TO 

FROM 

SUBJECT 

UNITED STATES GOVERNMENT 

MEMORANDUM 

Steven J. Anthony 

FORM G-115f(1-92) 

RAILROAD RETIREMENT BOARD 

July 6, 2016 

L-2016-26 

Management Member ~ 

Karl T. Blank J ~ 2-

General Couns 

Impact of Bipartisan Budget Act of 2015 on Delayed 

Retirement Credits and Receipt of Annuities 

This memorandum is in response to the request by Joseph Waechter of your staff 

for my opinion regarding the impact of amendments to the Social Security Act in 

the Bipartisan Budget Act of 2015 on the availability of delayed retirement credits 

and. payment of auxiliary railroad retirement benefits. It is my opinion that the 

amendments to the Social Security Act do not affect the Railroad Retirement 

Board's obligations to pay auxiliary annuities when an employee waives part or all 

of an annuity, and that an employee may continue to earn delayed retirement 

credits when receiving the Tier II component of an employee annuity, even if a 

spouse annuity is also being paid on the employee's earnings record. 

Section 831 of the Bipartisan Budget Act of 2015 (Public Law 114-74, Nov. 2, 

2015) amended the Social Security Act to prohibit individuals who voluntarily 

suspend their Social Security benefit from receiving Social Security benefits based 

on any other individual's earnings record, or any benefit being paid to another 

individual on the basis of the suspending individual's earnings record. Prior to the 

amendment, a Social Security claimant could file for an annuity, immediately 

suspend payment of that annuity, and permit his or her spouse to file for a spouse 

annuity based on the claimant's earnings record. (In order for spouse and child 

insurance benefits to be payable under Section 202 of the Social Security Act, the 

wage earner must be "entitled to old-age or disability insurance benefits", 

including filing an application for such benefits.) Because the claimant had 

suspended his or her annuity, the claimant could accumulate delayed retirement 

credits and continue to increase the amount of monthly benefit he or she would be 

entitled to, while his or her spouse was collecting a spouse insurance benefit on the 

same earnings record. After the effective date of the amendments in the Bipartisan 

Budget Act of 2015, Section 2O2(z) of the Social Security Act will prohibit 
2 

payment of benefits based on the earnings record of an individual who has 

voluntarily suspended his or her Social Security benefit. 

In Legal Opinion 2000-16, this office found that a railroad annuitant may accrue 

delayed retirement credits after application for an annuity if he or she waives 

payment of the entire Tier I component of his or her annuity. That opinion also 

noted that railroad annuitants have always had the ability to waive all or part of 

their annuity under Section 11 of the Railroad Retirement Act ( 45 U.S.C. §231 G)). 

In contrast to Section 202(z) of the Social Security Act, Section 11 of the Railroad 

Retirement Act ( 45 U.S.C. §23 lj) provides that a written waiver of all or part of an 

annuity "will have no effect on entitlement to, or the amount of, any other annuity 

or benefit." This language was not amended by the Bipartisan Budget Act of 2015. 

Therefore, because a railroad annuitant waives part of his or her annuity under 

Section 11 of the RRA, not Section 202(z) of the Social Security Act, Section 

· 202(z) of the Social Security Act does not operate to prevent the payment of 

auxiliary benefits based on the waiving individual's earnings record. Likewise, a 

railroad annuitant who waives his or her Tier I component under Section 11 of the 

RRA would not be barred by Section 202(z) from collecting spousal insurance 

benefits based on the spouse's Social Security earnings record (unless the spouse 

had voluntarily suspended under Section 202(z) themselves.) 

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