Section of Taxation
Employee Benefits Committee Comment

COMMENTS CONCERNING AGE DISCRIMINATION ISSUES IN
CASH BALANCE PENSION PLANS

I | II | IV | V | VI | VII

III. Interest Credit Issue

  1. Issue: Does the operation of the interest credit in cash balance plans inherently discriminate because of age in a prohibited manner?

    Interest credits are generally available until the participant takes a complete distribution from the plan, regardless of his or her age or whether he or she is still employed by the plan sponsor. In most plan designs, the same rate of interest credit is available to both older and younger participants. In order to comply with the limits on backloading, a frontloaded interest credit plan treats all interest credits through normal retirement age as accrued in the same year as the contribution credit. Under this approach, the younger worker has a longer period of time over which to accrue interest credits on the pay-based credits received early in his career. For example, suppose a 25 year old participant and a 50 year old participant (who have the same compensation) each receive a pay credit equal to 5 percent of compensation in 1999; at age 65, this pay credit will have a higher nominal value for the younger participant because it has a longer period of time over which to earn interest credits when interest credits are projected to age 65 (assuming that both participants take complete distributions at age 65 and not prior to that time).

    Furthermore, when cash balance accounts are converted to annuities commencing at normal retirement age, in many cash balance plans the increases in the annuity beginning at normal retirement age decline as a participant grow older. This decreasing normal retirement age annuity results primarily from the frontloading of interest credits as required by Notice 96-8, and is heavily dependent on the actuarial assumptions selected. With a different assumption as to salary increases, a low normal retirement age, or age-weighted pay based credits, the annuity at normal retirement age might not decrease, depending on the values and assumptions used. Even though the declining annuity at normal retirement age is not an inherent feature of cash balance plans, as different patterns of pay-based credits or interest credits or a different assumption as to salary increases or normal retirement age could eliminate the effect, the declining annuity has been the focus of the age discrimination analysis.
     

  2. Analysis
     
    1. Application of section 411(b)(1)(H) of the Code
       
      1. Normal Retirement Age as Years to Payment

        A critical element of all defined benefit plans is an assumed payment date, which under the Code, is the normal retirement date. It is the combination of the use of a normal retirement date and the method of accruing interest credits to comply with the anti-backloading requirements that leads to the concern that interest credits are discriminatory.

        For example, in the case of a 45-year old employee, Notice 96-8 requires that a cash balance plan must project forward the interest credit earned for the plan year to calculate the incremental portion of the normal retirement age (assume it is age 65) annuity that the 45-year old accrues for that year. If the plan does the same calculation for a 55-year old employee, the interest will be projected forward only 10 years (compared to 20 years for the 45-year old), and the incremental annuity earned by that older employee will look smaller than the incremental annuity earned by the younger employee. However, the calculations being compared are not the same. The 45-year old employee’s interest credits are being projected forward 20 years, but the 55-year old employee’s interest credits are projected forward only 10 years. If the plan were to project the 55-year old’s interest credits for the same time span as the 45-year old’s (20 years to payment), the incremental annuity earned by the 55-year old would, because of his shorter life expectancy, be greater than that earned by the younger employee. Indeed, if interest credits are treated as accruing in the year to which they are actually credited, not only is the plan not discriminatory, the disparity in accrual rates so heavily favors older workers that the plan will not comply with the limits on backloading.

        Comparisons of immediate annuities earned by employees of different ages yield a result that can be more accurately compared. If a plan were to take the annual hypothetical contribution for the 45-year old and calculate an annuity that would be payable immediately to that employee, the calculation would yield a benefit accrual that is properly comparable to the same calculation (for an immediate annuity) for a 55-year old. In fact, because of the shorter life expectancy of the 55-year old, his accrual for the year would be greater than the accrual for the 40-year old. Comparisons of immediate lump sum amounts earned by these hypothetical employees underscore the conclusion that employees are not treated differently because of different ages. For example, the interest credits for the 45-year old will be projected forward for 20 years, but then discounted back in a plan with a safe harbor interest credit rate. In this example, the immediate lump sum amount for the 55-year old will never be less than that of the younger employee.

        What these comparisons show is that age is not the reason that the younger employees appear to have higher accruals -- the key factor that makes the difference is the number of years to payment. Because pension plans must be designed taking into account an assumed payout date (normal retirement age), plans base their benefit accrual calculations on that date for all participants, regardless of age. This is completely consistent with the requirements of section 4(i)(8) of the ADEA, which recognizes the legitimacy of setting a normal retirement age in a pension plan. In addition, the Code and section 4(l)(1)(A) of the ADEA permit plans to provide for the attainment of a minimum age as a condition of eligibility for normal or early retirement benefits. These are statutory recognitions of the need for a pension plan to set a normal retirement age.

        It is also important to note that if interest credits were not required to be frontloaded under Notice 96-8, the age 65 annuity would not have to decline. Because of the Service’s interpretation of the anti-backloading rules, under most plans future interest credits accrue at the time that the underlying pay-based credit is made, even though the interest credits are not actually granted until future years conclude. Without Notice 96-8, interest credits would probably be considered to accrue ratably over time, as actual interest accrues. Accordingly, to the extent that the decline in the age 65 annuity results from the frontloading of interest credits, the declining age 65 annuity exists "because of" governmental interpretations of law, not "because of" age.

        Moreover, most cash balance plans are designed to provide the participant with an account, and are communicated to participants as such. In such a plan, the age 65 annuity benefit is a mechanical device used to comply with Service regulations and positions, but it has no economic meaning where the interest credit rate and discount rate are the same (or within the Notice 96-8 safe harbor). The participant is simply entitled to the account. The declining age 65 annuity results in part from accruing the interest credits in the year the related pay credit is accrued, in an effort to comply with Notice 96-8. In the absence of the Notice, participants’ economic benefit would increase with age.
         

      2. Rate of Accrual, not Rate of "Accrued Benefit"

        Section 411(b)(1)(H) of the Code prohibits decreases in the "rate of an employee’s benefit accrual" because of age. This phrase is not defined in the Code and is not defined in the proposed regulations under section 411(b)(1)(H) of the Code or any other Service authority. Some have asserted that the phrase means something like "rate of increase in the employee’s accrued benefit," in which case the well-established definition of accrued benefit would apply. The "accrued benefit" is defined in section 411(a)(7) of the Code as an annuity starting at normal retirement age. Even if the term "accrued benefit" were improperly imported, it would still be unclear what "rate" would mean – does rate mean the accrued benefit expressed as a percentage of a participant’s compensation? Or does it mean the percentage increase over the prior year’s annuity at normal retirement age? These questions highlight the fact that section 411(b)(1)(H) requires some degree of interpretation.

        Given the differences in statutory language between sections 411(a)(7) and 411(b)(1)(H), the better view is that the "rate of an employee’s benefit accrual" means something different from an employee’s "accrued benefit," which is expressed as a normal retirement age annuity for purposes of testing compliance with the vesting and backloading rules. Congress could have used the term "accrued benefit," and did not do so. Therefore, the issue of what happens to the normal retirement age annuity when age increases is irrelevant for this purpose. Moreover, the reference to early retirement subsidies (which are not part of the accrued benefit) in section 411(b)(1)(H)(v) would be unintelligible if the body of section 411(b)(1)(H) were in fact referring to the "accrued benefit."

        This interpretation squares with the existence of contributory defined benefit plans and variable annuity plans. The benefit formula of a contributory defined benefit plan is similar to cash balance plans, in that the formula requires the contribution of a fixed percentage of participant’s compensation upon which earnings are credited. These plans would violate section 411(b)(1)(H) if the rate of benefit accrual meant the rate of change in the normal retirement age annuity as a percentage of current compensation. While the Service has not issued formal guidance on indexed traditional defined benefit plans, it has a long history of guidance on variable annuity plans.7 Variable annuity plans comply with the definitely determinable benefit rule and the accrual rules on the basis of the annuity benefit accrued under the plan formula, without consideration of the future value of the increase in the benefit (unlike what happens under Notice 96-8 with the interest credit). Accordingly, alternative definitions of the "rate of accrual" under section 411(b)(1)(H) of the Code should be accommodated in deference to the Service’s positions on other types of benefit plans.

        The proposed regulations under section 411(b)(1)(H) of the Code also appear to suggest that protected benefits, rights and features should be analyzed to determine whether the plan formula complies with section 411(b)(1)(H) of the Code. This approach would not be the case if only the "accrued benefit" were at issue. See Prop. Reg. § 1.411(b)-2(d). In a typical cash balance plan, older and younger employees generally receive the same set of rights and features and the same benefit formula. (Actually, in many cases, older employees receive higher pay-based credits because plan designs are weighted for service or a combination of age and service.) This set of rights and features includes a right that arises at the time an allocation of a pay credit is made to the participant’s account – the right to have interest credited to his or her account in the future as service is performed and credited under the plan. Accordingly, the thinking behind proposed regulations would suggest that cash balance plans do not violate section 411(b)(1)(H) of the Code.

        All plan documents must define an employee’s rate of benefit accrual in order to determine a benefit, and using the plan document to define the "rate of benefit accrual" for purposes of section 411(b)(1)(H) would be consistent with the language of that Code section, which requires that "under the plan, …the rate of an employee’s benefit accrual" cannot be reduced. Using the plan document would enable plan sponsors to show that a typical cash balance plan design, which provides uniform pay-based credits, does not discriminate on the basis of age.
         

      3. "Equal Cost" is Relevant

        The age discrimination issue can also be analyzed from another perspective. If the cash balance plan design were measured against the "equal cost or equal benefit" requirement of section 4(f)(2)(B)(i) of the ADEA, the frontloading of interest credits and the calculation of single sum distributions would clearly be lawful. (This provision allows employers to take otherwise prohibited actions when they are observing the terms of a bona fide employee benefit plan, and where for each benefit or benefit package, the amount of benefit or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker.) Assuming that the hypothetical annual contribution to the hypothetical account is calculated on an age-neutral basis (such as a percentage of salary), the employer will meet the "equal cost" leg of this test. It is true, of course, that the ADEA includes more specific rules relating to pension plans, including the section 4(i)(1)(A) prohibition against reducing accruals because of age, and therefore, some practitioners believe that the "equal cost" analysis is not applicable to pension plans. However equal cost is relevant as a general principle of ADEA interpretation at the time section 411(b)(1)(H) was enacted, and there is no evidence that Congress intended to upset this general rule through enactment of its other changes to ADEA at that time.
         

    2. Implications of Case Law

      No court has yet decided how to read section 411(b)(1)(H) of the Code in light of Hazen Paper,8 and no court has yet examined the accrual of future interest credits under a cash balance plan against the requirements of the ADEA. However, the case law cited previously announced broadly applicable principles under the ADEA, and the analysis in those cases should be applicable under section 411(b)(1)(H) of the Code. Although compliance with section 4(i) of ADEA (including a parallel provision to section 411(b)(1)(H) under ADEA) technically may be the exclusive means of complying with ADEA for defined benefit plan accruals, interpretations of that section should be consistent with other case law interpreting ADEA. Otherwise, an anomalous situation could result under which a plan could comply with broad age discrimination rules and fail to comply with a rule that was intended to clarify such principles.

      As indicated above in the discussion of case law, a finding of age discrimination requires a finding of specific intent to discriminate against older workers. The language of section 411(b)(1)(H) on its face requires that only intentional discrimination be prohibited; under that Code section accruals must decrease "because of age." As previously described, courts have generally interpreted this "because of age" requirement to mean intentional discrimination only. Legislative history (the Conference Report cited at Footnote 6) also states that the new statute requires that "… a defined benefit plan may not provide that … the rate of an employee’s benefit accrual or contribution is reduced solely because of the employee’s age before the employee accrues the maximum normal retirement benefit under the plan." The Proposed Treasury Regulations also support this interpretation, as they state that a violation of section 411(b)(1)(H) does not occur "solely" because of a positive correlation between increased age and a reduction in benefit accruals. Prop. Reg. § 1.411(b)-2(a).

      Accordingly, we believe that section 411(b)(1)(H) is a prohibition of disparate treatment, which requires a finding of intent to discriminate. As explained previously, there are numerous legitimate business reasons that are unrelated to age for which plan sponsors adopt cash balance plans. A finding that cash balance plans violate section 411(b)(1)(H) would nullify and disregard the business purposes offered by employers for their conduct.

      There is useful post-Hazen Paper authority in another pension design context, which suggests that, as in Hazen Paper, where there is a non-age related reason for applicable distinctions, an age discrimination claim should be rejected, whether under a disparate treatment or disparate impact theory. In Lyon v. Ohio Education Association, 53 F.3d 135 (6th Cir. 1995), the Sixth Circuit approved an early retirement incentive plan in a collective bargaining contract imputing additional service for employees retiring before normal retirement age, even though younger employees with the same length of service as older employees ended up receiving higher pensions. The court rejected the claim that the additional service rules penalized older workers because of age. It concluded, instead, that the disparity merely reflected the actuarial reality that employees who start work early in their career accumulate more years of service by the time they reach normal retirement age of 62. The court also observed that the difference in retirement benefits would be identical to the disparity that would exist if young and old employees worked until normal retirement age.

      The dispute centered on the "Option B" early retirement benefit, described as follows:

      Upon the earlier of the completion of twenty (20) years of service or the attainment of age sixty (60) after five (5) years of service, a participant may elect to retire. Early retirement under this Option B may be elected by the participant at any time after the participant meets the eligibility requirement. . . . early retirement benefits under this Option B shall be at least equal to the same percent of salary that the participant would have received if the participant had retired on the normal retirement date.

      The plan permitted normal retirement at the earlier of age 62 or 32 years of service, and calculated monthly benefit levels by multiplying years of service by two percent of average monthly compensation.

      The key point in Lyon that is applicable to the cash balance plan analysis is that the incentive program tied the benefit improvements to normal retirement age, just as future interest credits are projected to normal retirement age under a cash balance plan. Under the program in Lyon, Option B assumed that early retirees would have worked until age 62, requiring the imputation of the necessary years of service to each early retiree based on his present age. For example, if a 56 year old employee with 21 years of experience selected Option B, the plan treated him as if he had worked six additional years: the worker would receive [(21 years worked) + (62 - 56) years imputed] x 2 percent = 54 percent of average monthly compensation. A younger employee with the same experience would receive a larger benefit: a 52 year old who had worked 21 years would receive [(21 years worked) + (62 - 52) years imputed] x 2 percent = 62 percent of average monthly compensation.

      The net effect was to insure early retirees the same benefits under Option B that they would have received had they continued to work until their normal retirement dates. The Sixth Circuit found that the incentive program did not pay older employees lower benefits because of age. Instead, the court found that the disparity was a product of the employees’ length of service and their ages when they were originally hired. Because any disparity merely reflected the actuarial reality that employees who start at an early age accumulate more years of service in reaching the normal retirement age of 62, the plan did not violate the ADEA.
       

    3. Comparison with Traditional Pension Plans

      Benefits under final average pay plans may vary significantly because of age. In a final average pay plan, participants with the same service and compensation will accrue benefits at different rates, depending on their ages. Older workers will accrue benefits at greater rates than similarly situated younger workers, although the annuity benefit payable at normal retirement age for both workers is the same. This effect occurs between members of the age-protected class, in addition to occurring among other workers. Accordingly, a final average pay plan may be said to provide equivalent annuity benefits, but disparate values, related to age.

      In contrast, a typical cash balance plan provides an age neutral value (or greater value on account of increasing age), but an annuity benefit payable at normal retirement age that decreases on account of age. Accordingly, a cash balance plan may be said to provide equivalent values regardless of a participant’s age, but disparate annuity benefits related to age.

      Accordingly, one alternative that should be considered is the use of both types of tests for age discrimination, tailored to the design of the plan. A final average pay plan might be tested for age discrimination by looking at accruals of annuity benefits payable at normal retirement age, while a cash balance plan would be tested for age discrimination on the value of benefits accrued for each year of service.

      Another way to analyze a cash balance plan is to consider it as an indexed traditional career average plan. A cash balance plan operates identically to a traditional career average plan that indexes benefits from the date of accrual to the date of distribution. The "indexing rate" for this traditional career average plan is the cash balance plan’s interest crediting rate. For example, a cash balance plan providing 10 percent compensation credits and using a fixed lump sum factor of 10 is simply another way of describing a 1 percent career average plan indexing benefits at the plan’s interest crediting rate. While not common (though more common in certain foreign countries), traditional plans providing indexed benefits have existed for decades without anyone claiming that their benefit structure was discriminatory on account of age.
       

  3. Recommendation

    Service and Treasury should be able to conclude that the basic operation of the interest credit in cash balance plans does not violate section 411(b)(1)(H) of the Code for several reasons. Guidance should take into account the fact that younger workers tend to participate in cash balance plans for longer periods of time than older workers and have longer periods to accrue interest credits. Guidance should also account for the need for a defined benefit plan to have an assumed payment date (i.e. a normal retirement age), which is a construct of law and actuarial science and is not related to age. Guidance should also clarify the meaning of the critical phrase "rate of an employee’s benefit accrual." Under Hazen Paper, the Supreme Court requires a finding of no age discrimination even in disparate treatment cases where the employer’s action (here, the actuarial effect of projecting the account to age 65) is motivated by factors other than age, and guidance should allow for nondiscriminatory employer purposes in administering cash balance plans.

Back to top | I | II | IV | V | VI | VII