Page 551 TITLE 29—LABOR § 1391

1391 of this title by not more than the greater

of—

(1) the amount determined under subsection

(a) of this section, or

(2) the lesser of—

(A) the amount determined under subsection (a)(1) of this section, or

(B) $100,000,

reduced by the amount, if any, by which the

amount determined under section 1391 of this

title for the employer, determined without regard to this subsection, exceeds $150,000.

(c) Nonapplicability

This section does not apply—

(1) to an employer who withdraws in a plan

year in which substantially all employers

withdraw from the plan, or

(2) in any case in which substantially all employers withdraw from the plan during a period of one or more plan years pursuant to an

agreement or arrangement to withdraw, to an

employer who withdraws pursuant to such

agreement or arrangement.

(d) Presumption of employer withdrawal from

plan pursuant to agreement or arrangement

applicable in action or proceeding to determine or collect withdrawal liability

In any action or proceeding to determine or

collect withdrawal liability, if substantially all

employers have withdrawn from a plan within a

period of 3 plan years, an employer who has

withdrawn from such plan during such period

shall be presumed to have withdrawn from the

plan pursuant to an agreement or arrangement,

unless the employer proves otherwise by a preponderance of the evidence.

(Pub. L. 93–406, title IV, §4209, as added Pub. L.

96–364, title I, §104(2), Sept. 26, 1980, 94 Stat.

1225.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1381, 1386, 1391,

1394, 1399, 1401, 1403 of this title.

§ 1390. Nonapplicability of withdrawal liability

for certain temporary contribution obligation periods; exception

(a) An employer who withdraws from a plan in

complete or partial withdrawal is not liable to

the plan if the employer—

(1) first had an obligation to contribute to

the plan after September 26, 1980,

(2) had an obligation to contribute to the

plan for no more than the lesser of—

(A) 6 consecutive plan years preceding the

date on which the employer withdraws, or

(B) the number of years required for vesting under the plan,

(3) was required to make contributions to

the plan for each such plan year in an amount

equal to less than 2 percent of the sum of all

employer contributions made to the plan for

each such year, and

(4) has never avoided withdrawal liability

because of the application of this section with

respect to the plan.

(b) Subsection (a) of this section shall apply to

an employer with respect to a plan only if—

(1) the plan is not a plan which primarily

covers employees in the building and construction industry;

(2) the plan is amended to provide that subsection (a) of this section applies;

(3) the plan provides, or is amended to provide, that the reduction under section

411(a)(3)(E) of title 26 applies with respect to

the employees of the employer; and

(4) the ratio of the assets of the plan for the

plan year preceding the first plan year for

which the employer was required to contribute

to the plan to the benefit payments made during that plan year was at least 8 to 1.

(Pub. L. 93–406, title IV, §4210, as added Pub. L.

96–364, title I, §104(2), Sept. 26, 1980, 94 Stat. 1226;

amended Pub. L. 101–239, title VII, §7891(a)(1),

Dec. 19, 1989, 103 Stat. 2445.)

AMENDMENTS

1989—Subsec. (b)(3). Pub. L. 101–239 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue

Code of 1954’’, which for purposes of codification was

translated as ‘‘title 26’’ thus requiring no change in

text.

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by Pub. L. 101–239 effective, except as

otherwise provided, as if included in the provision of

the Tax Reform Act of 1986, Pub. L. 99–514, to which

such amendment relates, see section 7891(f) of Pub. L.

101–239, set out as a note under section 1002 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1401 of this title.

§ 1391. Methods for computing withdrawal liability

(a) Determination of amount of unfunded vested

benefits allocable to employer withdrawn

from plan

The amount of the unfunded vested benefits

allocable to an employer that withdraws from a

plan shall be determined in accordance with subsection (b), (c), or (d) of this section.

(b) Factors determining computation of amount

of unfunded vested benefits allocable to employer withdrawn from plan

(1) Except as provided in subsections (c) and

(d) of this section, the amount of unfunded vested benefits allocable to an employer that withdraws is the sum of—

(A) the employer’s proportional share of the

unamortized amount of the change in the

plan’s unfunded vested benefits for plan years

ending after September 25, 1980, as determined

under paragraph (2),

(B) the employer’s proportional share, if

any, of the unamortized amount of the plan’s

unfunded vested benefits at the end of the plan

year ending before September 26, 1980, as determined under paragraph (3); and

(C) the employer’s proportional share of the

unamortized amounts of the reallocated unfunded vested benefits (if any) as determined

under paragraph (4).

If the sum of the amounts determined with respect to an employer under paragraphs (2), (3),

and (4) is negative, the unfunded vested benefits

allocable to the employer shall be zero.