals, or transfer their distributions to the PBGC after a
diligent search.24
Involuntary Termination
An involuntary termination occurs when the PBGC decides a plan should be terminated.25 The
PBGC must initiate termination proceedings once it determines a plan does not have assets
available to pay benefits currently due. The PBGC may seek to terminate a plan if

17 ERISA § 4041(a)(2); 29 U.S.C. § 1341(a)(2); 29 C.F.R. § 4041.43(a).
18 ERISA § 4041(c)(2)(A); 29 U.S.C. § 1341(c)(2)(A). This additional information must be provided to other affected
parties no later than 15 days after (1) the receipt of a request for the information or (2) the provision of new information
to the PBGC relating to a previous request. ERISA § 4041(c)(2)(D); 29 U.S.C. § 1341(c)(2)(D).
19 ERISA § 4041(c)(2)(C); 29 U.S.C. § 1341(c)(2)(C).
20 ERISA § 4041(c)(3)(B)(i); 29 U.S.C. § 1341(c)(3)(B)(i).
21 ERISA § 4041(c)(3)(B)(ii); 29 U.S.C. § 1341(c)(3)(B)(ii).
22 ERISA § 4041(c)(3)(B)(iii); 29 U.S.C. § 1341(c)(3)(B)(iii).
23 ERISA § 4041(c)(3)(C); 29 U.S.C. § 1341(c)(3)(C).
24 ERISA § 4050; 29 U.S.C. § 1350.
25 ERISA § 4042; 29 U.S.C. § 1342.
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• the plan has not met the minimum funding requirements or the plan has been
notified by the Treasury Secretary that a notice of deficiency concerning the
initial tax on a funding deficiency has been mailed;
• the plan will not be able to pay benefits when due;
• a distribution of at least $10,000 has been made to a participant who is a
substantial owner of the sponsoring company and, immediately after the
distribution, the plan has unfunded nonforfeitable benefits; or
• the long-run loss to the PBGC may reasonably be expected to increase
unreasonably if the plan is not terminated.26
A trustee, who may be the PBGC, may be appointed to administer the plan until it is ordered to be
terminated.27 The trustee may be appointed by a U.S. district court upon petition by the PBGC or
plan administrator, or the PBGC and plan administrator may agree to the appointment without
court involvement. Once appointed, the trustee is responsible for the plan’s administration,
including management of the plan’s assets.28
After the PBGC has given notice to the plan administrator, the plan may be terminated in one of
two ways. First, the PBGC may file a petition with the U.S. district court for a ruling that the plan
must be terminated to protect the participants’ interests, to avoid an unreasonable deterioration of
the plan’s financial condition, or to avoid an unreasonable increase in the PBGC’s liability.29 If a
trustee has been appointed, he or she may intervene in the proceeding. The PBGC may file the
petition regardless of whether there is a pending proceeding (1) involving bankruptcy, mortgage
foreclosure or equity receivership, (2) to reorganize, conserve or liquidate the plan or its property,
or (3) to enforce a lien against the plan’s property.30 Furthermore, the court may stay any pending
proceedings that involve plan property.31 If the court agrees with the PBGC that the plan should
be terminated, the court will then appoint a trustee, or authorize the existing trustee, to terminate
the plan.
Alternatively, the PBGC and plan administrator may agree to terminate the plan without court
proceedings.32 There is no requirement under ERISA that plan participants and other interested
parties receive notice or an opportunity to be heard prior to the PBGC and plan administrator
coming to an agreement to terminate the plan.33

26 ERISA § 4042(a); 29 U.S.C. § 1342(a).
27 ERISA § 4042(b); 29 U.S.C. § 1342(b).
28 ERISA § 4042(d); 29 U.S.C. § 1342(d).
29 ERISA § 4042(c)(1); 29 U.S.C. § 1342(c)(1).
30 ERISA § 4042(e); 29 U.S.C. § 1342(e).
31 ERISA § 4042(f); 29 U.S.C. § 1342(f).
32 ERISA § 4042(c)(1); 29 U.S.C. § 1342(c)(1).
33 See In Re Jones & Laughlin Hourly Pension Plan v. LTV Steel Co., 824 F.2d 197 (2nd Cir. 1987).
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The Pension Benefit Guaranty Corporation and Single-Employer Plan Terminations

Employer Liability
Standard Termination
In a standard termination, the plan sponsor has no further liability to the PBGC or plan
participants. The plan sponsor may be able to recapture any assets remaining after participants
have received their share, which is known as a “reversion.” A reversion may be subject to an
excise tax at a 20% rate, which is increased to 50% if the plan sponsor does not take certain
actions, such as establishing a qualified replacement plan.34
Distress Termination
In a distress termination, the plan sponsor and members of its controlled group are jointly and
severally liable to the PBGC for the amount that the benefit liabilities exceed plan assets, with
interest, at termination.35 The PBGC will have a claim to recover at least some of these amounts.
If successful, the PBGC will pay some of the recovery to plan participants as additional benefits
and will keep the remaining amount to help cover its losses.
The employer’s payment for the liability is due on the plan’s termination date. The PBGC is
authorized to make arrangements with the liable parties for the payments,36 and any amount in
excess of 30% of the collective net worth of the sponsor and controlled group will be paid under
commercially reasonable terms.37 In addition, the PBGC may claim a lien for up to 30% of the
collective net worth of the sponsor and controlled group.38 The PBGC may bring a civil action in
U.S. district court to enforce the lien, which generally must be filed within six years of the plan’s
termination date. The lien has the same priority as a federal tax lien in section 6323 of the Internal
Revenue Code and is treated as a federal tax lien in bankruptcy proceedings.39
Involuntary Termination
In an involuntary termination, the sponsor and controlled group are jointly and severally liable to
the PBGC for the unfunded liabilities in the same manner as discussed above for a distress
termination. The sponsor and controlled group are also liable to the trustee for the outstanding
balance of the accumulated funding deficiencies, the outstanding balance of the funding
deficiencies waived prior to termination, and the outstanding balance of the decreases in the
minimum funding standard allowed prior to termination.40 These amounts are due, plus interest,
on the date of termination.

34 Internal Revenue Code § 4980.
35 ERISA § 4062(b)(1); 29 U.S.C. § 1362(b)(1).
36 ERISA § 4067; 29 U.S.C. § 1367.
37 ERISA § 4062(b)(2)(B); 29 U.S.C. § 1362(b)(2)(B).
38 ERISA § 4068; 29 U.S.C. § 1368.
39 ERISA § 4068(c); 29 U.S.C. § 1368(c).
40 ERISA § 4062(c); 29 U.S.C. § 1362(c).
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Attempt To Evade Liability
If a company sells or transfers a business with an underfunded pension plan in order to evade
liability and the plan is ended within five years of the sale or transfer, ERISA provides that the
company can still be treated as a contributing sponsor at the plan’s termination date.41 Thus, the
company may be held liable for the unfunded liabilities.
Enforcement and Penalties
The PBGC is broadly authorized to make any investigation it deems necessary to enforce
ERISA42 and may assess a penalty against anyone who fails to provide a required notice or other
material information.43 The penalty is limited to $1,000 for each day the failure occurs. In
addition, plan participants, beneficiaries, fiduciaries, and sponsors who are adversely affected by
an action of another (other than the PBGC) that violates the termination provisions may file suit
in U.S. district court to enjoin the action or obtain other equitable relief.44 Employee
organizations representing affected participants and beneficiaries are also able to file a claim, and
the PBGC has the right to intervene in any action.
Plan Restoration
If the PBGC determines that a plan should not be terminated, it may stop the termination
proceedings and restore the plan.45 The PBGC may even restore a terminated plan. When
determining whether a plan should be restored, the PBGC may look at subsequent pension plans
sponsored by the employer.46 The PBGC may be particularly interested in any subsequent plan
that appears to be a “follow-on plan.” A follow-on plan is designed so that when its benefits are
added to the benefits being paid by the PBGC under the termination insurance program for the
first plan, the total benefits are roughly the same as the first plan’s benefits. Thus, the employees
receive approximately what they expected to receive under the first plan, but the PBGC, rather
than the employer, is responsible for paying some of the benefits.



41 ERISA § 4069; 29 U.S.C. § 1369.
42 ERISA § 4003(a); 29 U.S.C. § 1303(a).
43 ERISA § 4071; 29 U.S.C. § 1371.
44 ERISA § 4070; 29 U.S.C. § 1370.
45 ERISA § 4047; 29 U.S.C. § 1347.
46 See PBGC v. LTV Corp., 496 U.S. 633 (1990).
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