Nos. 16-74, 16-86, and 16-258

In the Supreme Court of the United States

ADVOCATE HEALTH CARE NETWORK, ET AL., PETITIONERS

v.

MARIA STAPLETON, ET AL.

SAINT PETER’S HEALTHCARE SYSTEM, ET AL.,

PETITIONERS

v.

LAURENCE KAPLAN

DIGNITY HEALTH, ET AL., PETITIONERS

v.

STARLA ROLLINS

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE THIRD, SEVENTH, AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES 

AS AMICUS CURIAE SUPPORTING PETITIONERS

EDWIN S. KNEEDLER

Deputy Solicitor General

Counsel of Record

JOYCE R. BRANDA

Acting Assistant Attorney 

General

BRIAN H. FLETCHER

Assistant to the Solicitor 

General

MARK B. STERN

ALISA B. KLEIN 

NICOLAS Y. RILEY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

Additional Counsel Listed on Inside Cover
ROBERT J. NEIS

Benefits Tax Counsel

Department of the Treasury

Washington, D.C. 20220

DEBRA K. MOE

Deputy Chief Counsel

(Operations)

Internal Revenue Service

Washington, D.C. 20224

KATHERINE E. BISSELL

Deputy Solicitor for 

Regional Enforcement

Department of Labor

Washington, D.C. 20210

JUDITH R. STARR

General Counsel

Pension Benefit Guaranty 

Corporation

Washington, D.C. 20005
(I) 

QUESTION PRESENTED

Whether an employee benefit plan must be initially

established by a church in order to qualify for the

“church plan” exemption to the Employee Retirement 

Income Security Act of 1974, 29 U.S.C. 1002(33). 
(III)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statutory provisions involved...................................................... 2

Statement ...................................................................................... 2

A. ERISA’s original church-plan exemption....................... 2

B. The MPPAA’s expansion of the church-plan 

exemption........................................................................... 4

C. The present controversy................................................... 8

Summary of argument ............................................................... 10

Argument:

The IRS, DOL, and PBGC have correctly concluded 

that a plan need not be established by a church to 

qualify as a church plan..................................................... 13

A. The agencies’ longstanding interpretation reflects 

the natural reading of the statutory text...................... 14

B. The agencies’ longstanding interpretation is 

supported by the context, history, and purpose 

of the MPPAA amendments .......................................... 18

C. The agencies’ longstanding interpretation 

warrants deference under Skidmore ............................ 24

D. There is no sound reason to reject the agencies’ 

longstanding interpretation and impose a churchestablishment requirement............................................ 30

Conclusion ................................................................................... 34

Appendix — Statutory and regulatory provisions ................ 1a

TABLE OF AUTHORITIES

Cases:

Abramski v. United States, 134 S. Ct. 2259 (2014) ............ 18

Alaska Dep’t of Envtl. Conservation v. EPA, 

540 U.S. 461 (2004)........................................................ 26, 27

Almendarez-Torres v. United States, 523 U.S. 224 

(1998).................................................................................... 16
IV

Cases—Continued: Page

Barnhart v. Walton, 535 U.S. 212 (2002)............................ 26

Beck v. Pace Int’l Union, 551 U.S. 96 (2007)...................... 27

CFTC v. Schor, 478 U.S. 833 (1986)..................................... 29

Corporation of the Presiding Bishop of the Church of 

Jesus Christ of Latter-Day Saints v. Amos, 483 

U.S. 327 (1987) .................................................................... 33

Donovan v. Dillingham, 688 F.2d 1367 (11th Cir. 

1982)..................................................................................... 30

Federal Express Corp. v. Holowecki, 552 U.S. 389 

(2008).................................................................................... 26

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 

(1979).................................................................................... 33

Mead Corp. v. Tilley, 490 U.S. 714 (1989)..................... 26, 27

Medina v. Catholic Health Initiatives, No. 13-cv1249, 2014 WL 4244012 (D. Colo. Aug. 26, 2014)............... 9

Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) ............. 2, 26

Overall v. Ascension, 23 F. Supp. 3d 816 (E.D. Mich. 

2014)................................................................................. 9, 15

Power Reactor Dev. Co. v. International Union of 

Elec., 367 U.S. 396 (1961)................................................... 26

Raymond B. Yates, M.D., P.C. Profit Sharing Plan 

v. Hendon, 541 U.S. 1 (2004) ............................................. 27

Rose v. Long Island R.R. Pension Plan, 828 F.2d 

910 (2d Cir. 1987), cert. denied, 485 U.S. 936 (1988)....... 32

Ross v. Blake, 136 S. Ct. 1850 (2016)................................... 14

Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817 

(2013).................................................................................... 29

Skidmore v. Swift & Co., 323 U.S. 134 (1944)......... 12, 25, 26

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983)................ 2

TRW Inc. v. Andrews, 534 U.S. 19 (2001)........................... 17

Udall v. Tallman, 380 U.S. 1 (1965) .................................... 26

United States v. Mead Corp., 533 U.S. 218 (2001) ............. 26
V 

Cases—Continued: Page

United States v. Menasche, 348 U.S. 528 (1955)................ 17

Williams v. Taylor, 529 U.S. 362 (2000) ....................... 11, 17

Williams v. WCI Steel Co., 170 F.3d 598 (6th Cir. 

1999)..................................................................................... 31

Yates v. Hendon, 541 U.S. 1 (2004)........................................ 3

Zenith Radio Corp. v. United States, 437 U.S. 443 

(1978).................................................................................... 26

Constitution, statutes and regulations:

U.S. Const. Amend. I (Establishment Clause)................... 33

Act of July 10, 2000, Pub. L. No. 106-244, 114 Stat. 

499 ........................................................................................ 27

Act of Dec. 21, 2004, Pub. L. No. 108-476, § 1(a), 

118 Stat. 3901 ...................................................................... 29

Consolidated Appropriations Act, 2016, Pub. L. No. 

114-113, § 336, 129 Stat. 3109-3113 ................................... 27

§ 336(c), 129 Stat. 3111.................................................... 27

Consolidated Omnibus Budget Reconciliation Act of 

1985, Pub. L. No. 99-272, § 10001, 100 Stat. 223.............. 28

Economic Growth and Tax Relief Reconciliation Act 

of 2001, Pub. L. No. 107-16, § 659, 115 Stat. 139 ............. 28

Employee Retirement Income Security Act of 1974, 

29 U.S.C. 1001 et seq......................................................... 1, 3

29 U.S.C. 1002(1)-(3) ......................................................... 2

29 U.S.C. 1002(16)(B)...................................................... 31

29 U.S.C. 1002(33) ............................................................. 3

29 U.S.C. 1002(33)(A) (1976) ...................................... 3, 14

29 U.S.C. 1002(33)(A)............................................. passim

29 U.S.C. 1002(33)(C) (1976) ...................................... 4, 18

29 U.S.C. 1002(33)(C)(i)......................................... passim

29 U.S.C. 1002(33)(C)(ii)(II)............................. 6, 7, 14, 32
VI

Statutes and regulations—Continued: Page

29 U.S.C. 1002(33)(C)(iii)........................................ 6, 7, 15

29 U.S.C. 1003(a) ............................................................... 3

29 U.S.C. 1003(b)(2) .......................................................... 3

29 U.S.C. 1058.................................................................. 31

29 U.S.C. 1132-1135..................................................... 2, 25

29 U.S.C. 1144a................................................................ 28

29 U.S.C. 1201 et seq. ........................................................ 3

29 U.S.C. 1301 et seq. ........................................................ 3

29 U.S.C. 1302(b)(3) .................................................... 2, 25

29 U.S.C. 1321(b)(3) ...................................................... 3, 8

Health Insurance Portability and Accountability Act 

of 1996, Pub. L. No. 104-191, § 402, 110 Stat. 2084-

2085 ...................................................................................... 28

Internal Revenue Code:

26 U.S.C. 410(c)(1)(B) ....................................................... 3

26 U.S.C. 410(d)................................................................. 3

26 U.S.C. 411(e)(1)(B)....................................................... 3

26 U.S.C. 412(e)(2)(D)....................................................... 3

26 U.S.C. 414(e)............................................................. 3, 8

26 U.S.C. 414(e)(1)............................................................. 7

26 U.S.C. 414(e)(3)(A) (1976)............................................ 4

26 U.S.C. 414(e)(3)(A)....................................... 4, 7, 16, 29

26 U.S.C. 414(e)(3)(B)(ii) .................................................. 7

26 U.S.C. 414(e)(3)(C)....................................................... 7

26 U.S.C. 414(l)................................................................ 31

26 U.S.C. 501................................................................ 6, 14

26 U.S.C. 4980D(b)(3)(C)................................................ 28

26 U.S.C. 4980F(f)(2)...................................................... 28

26 U.S.C. 7801(a) ......................................................... 2, 25

26 U.S.C. 9802(c) ............................................................. 28

26 U.S.C. 9802(f).............................................................. 28
VII

Statutes and regulations—Continued: Page

Multiemployer Pension Plan Amendments Act of 

1980, Pub. L. No. 96-364, § 407, 94 Stat. 1303.................... 5

§ 407(c), 94 Stat. 1307........................................................ 6

National Securities Markets Improvement Act of 

1996, Pub. L. No. 104-290, § 508, 110 Stat. 3447.............. 28

Social Security Protection Act of 2004, Pub. L. No. 

108-203, § 422, 118 Stat. 536 .............................................. 28

Taxpayer Relief Act of 1997, Pub. L. No. 105-34, 

§ 1532, 111 Stat. 1085.......................................................... 28

42 U.S.C. 411(a)(7)................................................................. 28

26 C.F.R. 1.414(e)-1................................................................. 8

Miscellaneous:

124 Cong. Rec. (May 2, 1978):

p. 12,107................................................................ 19, 21, 22

p. 12,108............................................................................ 23

125 Cong. Rec. (May 7, 1979):

p. 10,052.....................................................11, 81, 20, 22, 32

p. 10,053............................................................................ 21

126 Cong. Rec. (July 29, 1980):

p. 20,208.................................................................. 6, 18, 32

p. 20,180............................................................................ 18

149 Cong. Rec. 7380 (Mar. 25, 2003).................................... 29

150 Cong. Rec. 24,328-24,331 (Nov. 19, 2004)..................... 29

DOL Advisory Op. No. 2000-05A, 2000 WL 744359 

(May 17, 2000) ................................................................. 8, 25

Exec. Sess. of the Senate Comm. on Finance, 

96th Cong., 2d Sess. (June 12, 1980)........................... 18, 32

45 Fed. Reg. 20,796 (Mar. 31, 1980)....................................... 8

H.R. 12,172, 95th Cong., 2d Sess. (1978)............................. 23

IRS GCM 37,266, 1977 WL 46200 (Sept. 22, 

1977)......................................................................... 4, 6, 7, 23
VIII

Miscellaneous—Continued: Page

IRS GCM 39,007, 1983 WL 197946 (Nov. 2, 

1982) ....................................................................... 6, 7, 25, 26

IRS GCM 39,793, 1989 WL 592761 (July 6, 1989).......... 8, 25

Miscellaneous Pension Bills: Hearings Before 

the Subcomm. on Private Pension Plans and 

Employee Fringe Benefits of the Senate Comm. 

on Finance, 96th Cong., 1st Sess. (1979) ................ passim

PBGC, 2011 Enrolled Actuaries Meeting, Questions 

to the PBGC and Summary of Their Responses 

(Mar. 2011), http://www.pbgc.gov/documents/2011

bluebook.pdf.......................................................................... 8

S. 1076, 96th Cong., 1st Sess. (1979).......................... 6, 18, 32

S. 1090, 96th Cong., 1st Sess. (1979).................................... 23

S. Rep. No. 383, 93d Cong., 1st Sess. (1973)......................... 3
(1) 

In the Supreme Court of the United States

No. 16-74 

ADVOCATE HEALTH CARE NETWORK, ET AL., PETITIONERS

v.

MARIA STAPLETON, ET AL.

No. 16-86

SAINT PETER’S HEALTHCARE SYSTEM, ET AL., PETITIONERS

v.

LAURENCE KAPLAN

No. 16-258

DIGNITY HEALTH, ET AL., PETITIONERS

v.

STARLA ROLLINS

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE THIRD, SEVENTH, AND NINTH CIRCUITS 

BRIEF FOR THE UNITED STATES 

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

These cases concern the “church plan” exemption 

to the Employee Retirement Income Security Act of 
2 

1974 (ERISA), 29 U.S.C. 1001 et seq. The Internal 

Revenue Service (IRS), the Department of Labor

(DOL), and the Pension Benefit Guaranty Corporation 

(PBGC) administer the relevant provisions of ERISA. 

26 U.S.C. 7801(a); 29 U.S.C. 1132-1135, 1302(b)(3). The 

decisions below rejected an interpretation those agencies have applied for more than three decades. The 

United States therefore has a substantial interest in 

this Court’s resolution of the question presented.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are 

reproduced in the appendix to this brief. App., infra, 

1a-24a. 

STATEMENT

ERISA generally exempts “church plans,” a term 

defined broadly to encompass a plan covering the 

employees of a religious hospital or other tax-exempt

organization associated with a church. The question 

presented is whether such a plan must be initially 

“established” by the church itself (as the decisions

below held) or whether it is sufficient if the plan is 

“maintained” by a church-affiliated organization described in the statute (as the IRS, DOL, and PBGC 

have long concluded). 

A. ERISA’s Original Church-Plan Exemption

1. Enacted in 1974, ERISA is a “comprehensive 

and reticulated statute” regulating employee benefit 

plans. Mertens v. Hewitt Assocs., 508 U.S. 248, 251 

(1993) (citation omitted). ERISA governs both pension plans and welfare plans providing health, disability, and other benefits. Shaw v. Delta Air Lines, Inc., 

463 U.S. 85, 91-92 (1983); see 29 U.S.C. 1002(1)-(3).
3 

ERISA has four titles. Title I imposes reporting 

and disclosure requirements, standards of fiduciary 

conduct, vesting and funding schedules, and other 

substantive rules for pension and welfare plans. 29 

U.S.C. 1001 et seq. Title II, which is codified in the 

Internal Revenue Code, conditions preferential tax 

treatment for pension plans on compliance with certain Title I requirements. Title III governs administration and enforcement. 29 U.S.C. 1201 et seq. And 

Title IV establishes the PBGC, which administers an 

insurance program that protects employees against 

the loss of benefits if an employer’s pension plan terminates with insufficient funds. 29 U.S.C. 1301 et seq.; 

see Yates v. Hendon, 541 U.S. 1, 6 (2004). 

2. ERISA generally applies to any benefit plan 

“established or maintained” by a private employer. 29 

U.S.C. 1003(a). But Congress exempted “church plans,” 

in part because “the examinations of books and records” required under ERISA “might be regarded as 

an unjustified invasion of the confidential relationship 

that is believed to be appropriate with regard to churches and their religious activities.” S. Rep. No. 383, 93d 

Cong., 1st Sess. 81 (1973). Unless a church plan elects to 

be covered under 26 U.S.C. 410(d), it is exempt from 

Title I of ERISA, from certain related tax provisions, 

and from the PBGC’s insurance program. 29 U.S.C. 

1003(b)(2), 1321(b)(3); see, e.g., 26 U.S.C. 410(c)(1)(B), 

411(e)(1)(B), 412(e)(2)(D). 

The term “church plan” is defined in 29 U.S.C. 

1002(33) and a materially identical provision of the

Internal Revenue Code, 26 U.S.C. 414(e). As originally enacted in 1974, that definition was narrow, 

including only a plan “established and maintained for 

its employees by a church.” 29 U.S.C. 1002(33)(A)
4 

(1976).1 Congress also adopted a temporary rule specifying that an existing plan covering church employees

could be “treated as a church plan” even if it also 

covered the employees of “one or more agencies” of 

the church. 29 U.S.C. 1002(33)(C) (1976); see 26 

U.S.C. 414(e)(3)(A) (1976). That rule allowing the 

employees of church agencies to be included in exempt 

plans was set to expire in 1982. Ibid.

3. In 1977, the IRS issued a General Counsel 

Memorandum (GCM) applying the church-plan definition to pension plans established by two orders of 

Catholic sisters for the employees of their hospitals. 

IRS GCM 37,266, 1977 WL 46200, at *1-*2 (Sept. 22, 

1977) (1977 GCM). The IRS concluded that the plans 

were not church plans because the orders were not

themselves “churches.” Id. at *6. The IRS reasoned 

that a religious order qualifies as a “church” only if it 

is “principally engaged in religious activities.” Id. at 

*3, *6. And the IRS determined that the Catholic

orders at issue were not churches because “operating 

hospitals * * * is not a religious function.” Id. at *5. 

B. The MPPAA’s Expansion Of The Church-Plan Exemption 

1. A broad coalition of religious organizations

formed the Church Alliance for the Clarification of 

ERISA (Church Alliance) to seek changes to the original church-plan exemption. Miscellaneous Pension 

Bills: Hearings Before the Subcomm. on Private 

Pension Plans and Employee Fringe Benefits of the 

 

1

 Like the courts below and the parties, we generally cite the 

church-plan definition in ERISA rather than the materially identical definition in the Internal Revenue Code. For brevity, we 

generally use the term “church” as a shorthand for the statutory 

phrase “church or convention or association of churches.”
5 

Senate Comm. on Finance, 96th Cong., 1st Sess. 363-

364, 366 (1979) (Senate Hearing) (Sen. Talmadge). 

Among other things, the Church Alliance opposed the 

sunset of the temporary rule allowing church plans to 

cover the employees of church agencies. Id. at 384, 

387-388 (Church Alliance). It also argued that the 

original definition’s focus on plans established and 

maintained by “churches” favored hierarchical denominations over congregational denominations, which 

typically relied on separate pension boards to administer the plans covering the employees of local churches and church agencies. Id. at 383, 388. And the 

Church Alliance opposed government inquiries aimed 

at determining whether particular entities were sufficiently religious to qualify as “churches” entitled to 

establish and maintain exempt plans. Id. at 384. 

Congress responded to those concerns by substantially expanding ERISA’s church-plan exemption in 

the Multiemployer Pension Plan Amendments Act of 

1980 (MPPAA), Pub. L. No. 96-364, § 407, 94 Stat. 

1303. The MPPAA amendments preserved the core of 

the original definition, continuing to provide that 

“[t]he term ‘church plan’ means a plan established and 

maintained * * * for its employees (or their beneficiaries) by a church.” 29 U.S.C. 1002(33)(A). That 

approach made clear that any plan that met the original definition remained exempt. But Congress broadened the exemption by adopting provisions deeming

additional plans to satisfy that definition even though 

they did not fall within its literal terms. Two of those 

provisions are relevant here.

First, Congress specified that, for purposes of the 

church-plan definition, “[t]he term employee of a 

church * * * includes * * * an employee of an 
6 

organization, whether a civil law corporation or otherwise, which is exempt from tax under [26 U.S.C. 501] 

and which is controlled by or associated with a 

church.” 29 U.S.C. 1002(33)(C)(ii)(II). A separate

provision provides that “[a] church * * * shall be 

deemed the employer of any individual included as an 

employee” under that rule. 29 U.S.C. 1002(33)(C)(iii). 

Those provisions allow “a church plan to cover employees of a tax-exempt agency controlled by or affiliated with a church,” such as a religious hospital. 126 

Cong. Rec. 20,208 (July 29, 1980) (Joint Explanation of 

S. 1076, 96th Cong., 1st Sess. (1979)).

Second, Congress addressed the concerns of congregational denominations by specifying that “[a] plan 

established and maintained for its employees (or their 

beneficiaries) by a church”—that is, a church plan—

“includes a plan maintained by an organization, 

whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan * * * for the employees of a 

church * * * if such organization is controlled by or 

associated with a church.” 29 U.S.C. 1002(33)(C)(i). 

Under that provision, a plan maintained by a churchaffiliated pension board or other “principal-purpose”

organization is deemed to be a church plan. 

Congress made the MPPAA amendments retroactive to January 1, 1974, ensuring that plans previously 

excluded from the church-plan exemption would not 

be liable for any failure to comply with ERISA. 

MPPAA § 407(c), 94 Stat. 1307. 

2. The IRS first addressed the amended churchplan definition in a GCM prepared in 1982 and released to the public in 1983. IRS GCM 39,007, 1983 

WL 197946 (Nov. 2, 1982) (1982 GCM). Like the 1977 
7 

GCM, the 1982 GCM addressed pension plans established by Catholic religious orders for the employees 

of their hospitals. Id. at *1-*2. The IRS explained 

that, under the approach adopted in the 1977 GCM, 

the orders were not themselves “churches.” Id. at *4. 

But the IRS concluded that the MPPAA amendments

meant that “nonchurch status is not fatal.” Ibid. 

After parsing the amended definition, the IRS explained that the orders’ plans would qualify as church 

plans so long as (a) “their employees are deemed employees of the Catholic Church,” and (b) their plans 

are “administered by one of the organizations described in the statute.” Ibid. 

The IRS found both requirements satisfied. It explained that the religious orders’ employees were 

deemed to be employees of the Catholic Church because the orders were associated with the Church. 

1982 GCM at *5; see 26 U.S.C. 414(e)(3)(B)(ii) and (C); 

29 U.S.C. 1002(33)(C)(ii)(II) and (iii). And it concluded that a plan may qualify as a church plan under the 

MPPAA amendments if it is either “established and 

maintained * * * by a church,” 26 U.S.C. 414(e)(1); 

see 29 U.S.C. 1002(33)(A), or “maintained” by a principal-purpose organization, 26 U.S.C. 414(e)(3)(A); see 

29 U.S.C. 1002(33)(C)(i). 1982 GCM at *5. The IRS 

therefore determined that, although the orders’ plans 

had not been established by a church, they would 

qualify as church plans so long as they were maintained 

by principal-purpose organizations. Id. at *5-*6.

3. In the decades since the 1982 GCM, the IRS has 

issued hundreds of private letter rulings confirming 

the exempt status of particular plans based on its 

conclusion that a plan maintained by a principalpurpose organization need not be “established” by a 
8 

church to qualify as a church plan. See No. 16-74 

(Advocate) Pet. App. 70a-111a (collecting citations); 

see also IRS GCM 39,793, 1989 WL 592761, at *5-*7

(July 6, 1989) (reaffirming this interpretation).2

DOL has likewise concluded that the identical definition in Title I of ERISA does not require a church to 

establish a church plan in the first instance. That 

interpretation is reflected in dozens of DOL opinion 

letters finding particular plans exempt. See, e.g., 

DOL Advisory Op. No. 2000-05A, 2000 WL 744359, at 

*1 (May 17, 2000); see also Advocate Pet. App. 64a-69a 

(collecting citations). The PBGC has similarly adopted the IRS’s interpretation, relying on the IRS to 

determine whether particular plans qualify as church 

plans. PBGC, 2011 Enrolled Actuaries Meeting, Questions to the PBGC and Summary of Their Responses

25 (Mar. 2011), http://www.pbgc.gov/documents/2011

bluebook.pdf; see 29 U.S.C. 1321(b)(3) (incorporating 

26 U.S.C. 414(e)). 

C. The Present Controversy

1. Until recently, no court had questioned the 

agencies’ longstanding interpretation of the churchplan exemption. Since 2013, however, that interpretation has been challenged in dozens of class-action suits

filed by employees of religious hospitals and 

healthcare providers. Petitioners are the defendants 

in three of those suits. Respondents are current and 

former employees at petitioners’ healthcare facilities

who allege that petitioners’ pension plans are subject 

 

2

 The IRS and the Department of the Treasury issued a regulation interpreting the original church-plan definition, but that regulation has not been updated to address the MPPAA amendments. 

26 C.F.R. 1.414(e)-1; see 45 Fed. Reg. 20,796 (Mar. 31, 1980).
9 

to ERISA and that those plans do not satisfy ERISA’s 

funding, vesting, disclosure, and other requirements. 

As relevant here, respondents contend that petitioners’ plans do not qualify as church plans because the 

plans were not established by a church. Advocate Pet. 

App. 4a-5a; No. 16-86 (St. Peter’s) Pet. App. 6a-7a; No. 

16-258 (Dignity) Pet. App. 4a-6a.

The district courts denied petitioners’ motions to 

dismiss, agreeing with respondents that a plan must be 

established by a church to be a church plan. Advocate 

Pet. App. 30a-50a; St. Peter’s Pet. App. 29a-51a; Dignity Pet. App. 26a-42a. All three courts then certified the 

issue for interlocutory appeal, recognizing that other

district courts had reached the opposite conclusion. 

Advocate Pet. App. 51a-53a; St. Peter’s Pet. App. 54a63a; Dignity Pet. App. 61a-72a; see Overall v. Ascension, 23 F. Supp. 3d 816, 826-829 (E.D. Mich. 2014); 

Medina v. Catholic Health Initiatives, No. 13-cv-1249, 

2014 WL 4244012, at *2-*3 (D. Colo. Aug. 26, 2014).

2. The courts of appeals affirmed. Advocate Pet. 

App. 1a-29a; St. Peter’s Pet. App. 1a-26a; Dignity Pet. 

App. 1a-25a. 

The first appellate decision was issued by the Third 

Circuit, which concluded that, under the “plain text” 

of the church-plan definition, “only a church can establish a plan that qualifies for an exemption.” St. 

Peter’s Pet. App. 6a. The court emphasized that the 

statute defines a “church plan” as “a plan established 

and maintained * * * by a church.” Id. at 9a-10a 

(quoting 29 U.S.C. 1002(33)(A)). The court recognized 

that the MPPAA expanded that definition by specifying that a plan “established and maintained * * * by 

a church * * * includes a plan maintained by” a 

principal-purpose organization. Id. at 11a (quoting 29 
10

U.S.C. 1002(33)(C)(i)). The court concluded that this 

amendment “provided an alternate way of meeting the 

maintenance requirement,” allowing a principalpurpose organization, rather than a church, to maintain an exempt church plan. Id. at 13a. But the court 

held that the MPPAA “did not do away with the requirement that a church establish a plan in the first 

instance.” Ibid. (emphasis added). The court stated 

that it found support for that reading in several canons of construction, id. at 14a-18a, and in the 

MPPAA’s legislative history, id. at 18a-22a. And 

because the court believed that the agencies’ interpretation “is at odds with the statutory text,” it gave “no 

deference” to their longstanding view. Id. at 23a.

The subsequent decisions by the Seventh and 

Ninth Circuits relied on similar reasoning, likewise 

concluding that the statutory text and legislative history demonstrate that a church plan must be “established” by a church, and likewise declining to defer to 

the agencies’ contrary view. Advocate Pet. App. 6a29a; Dignity Pet. App. 7a-24a.

SUMMARY OF ARGUMENT

In 1980, Congress amended ERISA to allow the 

employees of a religious hospital or other churchaffiliated nonprofit organization to be covered by an 

exempt church plan. Ever since, the agencies responsible for administering ERISA’s complex regulatory 

scheme have consistently concluded that such a plan 

need not be initially established by a church to qualify 

as exempt. That longstanding interpretation is correct.

A. The agencies’ interpretation is the natural reading of the statutory text. In the MPPAA, Congress 

preserved ERISA’s basic definition of a church plan 

as a plan “established and maintained * * * by a 
11

church.” 29 U.S.C. 1002(33)(A). But Congress expanded that definition by specifying that “[a] plan 

established and maintained * * * by a church * * * 

includes a plan maintained by [a principal-purpose 

organization].” 29 U.S.C. 1002(33)(C)(i). Section 

1002(33)(C)(i) is most naturally read to provide that a 

plan “maintained” by a principal-purpose organization 

is deemed to be both “established” and “maintained” 

by a church. Any other reading would render the 

words “established and” superfluous, violating the

“cardinal principle of statutory construction” that 

requires courts to “‘give effect, if possible, to every 

clause and word of a statute.’” Williams v. Taylor, 

529 U.S. 362, 404 (2000) (citation omitted).

B. The context, history, and purpose of the MPPAA

amendments reinforce the natural reading of the text. 

One of Congress’s fundamental goals was to accommodate congregational denominations, which typically 

relied on pension boards to administer plans covering

the employees of local churches and church agencies. 

That goal could not have been achieved merely by

allowing pension boards to maintain plans established

by churches. Some pension boards for congregational 

denominations established their own plans, and in 

other cases it was unclear which entities had “established” plans that long pre-dated ERISA. 

The MPPAA amendments thus sought to eliminate 

any uncertainty stemming from questions about 

“whether [a] plan is established by a church * * * or 

by a pension board.” 125 Cong. Rec. 10,052 (May 7, 

1979) (Sen. Talmadge) (emphasis added). And the

drafting history confirms that Congress achieved that 

objective by deeming a plan maintained by a pension 

board or other principal-purpose organization to satis-
12

fy the requirement of church establishment, not merely the requirement of church maintenance.

C. If there were any doubt about the best interpretation of the church-plan definition, it would be resolved by the position adopted and consistently applied by the IRS, DOL, and PBGC. Those agencies 

have been charged by Congress with administering 

ERISA, and their implementation of the church-plan 

exemption “constitute[s] a body of experience and 

informed judgment” entitled to a measure of deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 

(1944). Such an administrative interpretation carries

special force where, as here, it reflects a contemporaneous and longstanding construction of a complex 

statutory scheme. And the agencies’ oft-applied interpretation of the church-plan definition is entitled to 

even greater weight because Congress has left it undisturbed even as it has repeatedly refined the treatment of church plans under ERISA, the Internal 

Revenue Code, and related laws. 

D. Neither respondents nor the courts of appeals 

identified any sound reason to upset decades of reliance interests by imposing a requirement that a 

church plan be initially “established” by a church. 

The courts appeared to assume that such a requirement would ensure that a church retained control of 

or responsibility for the plan, but that is mistaken. 

Those powers and responsibilities may fall on the 

entity that maintains a plan, not the entity that established it in the first instance.

Respondents have also suggested that Congress 

did not intend to exclude the employees of large 

healthcare providers like petitioners from ERISA’s 

protections. But the MPPAA amendments unambigu-
13

ously allow the employees of any tax-exempt organization controlled by or associated with a church to be 

covered under an exempt church plan—indeed, Congress expressly deemed such employees to be employees of a church. There is thus no dispute that the 

employees of a church-affiliated nonprofit organization can be covered under an exempt plan—the only 

question is the mechanism by which that result may

be achieved. As the administering agencies have long 

concluded, Congress did not require a church to establish such a plan in the first instance.

ARGUMENT

THE IRS, DOL, AND PBGC HAVE CORRECTLY CONCLUDED THAT A PLAN NEED NOT BE ESTABLISHED 

BY A CHURCH TO QUALIFY AS A CHURCH PLAN 

There is no dispute that the employees of a religious hospital or other nonprofit organization associated with a church may be covered under an ERISAexempt church plan. There is also no dispute that a 

church plan need not be “maintained” by a church, 

and may instead be maintained by an organization the 

principal purpose of which is the administration or 

funding of a church plan. The only question before 

the Court is whether an otherwise-qualifying plan

maintained by a principal-purpose organization must 

be “established” by a church in the first instance. As 

the agencies responsible for administering ERISA 

have concluded for more than three decades, the answer to that question is no.3

 

3

 The courts of appeals held that petitioners’ plans are not 

church plans because they were not “established” by a church. 

Respondents have separately argued that petitioners’ plans are 

not church plans because petitioners are not controlled by or 
14

A. The Agencies’ Longstanding Interpretation Reflects

The Natural Reading Of The Statutory Text

Like any inquiry into the meaning of a federal statute, the interpretation of ERISA’s church-plan exemption “begins with the text.” Ross v. Blake, 136 

S. Ct. 1850, 1856 (2016). That text is most naturally 

read to provide that a plan maintained by a principalpurpose organization described in Section 1002(33)(C)(i)

qualifies as a church plan whether or not it was initially established by a church.

1. Since its enactment in 1974, ERISA has defined 

a “church plan” as a plan “established and maintained 

* * * for its employees * * * by a church.” 29 

U.S.C. 1002(33)(A); see 29 U.S.C. 1002(33)(A) (1976). 

In the MPPAA, however, Congress enacted amendments that expanded the reach of that definition beyond its literal terms. Two of those amendments 

combine to allow a plan covering the employees of a

religious hospital or other church-affiliated organization to qualify as a church plan even if the plan was 

not established by a church.

First, Congress specified that “[t]he term employee of a church” includes “an employee of an organization * * * which is exempt from tax under [26 U.S.C. 

501] and which is controlled by or associated with a 

church.” 29 U.S.C. 1002(33)(C)(ii)(II). Congress 

further provided that, for purposes of the church-plan 

 

associated with a church and because the entities that maintain 

petitioners’ plans do not qualify as principal-purpose organizations 

under Section 1002(33)(C)(i). Advocate Br. in Opp. 36-37; St. 

Peter’s Br. in Opp. 28-30; Dignity Br. in Opp. 36-38. We do not 

address those separate issues because they were not passed upon 

by the courts of appeals and are not encompassed within the 

question presented. 
15

definition, “[a] church * * * shall be deemed the employer” of such employees. 29 U.S.C. 1002(33)(C)(iii). 

Thus, a plan providing benefits for the employees of a 

tax-exempt organization controlled by or associated 

with a church qualifies as a plan providing benefits for 

the employees of a “church.”

Second, Congress enacted Section 1002(33)(C)(i) to 

address plans maintained by pension boards or other 

principal-purpose organizations. That provision specifies that “[a] plan established and maintained for its 

employees * * * by a church * * * includes a plan 

maintained by [a principal-purpose organization].” 29 

U.S.C. 1002(33)(C)(i). That provision is naturally read 

to provide that a plan “maintained” for church employees by a principal-purpose organization is deemed 

to be a plan “established and maintained for its employees * * * by a church”—that is, a church plan. 

Ibid. As one court put the point, “if A is exempt and A 

includes C, then C is also exempt.” Overall v. Ascension, 23 F. Supp. 3d 816, 828 (E.D. Mich. 2014) (citation omitted). Applying that logic here: Because a plan 

“established and maintained for its employees * * * by 

a church” is exempt, 29 U.S.C. 1002(33)(A)—and because 

such a plan “includes a plan maintained by [a principalpurpose organization],” 29 U.S.C. 1002(33)(C)(i)—it 

follows that a plan maintained by a principal-purpose 

organization is also exempt.4

 

4

 The same point can be made in a slightly different way. Section 1002(33)(C)(i) states that a phrase in Section 1002(33)(A)’s 

definition of “church plan” “includes” additional plans described in 

Section 1002(33)(C)(i). The relevant phrase in Section 1002(33)(A) 

can therefore be replaced with the text from Section 1002(33)(C)(i), 

with this result: 
16

That natural reading of Section 1002(33)(C)(i)’s 

text is reinforced by the title of the materially identical provision of the Internal Revenue Code, 26 U.S.C. 

414(e)(3)(A). Cf. Almendarez-Torres v. United States, 

523 U.S. 224, 234 (1998) (observing that “the heading 

of a section” may resolve doubt over its meaning) 

(citation omitted). The Internal Revenue Code provision is entitled “[t]reatment as church plan,” 26 U.S.C. 

414(e)(3)(A), which confirms that the plans described 

in Section 1002(33)(C)(i) and its Internal Revenue 

Code counterpart are deemed to be church plans.

2. The courts of appeals adopted a different reading of Section 1002(33)(C)(i). In their view, that provision “provided an alternate way of meeting the 

maintenance requirement” in Section 1002(33)(A)’s

original church-plan definition, but “did not do away 

with the requirement that a church establish a plan in 

the first instance.” St. Peter’s Pet. App. 13a (emphasis added); see Advocate Pet. App. 11a-12a; Dignity

Pet. App. 10a-11a. That reading is unpersuasive.

If Congress had intended to eliminate the “maintenance” requirement alone, it would have provided that 

 

The term “church plan” means [a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or 

funding of a plan or program for the provision of retirement 

benefits or welfare benefits, or both, for the employees of a 

church or a convention or association of churches, if such organization is controlled by or associated with a church or a 

convention or association of churches] which is exempt from 

tax under section 501 of title 26.

29 U.S.C. 1002(33)(A) (text from Section 1002(33)(C)(i) bracketed). 

The two provisions thus combine to define a “church plan” to 

include a plan maintained by a principal-purpose organization, 

whether or not that plan was established by a church.
17

“a plan maintained by a church includes a plan maintained by a principal-purpose organization.” But Congress did not do that. Instead, it specified that “[a] 

plan established and maintained * * * by a church 

* * * includes a plan maintained by [a principalpurpose organization].” 29 U.S.C. 1002(33)(C)(i) (emphasis added). The natural implication is that a plan 

“maintained” by a principal-purpose organization is 

deemed to be both “established” and “maintained” by 

a church. In fact, any other reading would render the 

words “established and” superfluous, violating “the 

cardinal principle of statutory construction” that 

courts “must ‘give effect, if possible, to every clause 

and word of a statute.’” Williams v. Taylor, 529 U.S. 

362, 404 (2000) (quoting United States v. Menasche, 

348 U.S. 528, 538-539 (1955)). The courts of appeals 

failed even to acknowledge this superfluity, much less 

to identify any textual consideration sufficient to 

overcome this Court’s “reluctan[ce] to treat statutory 

terms as surplusage in any setting.” TRW Inc. v. 

Andrews, 534 U.S. 19, 31 (2001) (citation omitted).5

 

5

 The Third and Seventh Circuits erroneously assumed that their 

reading avoided a different surplusage problem. Those courts believed that, under the agencies’ interpretation, the “church establishment requirement” in Section 1002(33)(A) “would be superfluous” 

because even a plan that was not established by a church “would 

be eligible for an exemption as long as it is maintained by [a principal-purpose organization].” St. Peter’s Pet. App. 14a; see Advocate Pet. App. 11a-12a. But that consequence does not render Section 1002(33)(A) “superfluous.” Just as before the MPPAA, Section 1002(33)(A) exempts plans that are both established and maintained by a church. Section 1002(33)(C)(i), in contrast, exempts 

only plans maintained by principal-purpose organizations; it does 

not address plans maintained by churches. 
18

B. The Agencies’ Longstanding Interpretation Is Supported By The Context, History, And Purpose Of The 

MPPAA Amendments 

The natural reading of Section 1002(33)(C)(i)’s text

is reinforced by the “context,” “history,” and “purpose”

of the MPPAA amendments. Abramski v. United 

States, 134 S. Ct. 2259, 2267 (2014) (citation omitted). 

1. Under ERISA’s original definition of “church 

plan,” the employees of church agencies could be covered under an exempt plan only until 1982, and only if 

the plan also covered employees of the church. 29 

U.S.C. 1002(33)(C) (1976). One central purpose of the 

MPPAA’s church-plan amendments was to replace 

that temporary rule with a permanent provision allowing the employees of church agencies to be covered 

under exempt plans. See, e.g., 126 Cong. Rec. 20,208 

(July 29, 1980) (Joint Explanation of S. 1076, 96th

Cong., 1st Sess. (1979)). 

Both proponents and opponents of the MPPAA

amendments recognized that the amended definition

would exempt plans covering the employees of church 

agencies. Proponents advocated that result on the 

ground that “[c]hurch agencies are essential to the 

churches’ mission” and “are, in fact, part of the 

churches.” 125 Cong. Rec. 10,052 (May 7, 1979) (Sen. 

Talmadge). Opponents, including the Department of 

the Treasury, objected to the fact that the amendments would “exclude church agencies from the protection of ERISA.” Exec. Sess. of the Senate Comm. 

on Finance, 96th Cong., 2d Sess. 41 (June 12, 1980) 

(Executive Session) (Daniel Halperin, Deputy Assistant Secretary, Dep’t of Treasury); see 126 Cong. Rec. 

at 20,180 (Sen. Javits) (“As to the church pension 

plans, I might say that I am not too happy about [the 
19

amendment] as it exempts those who work for schools 

and similar institutions which are church-related.”).

2. The courts of appeals acknowledged that Congress sought to allow exempt church plans to cover 

the employees of church agencies, but concluded that 

Congress intended to exempt such plans only if they 

were initially established by a church. Advocate Pet. 

App. 18a-22a; St. Peter’s Pet. App. 18a-22a; Dignity 

Pet. App. 11a-15a. That conclusion rests on a misunderstanding of another fundamental purpose of the 

MPPAA amendments: to make the church-plan exemption available on equal terms to the local churches 

and church agencies of decentralized congregational 

denominations. 

One of the central criticisms of ERISA’s original 

church-plan definition was that it failed to account for 

“the structural differences” between religious denominations and thereby disadvantaged “congregational 

denominations.” 124 Cong. Rec. 12,107 (May 2, 1978) 

(Rep. Conable). In “hierarchical churches such as the 

Roman Catholic Church,” there are “clear lines of 

responsibility, control and authority” through which 

the national church controls local churches and church 

agencies. Senate Hearing 399 (Gary Nash, Annuity 

Bd. of the Southern Baptist Convention). In congregational denominations, by contrast, “the national or

regional bodies do not control the local congregations.” Id. at 405 (John Ordway, Pension Bds. of the 

United Church of Christ); see 124 Cong. Rec. at 12,107 

(Rep. Conable) (“In the congregational type of denomination, the local churches and agencies are selfgoverning.”). 

In a hierarchical denomination, the bodies administering benefit plans for the employees of churches and 
20

church agencies could be integrated into the national 

church structure. Senate Hearing 405 (John Ordway, 

Pension Bds. of the United Church of Christ). Congregational denominations, however, typically relied 

on pension boards that were “separately incorporated 

from, but controlled by, the denomination.” 125 Cong. 

Rec. at 10,052. Those separate boards administered 

pension and benefit plans for ministers and lay employees working in local churches and in church agencies, including hospitals, schools, and charities.6

After ERISA was enacted, congregational denominations argued to the IRS that plans administered by 

their pension boards satisfied the requirements of the 

original church-plan definition (at least so long as the 

temporary rule allowing coverage of church agencies 

remained in effect) because the pension boards themselves qualified as “churches” that could establish and 

maintain exempt church plans. See, e.g., Senate Hearing 394 (Church Alliance); id. at 420 (Dean Wright, 

Ministers and Missionaries Bd. of the Am. Baptist 

Churches). But, as the Senate sponsor of the MPPAA’s

church-plan amendments explained, “there [wa]s a 

question whether” a plan administered by a pension 

board “is established by a church, as it must be, or by 

a pension board.” 125 Cong. Rec. at 10,052 (Sen. 

Talmadge). The House sponsor of a predecessor bill 

made the same point, observing that “[i]t is not clear 

whether a plan administered by a pension board of a 

 

6

 See, e.g., Senate Hearing 376-377, 468-469 (Charles Cowsert, 

Bd. of Annuities and Relief, Presbyterian Church in the U.S.) (describing plans administered by a pension board for a congregational 

denomination); id. at 379 (Leo Landes, Retirement Bd. of United 

Synagogue of Am.) (same); id. at 413-417 (Dean Wright, Ministers 

and Missionaries Benefit Bd. of the Am. Baptist Churches) (same).
21

congregational church is a plan established and maintained for its employees by a church.” 124 Cong. Rec. 

at 12,107 (Rep. Conable).

The sponsors emphasized that the MPPAA amendments resolved this uncertainty by making clear that 

“[a] plan or program funded or administered through a 

pension board * * * will be considered a church plan” 

if the board meets the requirements for a principalpurpose organization in Section 1002(33)(C)(i). 125 

Cong. Rec. at 10,053 (Sen. Talmadge); see 124 Cong. 

Rec. at 12,107 (Rep. Conable) (same). Nothing in 

those statements indicated that a plan maintained by a 

pension board had to be “established” by a church to 

be exempt. 

3. The lack of support for a church-establishment 

requirement in the legislative record is not surprising, 

because such a requirement would have excluded 

plans that Congress sought to treat as church plans. 

Some congregational denominations took the position 

that their plans were “established” by churches and 

merely “maintained” by pension boards, while recognizing that such boards might not be regarded as part 

of the church for purposes of the original exemption. 

Senate Hearing 461 (John Ordway, Pension Bds. of 

the United Church of Christ). But other denominations believed that their plans were both “established

and maintained through church pension boards.” Id.

at 400-401 (Gary Nash, Annuity Bd. of the Southern

Baptist Convention) (emphasis added); see Pet. Br. 

35-36 (collecting additional examples). And even for 

denominations that could argue that their plans were

“established” by churches and merely “maintained” by 

pension boards, a church-establishment requirement 

would have perpetuated the “question whether [such 
22

a] plan is established by a church * * * or by a pension board”—an uncertainty the MPPAA amendments 

were designed to eliminate. 125 Cong. Rec. at 10,052 

(Sen. Talmadge); see 124 Cong. Rec. at 12,107 (Rep. 

Conable). 

Furthermore, Congress was aware that many plans 

administered by pension boards had been created long 

before ERISA was enacted. See 125 Cong. Rec. at 

10,052 (Sen. Talmadge) (“The average age of a church 

plan is at least 40 years.”); Senate Hearing 411 (Dean 

Wright, Ministers and Missionaries Benefit Bd. of the 

Am. Baptist Churches) (“Virtually all of these pension 

boards were established and in operation many years 

prior to the enactment of ERISA.”). It is implausible 

to think that Congress intended the MPPAA’s amended church-plan definition to turn on an uncertain inquiry into the identity of the organization that had

“established” a plan decades earlier. 

Preserving a church-establishment requirement 

would, moreover, have perpetuated problems that the 

MPPAA amendments were crafted to avoid. Such a 

requirement would have been more easily satisfied by 

hierarchical denominations than by their congregational counterparts, which lacked centralized governing bodies that could readily “establish” plans for the 

employees of church agencies. See 124 Cong. Rec. at 

12,107 (Rep. Conable); Senate Hearing 399 (Gary 

Nash, Annuity Bd. of the Southern Baptist Convention); Senate Hearing 405 (John Ordway, Pension 

Bds. of the United Church of Christ). And a churchestablishment requirement would have placed far 

greater significance on the question whether a particular religious entity qualified as a “church” entitled to 

establish an exempt plan, requiring inquiries like the 
23

one reflected in the 1977 GCM. See IRS GCM 37,266, 

1977 WL 46200, at *1-*2 (Sept. 22, 1977). The need 

for such inquiries had prompted criticism of ERISA’s 

original definition, and supporters of the changes that 

were enacted by the MPPAA amendments emphasized 

that those changes would “eliminate[] the need to 

determine what organizations may be considered as 

parts of a church.” Senate Hearing 458 (John Ordway, Pension Bds. of the United Church of Christ); 

see id. at 375, 463; id. at 471 (Charles Cowsert, Bd. of 

Annuities and Relief of the Presbyterian Church in 

the U.S.). 

4. The drafting history of the MPPAA amendments confirms that a plan maintained by a principalpurpose organization under Section 1002(33)(C)(i) 

need not be established by a church. The language 

that became the MPPAA amendments was originally 

introduced in stand-alone bills in 1978 and 1979. See 

Senate Hearing 101 (quoting S. 1090, 96th Cong., 1st 

Sess. (1979)); 124 Cong. Rec. at 12,108 (quoting H.R. 

12,172, 95th Cong., 2d Sess. (1978)). The initial draft 

of Section 1002(33)(C)(i) in those bills expressly contemplated that pension boards and other principalpurpose organizations would “establish” exempt plans. 

It provided that “[a] plan established and maintained 

by a church * * * shall include a plan established 

and maintained by [a principal-purpose organization].” Senate Hearing 102 (quoting S. 1090) (emphasis added); see 124 Cong. Rec. at 12,108 (quoting H.R. 

12,172) (same). 

As the Third and Seventh Circuits acknowledged, 

that original language made it “quite clear that church 

establishment of a plan would no longer be a prerequisite for the exemption.” St. Peter’s Pet. App. 15a; see 
24

Advocate Pet. App. 20a. But those courts erroneously

assumed that the sponsors reintroduced a churchestablishment requirement in the version that was 

ultimately enacted into law. As relevant here, the 

final version reflected the following change from the 

initial proposal: 

A plan established and maintained * * * by a 

church * * * shall includes a plan established 

and maintained by [a principal-purpose organization]. 

29 U.S.C. 1002(33)(C)(i). That change actually broadened the exemption: Whereas the original language

limited Section 1002(33)(C)(i) to plans that were both 

established and maintained by a principal-purpose 

organization, the final version encompassed any plan 

maintained by such an organization. Such a modification was necessary to achieve the MPPAA amendments’ purpose, because the original draft would have 

excluded plans that were “established” by churches 

but then “maintained by a separate corporation” or 

pension board. Senate Hearing 461 (John Ordway, 

Pension Bds. of the United Church of Christ). It 

would thus be anomalous to treat that change in language as narrowing the exemption and re-imposing 

the church-establishment requirement that the original version of the amendments would have abolished.

C. The Agencies’ Longstanding Interpretation Warrants 

Deference Under Skidmore

If there were any doubt about the best reading of 

the church-plan exemption, it would be resolved by 

the longstanding interpretation applied by the IRS, 

DOL, and PBGC, the expert agencies charged by 

Congress with administering ERISA’s complex statu-
25

tory scheme. That construction should carry particular weight because Congress has repeatedly revisited 

the treatment of church plans under ERISA and related statutes without disturbing the agencies’ interpretation. 

1. Congress assigned responsibility for administering and enforcing the relevant provisions of ERISA to 

the IRS, DOL, and PBGC. 26 U.S.C. 7801(a); 29 

U.S.C. 1132-1135, 1302(b)(3). For more than three 

decades, those agencies have consistently concluded 

that a plan maintained by a principal-purpose organization described in Section 1002(33)(C)(i) need not be 

established by a church to qualify as a church plan. 

See, e.g., DOL Advisory Op. No. 2000-05A, 2000 WL 

744359, at *1 (May 17, 2000); IRS GCM 39,793, 1989 

WL 592761, at *5-*7 (July 6, 1989); IRS GCM 39,007,

1983 WL 197946, at *4-*5 (Nov. 2, 1982). That interpretation is reflected in hundreds of private letter 

rulings and opinion letters confirming the exempt

status of particular plans. Advocate Pet. App. 64a111a (citing 568 examples).

Although the agencies’ interpretation is not embodied in notice-and-comment regulations, the agencies’

implementation of the statute “constitute[s] a body of 

experience and informed judgment” that, under the 

circumstances present here, should be accorded considerable deference. Skidmore v. Swift & Co., 323 

U.S. 134, 140 (1944). Under Skidmore, the weight due 

to such an administrative construction “depend[s]

upon the thoroughness evident in its consideration, 

the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors 

which give it power to persuade, if lacking power to 

control.” Ibid. 
26

The agencies’ interpretation of the church-plan exemption originated in the IRS’s 1982 GCM, which 

recognized that “because of the passage of the 

MPPA[A]” two years earlier, “church plan status no 

longer hinges on whether [a religious] order is a 

church.” 1982 GCM at *6. The IRS explained that the 

absence of a church-establishment requirement followed from the text of the amended statute, which had 

superseded the IRS’s own prior approach reflected in 

the 1977 GCM. Id. at *4-*6. Deference to an agency’s

interpretation is “[p]articularly” appropriate where, 

as here, “the administrative practice at stake involves 

a contemporaneous construction of a statute.” Udall v. 

Tallman, 380 U.S. 1, 16 (1965) (quoting Power Reactor 

Dev. Co. v. International Union of Elec., 367 U.S. 396, 

408 (1961)).

The agencies have, moreover, consistently adhered 

to that construction for more than three decades. 

This Court “normally accord[s] particular deference to 

an agency interpretation of ‘longstanding’ duration,” 

Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S.

461, 487 (2004) (ADEC) (quoting Barnhart v. Walton, 

535 U.S. 212, 220 (2002)), and to agency positions 

applied “with consistency,” Federal Express Corp. v. 

Holowecki, 552 U.S. 389, 399 (2008). And there are 

particularly strong reasons not to disturb a longsettled administrative interpretation where, as here, it 

has generated “substantial reliance” by parties who 

have structured their affairs based on a position consistently and frequently reaffirmed by the responsible

agencies. Zenith Radio Corp. v. United States, 437 

U.S. 443, 457 (1978).

Deference is also appropriate “where [a] regulatory 

scheme is highly detailed.” United States v. Mead
27

Corp., 533 U.S. 218, 235 (2001). That principle applies 

with special force to ERISA, “an enormously complex 

and detailed statute.” Mertens v. Hewitt Assocs., 508 

U.S. 248, 262 (1993). This Court has thus traditionally 

deferred to the IRS, DOL, and PBGC when interpreting ERISA because “to attempt to answer these questions without the views of the agencies responsible for 

enforcing ERISA, would be to embark upon a voyage 

without a compass.” Mead Corp. v. Tilley, 490 U.S. 

714, 726 (1989) (brackets and citation omitted); see 

Beck v. Pace Int’l Union, 551 U.S. 96, 104 (2007) 

(same). And the Court has extended such deference 

even where, as here, the relevant administrative interpretation was reflected in opinion letters rather 

than notice-and-comment regulations. See, e.g., Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. 

Hendon, 541 U.S. 1, 17-18 (2004) (DOL advisory opinion); Mead, 490 U.S. at 722-725 (PBGC opinion letters).

2. Congress’s subsequent treatment of church 

plans confirms that the Court should not “reject as 

impermissible [the agencies’] longstanding, consistently maintained interpretation.” ADEC, 540 U.S. at

488. In the decades since enacting the MPPAA, Congress has repeatedly revisited the legal status of 

church plans to refine their treatment under ERISA,

the Internal Revenue Code, and related laws. In 2015, 

for example, Congress enacted a detailed provision 

modifying the application of a variety of tax provisions 

to church plans. Consolidated Appropriations Act, 

2016, Pub. L. No. 114-113, § 336, 129 Stat. 3109-3113. 

Congress has also preempted the application of certain state laws to church plans. See id. § 336(c), 129 

Stat. 3111; see also Act of July 10, 2000, Pub. L. No. 
28

106-244, 114 Stat. 499 (enacting 29 U.S.C. 1144a). And 

Congress has incorporated the MPPAA definition into 

a variety of other statutes affording exemptions or 

special treatment to church plans. 7

The fact that Congress has repeatedly refined the 

legal treatment of church plans and extended the 

church-plan exemption to other contexts without disturbing the agencies’ longstanding interpretation 

further confirms that the agencies’ interpretation is 

correct. “It is well established that when Congress 

revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the 

‘congressional failure to revise or repeal the agency’s 

interpretation is persuasive evidence that the inter-

 

7

 See, e.g., Social Security Protection Act of 2004, Pub. L. No. 

108-203, § 422, 118 Stat. 536 (amending 42 U.S.C. 411(a)(7) to 

exempt certain benefits paid by church plans); Economic Growth 

and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, 

§ 659, 115 Stat. 139 (enacting 26 U.S.C. 4980F(f)(2), which excludes 

defined-benefit church plans from the requirement to notify participants of benefit accrual reductions in advance); Taxpayer Relief 

Act of 1997, Pub. L. No. 105-34, § 1532, 111 Stat. 1085 (adopting 26 

U.S.C. 9802(c) (now codified as 26 U.S.C. 9802(f)), which partially 

exempts church plans from a prohibition against discrimination 

based on health status); National Securities Markets Improvement 

Act of 1996, Pub. L. No. 104-290, § 508, 110 Stat. 3447-3449 (enacting various provisions exempting church plans from securities 

laws); Health Insurance Portability and Accountability Act of 1996, 

Pub. L. No. 104-191, § 402, 110 Stat. 2084-2085 (enacting 26 U.S.C. 

4980D(b)(3)(C), which exempts church plans from an excise tax 

imposed on health plans that do not meet certain requirements); 

Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. 

No. 99-272, § 10001(b), 100 Stat. 223 (exempting church plans from 

a tax provision related to continuation health coverage). 
29

pretation is the one intended by Congress.’” CFTC v. 

Schor, 478 U.S. 833, 846 (1986) (citation omitted); see, 

e.g., Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 

817, 827-828 (2013).

In 2004, moreover, Congress enacted a statute 

premised on the understanding that a church plan 

need not be established by a church. The statute 

addressed the pension plan of the Young Men’s Christian Association (YMCA). That plan had not been 

established by a church, but the IRS—relying on the 

agencies’ longstanding interpretation—had concluded 

that the plan was “in full compliance” with the churchplan exemption, with the “possible exception” that the 

YMCA was not “affiliated with any one church.” 149 

Cong. Rec. 7380 (Mar. 25, 2003) (Sen. Bunning); see 

150 Cong. Rec. 24,328-24,331 (Nov. 19, 2004) (similar). 

To resolve that uncertainty about the YMCA plan’s 

status, Congress enacted a statute providing that, for 

specified purposes, the plan “shall be treated as a 

church plan (within the meaning of section 414(e) of 

[the Internal Revenue] Code) which is maintained by

an organization described in section 414(e)(3)(A) of 

such Code.” Act of Dec. 21, 2004, Pub. L. No. 108-476, 

§ 1(a), 118 Stat. 3901 (emphasis added). That provision reflects congressional ratification of the agencies’

view that a plan need not be established by a church to 

qualify for church-plan treatment. And the specific 

reference to 26 U.S.C. 414(e)(3)(A)—the Internal 

Revenue Code counterpart to Section 1002(33)(C)(i)—

shows that Congress understood that being “maintained” by a principal-purpose organization described 

in those provisions is sufficient to confer church-plan 

status.
30

D. There Is No Sound Reason To Reject The Agencies’ 

Longstanding Interpretation And Impose A ChurchEstablishment Requirement

The courts of appeals identified no sound reason to 

upset decades of reliance on the agencies’ longstanding interpretation by imposing a church-establishment 

requirement.

1. The courts of appeals appeared to believe that

requiring a church to “establish” a church plan would 

ensure that the church retained control of or financial 

responsibility for the plan. See, e.g., Advocate Pet. 

App. 17a-18a. Even if that were correct, the courts’ 

apparent view that an ERISA exemption should be 

conditioned on continuing church involvement would 

not justify the imposition of a requirement that Congress omitted from the statute. And in any event, 

requiring a church to establish a plan in the first instance would not guarantee such an ongoing role.

The question whether an employer or other entity

“established” an ERISA plan typically arises when 

there is a dispute about whether a benefit plan triggering ERISA obligations exists at all. In that context, the courts of appeals have concluded that the 

establishment of a plan does not require a formal 

written document and instead turns on a practical 

inquiry into the surrounding circumstances. The 

leading decision held that an ERISA plan is “established” if “a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of 

financing, and procedures for receiving benefits.” 

Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th 

Cir. 1982) (en banc); see Williams v. WCI Steel Co.,

170 F.3d 598, 603 n.3 (6th Cir. 1999). 
31

By analogy, requiring a church to “establish” an 

ERISA-exempt plan for the employees of a church 

agency would require the church to play some role in 

the plan’s creation. But even for plans subject to 

ERISA, the employer or other entity that establishes 

a plan in the first instance does not necessarily retain 

ongoing responsibility. ERISA defines the “sponsor” 

responsible for a plan as the employer or other entity 

that “establishe[s] or maintain[s]” the plan. 29 

U.S.C. 1002(16)(B) (emphasis added). And it is not 

uncommon for an ERISA plan to be initially established by one entity and later transferred to a different entity, which assumes responsibility for maintaining it. See, e.g., 29 U.S.C. 1058 (regulating plan mergers and transfers); see also 26 U.S.C. 414(l) (same). 

In such circumstances, the entity that established the 

plan need not retain any continuing financial liability

or other involvement. 

Limiting the church-plan exemption to plans initially “established” by churches thus would not guarantee 

that the churches would play an ongoing role in the

exempt plans. To the contrary, Section 1002(33)(C)(i) 

expressly contemplates that the principal-purpose 

organization that “maintain[s]” such a plan may have

responsibility for the plan’s “administration” and

“funding.” 29 U.S.C. 1002(33)(C)(i). The courts of 

appeals identified no reason why Congress would have 

wanted to condition an exemption for plans funded 

and controlled by church-affiliated principal-purpose 

organizations on a requirement that those plans be 

“established” in the first instance by churches. To the 

contrary, as the Second Circuit observed in a different 

context, “the status of the entity which currently

maintains a particular pension plan bears more rela-
32

tion to Congress’ goals in enacting ERISA and its 

various exemptions, than does the status of the entity 

which established the plan.” Rose v. Long Island R.R. 

Pension Plan, 828 F.2d 910, 920 (1987), cert. denied, 

485 U.S. 936 (1988). 

2. Respondents have also argued that Congress 

would not have intended to exclude the employees of 

large healthcare providers like petitioners from 

ERISA. But the MPPAA amendments unambiguously allow the employees of any tax-exempt organization 

“controlled by or associated with a church” to be covered under an exempt church plan; indeed, Congress 

expressly deemed such employees to be “employee[s] 

of a church.” 29 U.S.C. 1002(33)(C)(ii)(II). It was 

understood at the time that those amendments would 

allow the exemption of plans covering the employees 

of church agencies, including “hospital[s].” Executive 

Session 41 (Daniel Halperin, Deputy Assistant Secretary, Dep’t of Treasury); see, e.g., 126 Cong. Rec. at 

20,208 (Joint Explanation of S. 1076); 125 Cong. Reg. 

at 10,052 (Sen. Talmadge).

There is thus no dispute that the employees of a 

church-affiliated hospital that otherwise satisfies the 

statutory requirements can be covered under an 

ERISA-exempt church plan. Indeed, the Third Circuit emphasized that its interpretation “by no means 

eliminated” the “ability of church agencies to have 

their employees covered by exempt plans.” St. Peter’s

Pet. App. 25a. Instead, the only question is the mechanism by which that result may be achieved. As the 

administering agencies have long concluded—and as 

the statutory text, context, history, and purpose confirm—Congress did not condition the church-plan
33

exemption on a church establishing the plan in the 

first instance.8

 

8

 Respondents have argued that the canon of constitutional 

avoidance supports their position because exempting petitioners’ 

plans from ERISA would violate the Establishment Clause. 

Advocate Br. in Opp. 34-35; St. Peter’s Br. in Opp. 26-27; Dignity 

Br. in Opp. 34-35. The courts of appeals correctly declined to rely 

on the avoidance canon. In other circumstances, this Court has 

recognized that Congress may, consistent with the Establishment 

Clause, respect religious autonomy and avoid entanglement with 

religion by exempting religious nonprofit organizations from 

generally applicable employment regulations. See Corporation of 

the Presiding Bishop of the Church of Jesus Christ of Latter-Day 

Saints v. Amos, 483 U.S. 327, 338 (1987); cf. NLRB v. Catholic 

Bishop of Chicago, 440 U.S. 490, 501-507 (1979). In addition, the 

church-establishment requirement that respondents seek to impose would not cure the purported constitutional defect they 

identify because it would not narrow the range of employees who 

could potentially be covered under ERISA-exempt plans—instead, 

it would merely condition that exemption on the additional procedural step of church establishment.
34

CONCLUSION

The judgments of the courts of appeals should be 

reversed.

Respectfully submitted. 

ROBERT J. NEIS

Benefits Tax Counsel

Department of the Treasury

DEBRA K. MOE

Deputy Chief Counsel 

(Operations)

Internal Revenue Service

KATHERINE E. BISSELL

Deputy Solicitor for 

Regional Enforcement

Department of Labor

JUDITH R. STARR

General Counsel

Pension Benefit Guaranty 

Corporation

EDWIN S. KNEEDLER

Deputy Solicitor General*

JOYCE R. BRANDA

Acting Assistant Attorney 

General

BRIAN H. FLETCHER

Assistant to the Solicitor 

General

MARK B. STERN

ALISA B. KLEIN 

NICOLAS Y. RILEY

Attorneys

JANUARY 2017

 

*

 The Acting Solicitor General is recused in this case.
(1a)

APPENDIX

1. 26 U.S.C. 414(e) provides:

Definitions and special rules

(e) Church plan

(1) In general

For purposes of this part, the term “church plan”

means a plan established and maintained (to the 

extent required in paragraph (2)(B)) for its employees (or their beneficiaries) by a church or by a 

convention or association of churches which is exempt from tax under section 501.

(2) Certain plans excluded

The term “church plan” does not include a plan— 

(A) which is established and maintained

primarily for the benefit of employees (or their 

beneficiaries) of such church or convention or 

association of churches who are employed in 

connection with one or more unrelated trades or 

businesses (within the meaning of section 513); 

or

(B) if less than substantially all of the individuals included in the plan are individuals described in paragraph (1) or (3)(B) (or their beneficiaries).

(3) Definitions and other provisions

For purposes of this subsection— 

(A) Treatment as church plan 
2a 

A plan established and maintained for its employees (or their beneficiaries) by a church or by 

a convention or association of churches includes 

a plan maintained by an organization, whether a 

civil law corporation or otherwise, the principal 

purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, 

or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a

church or a convention or association of churches.

(B) Employee defined

The term employee of a church or a convention or association of churches shall include— 

(i) a duly ordained, commissioned, or licensed minister of a church in the exercise of 

his ministry, regardless of the source of his 

compensation;

(ii) an employee of an organization,

whether a civil law corporation or otherwise, 

which is exempt from tax under section 501 

and which is controlled by or associated with

a church or a convention or association of 

churches; and

(iii) an individual described in subparagraph (E).

(C) Church treated as employer

A church or a convention or association of

churches which is exempt from tax under section 
3a 

501 shall be deemed the employer of any individual included as an employee under subparagraph (B).

(D) Association with church

An organization, whether a civil law corporation or otherwise, is associated with a church or a 

convention or association of churches if it shares 

common religious bonds and convictions with 

that church or convention or association of 

churches.

(E) Special rule in case of separation from plan

If an employee who is included in a church

plan separates from the service of a church or a 

convention or association of churches or an organization described in clause (ii) of paragraph 

(3)(B), the church plan shall not fail to meet the 

requirements of this subsection merely because 

the plan— 

(i) retains the employee’s accrued benefit 

or account for the payment of benefits to the 

employee or his beneficiaries pursuant to the 

terms of the plan; or

(ii) receives contributions on the employee’s behalf after the employee’s separation 

from such service, but only for a period of 5 

years after such separation, unless the employee is disabled (within the meaning of the 

disability provisions of the church plan or, if 

there are no such provisions in the church 

plan, within the meaning of section 72(m)(7)) 

at the time of such separation from service.
4a 

(4) Correction of failure to meet church plan requirements

(A) In general

 If a plan established and maintained for its 

employees (or their beneficiaries) by a church or 

by a convention or association of churches which 

is exempt from tax under section 501 fails to 

meet one or more of the requirements of this 

subsection and corrects its failure to meet such 

requirements within the correction period, the 

plan shall be deemed to meet the requirements 

of this subsection for the year in which the correction was made and for all prior years.

(B) Failure to correct

If a correction is not made within the correction period, the plan shall be deemed not to meet 

the requirements of this subsection beginning 

with the date on which the earliest failure to 

meet one or more of such requirements occurred.

(C) Correction period defined

The term “correction period” means— 

(i) the period, ending 270 days after the 

date of mailing by the Secretary of a notice of 

default with respect to the plan’s failure to 

meet one or more of the requirements of this 

subsection;

(ii) any period set by a court of competent 

jurisdiction after a final determination that

the plan fails to meet such requirements, or, if 

the court does not specify such period, any 

reasonable period determined by the Secre-
5a 

tary on the basis of all the facts and circumstances, but in any event not less than 270 

days after the determination has become final; 

or

(iii) any additional period which the Secretary determines is reasonable or necessary 

for the correction of the default,

whichever has the latest ending date.

(5) Special rules for chaplains and self-employed 

ministers

(A) Certain ministers may participate

 For purposes of this part— 

 (i) In general

A duly ordained, commissioned, or licensed 

minister of a church is described in paragraph 

(3)(B) if, in connection with the exercise of 

their ministry, the minister— 

(I) is a self-employed individual (within 

the meaning of section 401(c)(1)(B), or

(II) is employed by an organization 

other than an organization which is described in section 501(c)(3) and with respect 

to which the minister shares common religious bonds.

(ii) Treatment as employer and employee

For purposes of sections 403(b)(1)(A) and 

404(a)(10), a minister described in clause (i)(I) 

shall be treated as employed by the minister's 

own employer which is an organization de-
6a 

scribed in section 501(c)(3) and exempt from 

tax under section 501(a).

(B) Special rules for applying section 403(b) to 

self-employed ministers

 In the case of a minister described in subparagraph (A)(i)(I)— 

(i) the minister’s includible compensation 

under section 403(b)(3) shall be determined by 

reference to the minister’s earned income 

(within the meaning of section 401(c)(2)) from 

such ministry rather than the amount of compensation which is received from an employer, 

and

(ii) the years (and portions of years) in 

which such minister was a self-employed individual (within the meaning of section 

401(c)(1)(B)) with respect to such ministry 

shall be included for purposes of section 

403(b)(4).

(C) Effect on non-denominational plans

If a duly ordained, commissioned, or licensed 

minister of a church in the exercise of his or her 

ministry participates in a church plan (within the 

meaning of this section) and in the exercise of 

such ministry is employed by an employer not 

otherwise participating in such church plan, then 

such employer may exclude such minister from 

being treated as an employee of such employer 

for purposes of applying sections 401(a)(3), 

401(a)(4), and 401(a)(5), as in effect on September 1, 1974, and sections 401(a)(4), 401(a)(5), 

401(a)(26), 401(k)(3), 401(m), 403(b)(1)(D) (in-
7a 

cluding section 403(b)(12)), and 410 to any stock 

bonus, pension, profit-sharing, or annuity plan 

(including an annuity described in section 403(b) 

or a retirement income account described in section 403(b)(9)). The Secretary shall prescribe 

such regulations as may be necessary or appropriate to carry out the purpose of, and prevent 

the abuse of, this subparagraph.

(D) Compensation taken into account only once

If any compensation is taken into account in 

determining the amount of any contributions 

made to, or benefits to be provided under, any 

church plan, such compensation shall not also be 

taken into account in determining the amount of 

any contributions made to, or benefits to be provided under, any other stock bonus, pension, 

profit-sharing, or annuity plan which is not a 

church plan.

(E) Exclusion

In the case of a contribution to a church plan 

made on behalf of a minister described in subparagraph (A)(i)(II), such contribution shall not 

be included in the gross income of the minister to 

the extent that such contribution would not be so 

included if the minister was an employee of a 

church.
8a 

2. 29 U.S.C. 1002 provides in pertinent part:

Definitions

For purposes of this subchapter:

(1) The terms “employee welfare benefit plan” 

and “welfare plan” mean any plan, fund, or program 

which was heretofore or is hereafter established or 

maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or 

program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, 

or benefits in the event of sickness, accident, disability, 

death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or 

(B) any benefit described in section 186(c) of this title

(other than pensions on retirement or death, and insurance to provide such pensions).

(2)(A) Except as provided in subparagraph (B), 

the terms “employee pension benefit plan” and “pension plan” mean any plan, fund, or program which was 

heretofore or is hereafter established or maintained by 

an employer or by an employee organization, or by 

both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or 

program— 

(i) provides retirement income to employees, 

or

(ii) results in a deferral of income by employees 

for periods extending to the termination of covered 

employment or beyond,
9a 

regardless of the method of calculating the contributions made to the plan, the method of calculating the 

benefits under the plan or the method of distributing 

benefits from the plan. A distribution from a plan, 

fund, or program shall not be treated as made in a 

form other than retirement income or as a distribution 

prior to termination of covered employment solely because such distribution is made to an employee who 

has attained age 62 and who is not separated from employment at the time of such distribution.

* * * * * 

(3) The term “employee benefit plan” or “plan” 

means an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an 

employee welfare benefit plan and an employee pension benefit plan.

* * * * * 

(5) The term “employer” means any person acting 

directly as an employer, or indirectly in the interest of 

an employer, in relation to an employee benefit plan; 

and includes a group or association of employers acting 

for an employer in such capacity.

(6) The term “employee” means any individual 

employed by an employer.

* * * * * 

(16)(A) The term “administrator” means— 

(i) the person specifically so designated by the 

terms of the instrument under which the plan is operated;
10a 

(ii) if an administrator is not so designated, the 

plan sponsor; or

(iii) in the case of a plan for which an administrator is not designated and a plan sponsor cannot 

be identified, such other person as the Secretary 

may by regulation prescribe.

(B) The term “plan sponsor” means (i) the employer in the case of an employee benefit plan established or maintained by a single employer, (ii) the employee organization in the case of a plan established or 

maintained by an employee organization, or (iii) in the 

case of a plan established or maintained by two or 

more employers or jointly by one or more employers 

and one or more employee organizations, the association, committee, joint board of trustees, or other similar group of representatives of the parties who establish or maintain the plan.

* * * * * 

(33)(A) The term “church plan” means a plan established and maintained (to the extent required in 

clause (ii) of subparagraph (B)) for its employees (or 

their beneficiaries) by a church or by a convention or 

association of churches which is exempt from tax under section 501 of title 26. 

(B) The term “church plan” does not include a 

plan— 

(i) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association 

of churches who are employed in connection with 
11a 

one or more unrelated trades or businesses (within 

the meaning of section 513 of title 26), or

(ii) if less than substantially all of the individuals included in the plan are individuals described in 

subparagraph (A) or in clause (ii) of subparagraph 

(C) (or their beneficiaries).

(C) For purposes of this paragraph— 

(i) A plan established and maintained for its 

employees (or their beneficiaries) by a church or by 

a convention or association of churches includes a 

plan maintained by an organization, whether a civil 

law corporation or otherwise, the principal purpose 

or function of which is the administration or funding 

of a plan or program for the provision of retirement 

benefits or welfare benefits, or both, for the employees of a church or a convention or association of 

churches, if such organization is controlled by or 

associated with a church or a convention or association of churches.

(ii) The term employee of a church or a convention or association of churches includes— 

(I) a duly ordained, commissioned, or licensed minister of a church in the exercise of his 

ministry, regardless of the source of his compensation;

(II) an employee of an organization, whether 

a civil law corporation or otherwise, which is exempt from tax under section 501 of title 26 and 

which is controlled by or associated with a 

church or a convention or association of churches; and
12a 

(III) an individual described in clause (v).

(iii) A church or a convention or association of 

churches which is exempt from tax under section 

501 of title 26 shall be deemed the employer of any 

individual included as an employee under clause (ii).

(iv) An organization, whether a civil law corporation or otherwise, is associated with a church or a 

convention or association of churches if it shares 

common religious bonds and convictions with that 

church or convention or association of churches.

(v) If an employee who is included in a church 

plan separates from the service of a church or a 

convention or association of churches or an organization, whether a civil law corporation or otherwise, 

which is exempt from tax under section 501 of title 

26 and which is controlled by or associated with a 

church or a convention or association of churches, 

the church plan shall not fail to meet the requirements of this paragraph merely because the plan— 

 (I) retains the employee’s accrued benefit 

or account for the payment of benefits to the employee or his beneficiaries pursuant to the terms 

of the plan; or

(II) receives contributions on the employee’s 

behalf after the employee’s separation from such 

service, but only for a period of 5 years after 

such separation, unless the employee is disabled 

(within the meaning of the disability provisions 

of the church plan or, if there are no such provisions in the church plan, within the meaning of 

section 72(m)(7) of title 26) at the time of such 

separation from service.
13a 

(D)(i) If a plan established and maintained for its 

employees (or their beneficiaries) by a church or by a 

convention or association of churches which is exempt 

from tax under section 501 of title 26 fails to meet one 

or more of the requirements of this paragraph and corrects its failure to meet such requirements within the 

correction period, the plan shall be deemed to meet the 

requirements of this paragraph for the year in which 

the correction was made and for all prior years.

(ii) If a correction is not made within the correction period, the plan shall be deemed not to meet the 

requirements of this paragraph beginning with the 

date on which the earliest failure to meet one or more 

of such requirements occurred.

(iii) For purposes of this subparagraph, the term 

“correction period” means— 

(I) the period ending 270 days after the date 

of mailing by the Secretary of the Treasury of a notice of default with respect to the plan’s failure to 

meet one or more of the requirements of this paragraph; or

(II) any period set by a court of competent jurisdiction after a final determination that the plan 

fails to meet such requirements, or, if the court does 

not specify such period, any reasonable period determined by the Secretary of the Treasury on the 

basis of all the facts and circumstances, but in any 

event not less than 270 days after the determination 

has become final; or
14a 

(III) any additional period which the Secretary 

of the Treasury determines is reasonable or necessary for the correction of the default,

whichever has the latest ending date.

* * * * * 

3. 26 U.S.C. 414(e) (1976) provides:

Definitions and special rules

(e) Church plan

(1) In general

For purposes of this part the term “church plan” 

means— 

(A) a plan established and maintained for its 

employees by a church or by a convention or association of churches which is exempt from tax 

under section 501, or

(B) a plan described in paragraph (3). 

(2) Certain unrelated business or multiemployer

plans

The term “church plan” does not include a plan— 

 (A) which is established and maintained

primarily for the benefit of employees (or their 

beneficiaries) of such church or convention or 

association of churches who are employed in 

connection with one or more unrelated trades or 

businesses (within the meaning of section 513), or

(B) which is a plan maintained by more than 

one employer, if one or more of the employers in 
15a 

the plan is not a church (or a convention or association of churches) which is exempt from tax 

under section 501.

(3) Special temporary rule for certain church 

agencies under church plan

 (A) Notwithstanding the provisions of paragraph (2)(B), a plan in existence on January 1, 

1974, shall be treated as a church plan if it is established and maintained by a church or convention or association of churches and one or more 

agencies of such church (or convention or association) for the employees of such church (or convention or association) and the employees of one 

or more agencies of such church (or convention or 

association), and if such church (or convention or 

association) and each such agency is exempt from 

tax under section 501.

 (B) Subparagraph (A) shall not apply to any 

plan maintained for employees of an agency with 

respect to which the plan was not maintained on 

January 1, 1974.

 (C) Subparagraph (A) shall not apply with 

respect to any plan for any plan year beginning 

after December 31, 1982.

4. 29 U.S.C. 1002(33) (1976) provides:

Definitions

(33)(A) The term “church plan” means (i) a plan 

established and maintained for its employees by a 

church or by a convention or association of churches 
16a 

which is exempt from tax under section 501 of title 26, 

or (ii) a plan described in subparagraph (C).

(B) The term “church plan” (notwithstanding the 

provisions of subparagraph (A)) does not include a 

plan— 

(i) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association 

of churches who are employed in connection with one 

or more unrelated trades or businesses (within the 

meaning of section 513 of title 26), or

(ii) which is a plan maintained by more than one 

employer, if one or more of the employers in the plan 

is not a church (or a convention or association of 

churches) which is exempt from tax under section 

501 of title 26.

(C) Notwithstanding the provisions of subparagraph (B)(ii), a plan in existence on January 1, 1974, 

shall be treated as a “church plan” if it is established 

and maintained by a church or convention or association of churches for its employees and employees of one 

or more agencies of such church (or convention or association) for the employees of such church (or convention or association) and the employees of one or more 

agencies of such church (or convention or association), 

and if such church (or convention or association) and 

each such agency is exempt from tax under section 501 

of title 26. The first sentence of this subparagraph 

shall not apply to any plan maintained for employees of 

an agency with respect to which the plan was not

maintained on January 1, 1974. The first sentence of 
17a 

this subparagraph shall not apply with respect to any 

plan for any plan year beginning December 31, 1982.

5. Pub. L. No. 108-476, 118 Stat. 3901 provides:

SECTION 1. CERTAIN ARRANGEMENTS MAINTAINED BY THE YMCA RETIREMENT FUND 

TREATED AS CHURCH PLANS.

(a) RETIREMENT PLANS.— 

(1) IN GENERAL.—For purposes of sections 

401(a) and 403(b) of the Internal Revenue Code of 

1986, any retirement plan maintained by the YMCA 

Retirement Fund as of January 1, 2003, shall be 

treated as a church plan (within the meaning of section 414(e) of such Code) which is maintained by an

organization described in section 414(e)(3)(A) of 

such Code.

(2) TAX-DEFERRED RETIREMENT PLAN.—In the 

case of a retirement plan described in paragraph (1) 

which allows contributions to be made under a salary 

reduction agreement— 

(A) such treatment shall not apply for purposes of section 415(c)(7) of such Code, and

(B) any account maintained for a participant 

or beneficiary of such plan shall be treated for 

purposes of such Code as a retirement income 

account described in section 403(b)(9) of such 

Code, except that such account shall not, for purposes of section 403(b)(12) of such Code, be 

treated as a contract purchased by a church for 

purposes of section 403(b)(1)(D) of such Code.
18a 

(3) MONEY PURCHASE PENSION PLAN.—In the 

case of a retirement plan described in paragraph (1) 

which is subject to the requirements of section 

401(a) of such Code— 

 (A) such plan (but not any reserves held by 

the YMCA Retirement Fund)— 

(i) shall be treated for purposes of such 

Code as a defined contribution plan which is a 

money purchase pension plan, and

(ii) shall be treated as having made an 

election under section 410(d) of such Code for 

plan years beginning after December 31, 2005, 

except that notwithstanding the election— 

(I) nothing in the Employee Retirement

Income Security Act of 1974 or such Code 

shall prohibit the YMCA Retirement Fund 

from commingling for investment purposes 

the assets of the electing plan with the assets of such Fund and with the assets of any 

employee benefit plan maintained by such 

Fund, and

(II) nothing in this section shall be construed as subjecting any assets described in 

subclause (I), other than the assets of the 

electing plan, to any provision of such Act,

 (B) notwithstanding section 401(a)(11) or 417 

of such Code or section 205 of such Act, such plan 

may offer a lump-sum distribution option to participants who have not attained age 55 without 

offering such participants an annuity option, and
19a 

 (C) any account maintained for a participant 

or beneficiary of such plan shall, for purposes of 

section 401(a)(9) of such Code, be treated as a 

retirement income account described in section 

403(b)(9) of such Code.

(4) SELF-FUNDED DEATH BENEFIT PLAN.—For 

purposes of section 7702(j) of such Code, a retirement plan described in paragraph (1) shall be 

treated as an arrangement described in section 

7702(j)(2).

(b) YMCA RETIREMENT FUND.—For purposes of 

this section, the term “YMCA Retirement Fund” 

means the Young Men’s Christian Association Retirement Fund, a corporation created by an Act of the State 

of New York which became law on April 30, 1921.

(c) EFFECTIVE DATE.—This section shall apply to 

plan years beginning after December 31, 2003.

6. 26 C.F.R. 1.414(e)-1 provides:

Definition of church plan.

(a) General rule. For the purposes of part I of 

subchapter D of chapter 1 of the Code and the regulations thereunder, the term ‘‘church plan’’ means a plan 

established and at all times maintained for its employees by a church or by a convention or association of

churches (hereinafter included within the term 

‘‘church’’) which is exempt from tax under section 

501(a), provided that such plan meets the requirements

of paragraphs (b) and (if applicable) (c) of this section. 

If at any time during its existence a plan is not a church

plan because of a failure to meet the requirements set 
20a 

forth in this section, it cannot thereafter become a 

church plan.

(b) Unrelated businesses—(1) In general. A plan 

is not a church plan unless it is established and maintained primarily for the benefit of employees (or their 

beneficiaries) who are not employed in connection with 

one or more unrelated trades or businesses (within the 

meaning of section 513).

(2) Establishment or maintenance of a plan primarily for persons not employed in connection with 

one or more unrelated trades or businesses. (i) (A) A 

plan, other than a plan in existence on September 2, 

1974, is established primarily for the benefit of employees (or their beneficiaries) who are not employed in 

connection with one or more unrelated trades or businesses if on the date the plan is established the number 

of employees employed in connection with the unrelated trades or businesses eligible to participate in the 

plan is less than 50 percent of the total number of

employees of the church eligible to participate in the 

plan.

(B) A plan in existence on September 2, 1974, is to 

be considered established as a plan primarily for the 

benefit of employees (or their beneficiaries) who are 

not employed in connection with one or more unrelated 

trades or businesses if it meets the requirements of

both paragraphs (b)(2)(ii) (A) and (B) (if applicable) in 

either of its first 2 plan years ending after September 2, 

1974.

(ii) For plan years ending after September 2, 1974, 

a plan will be considered maintained primarily for the 

benefit of employees of a church who are not employed
21a 

in connection with one or more unrelated trades or 

businesses if in 4 out of 5 of its most recently completed

plan years— 

(A) Less than 50 percent of the persons participating in the plan (at any time during the plan year) 

consist of and in the same year

(B) Less than 50 percent of the total compensation 

paid by the employer during the plan year (if benefits 

or contributions are a function of compensation) to 

employees participating in the plan is paid to, employees employed in connection with an unrelated trade or 

business. The determination that the plan is not a 

church plan will apply to the second year (within a 5 

year period) for which the plan fails to meet paragraph

(b)(2)(ii) (A) or (B) (if applicable) and to all plan years 

thereafter unless, taking into consideration all of the 

facts and circumstances as described in paragraph

(b)(2)(iii) of this section, the plan is still considered to 

be a church plan. A plan that has not completed 5 plan

years ending after September 2, 1974, shall be considered maintained primarily for the benefit of employees 

not employed in connection with an unrelated trade or 

business unless it fails to meet paragraphs (b)(2)(ii) (A) 

and (B) in at least 2 such plan years.

(iii) Even though a plan does not meet the provisions of paragraph (b)(2)(ii) of this section, it nonetheless will be considered maintained primarily for the 

benefit of employees who are not employed in connection with one or more unrelated trades or businesses if 

the church maintaining the plan can demonstrate that 

based on all of the facts and circumstances such is the 

case. Among the facts and circumstances to be considered in evaluating each case are:
22a 

(A) The margin by which the plan fails to meet the

provisions of paragraph (b)(2)(ii) of this section, and 

(B) Whether the failure to meet such provisions was 

due to a reasonable mistake as to what constituted an 

unrelated trade or business or whether a particular 

person or group of persons were employed in connection with one or more unrelated trades or businesses.

(iv) For purposes of this section, an employee will be 

considered eligible to participate in a plan if such employee is a participant in the plan or could be a participant in the plan upon making mandatory employee 

contributions to the plan.

(3) Employment in connection with one or more 

unrelated trades or businesses. An employee is employed in connection with one or more unrelated trades 

or businesses of a church if a majority of such employee’s duties and responsibilities in the employ of the 

church are directly or indirectly related to the carrying 

on of such trades or businesses. Although an employee’s duties and responsibilities may be insignificant

with respect to any one unrelated trade or business, 

such employee will nonetheless be considered as employed in connection with one or more unrelated trades 

or businesses if such employee’s duties and responsibilities with respect to all of the unrelated trades or 

businesses of the church represent a majority of the 

total of such person’s duties and responsibilities in the 

employ of the church.

(c) Plans of two or more employers. The term 

‘‘church plan’’ does not include a plan which, during the 

plan year, is maintained by two or more employers

unless— 
23a 

(1) Each of the employers is a church that is exempt from tax under section 501(a), and

(2) With respect to the employees of each employer, 

the plan meets the provisions of paragraph (b)(2)(ii) of 

this section or would be determined to be a church plan 

based on all the facts and circumstances described in 

paragraph (b)(2)(iii) of this section. 

Thus, if with respect to a single employer the plan fails 

to meet any provision of this paragraph, the entire plan

ceases to be a church plan unless that employer ceases 

maintaining the plan for all plan years beginning after 

the plan year in which it receives a final notification 

from the Internal Revenue Service that it does not 

meet the provisions of this paragraph. If the employer

does cease maintaining the plan in accordance with this 

paragraph, the fact that the employer formerly did 

maintain the plan will not prevent the plan from being a 

church plan for prior years.

(d) Special rule. (1) Notwithstanding paragraph 

(c)(1) of this section, a plan maintained by a church and 

one or more agencies of such church for the employees 

of such church and of such agency or agencies, that is in 

existence on January 1, 1974, shall be treated as a 

church plan for plan years ending after September 2, 

1974, and beginning before January 1, 1983, provided 

that the plan is described in paragraph (c) of this section without regard to paragraph (c)(1) of this section, 

and the plan is not maintained by an agency which did 

not maintain the plan on January 1, 1974.

(2) For the purposes of section 414(e) and this section, an agency of a church means an organization 

which is exempt from tax under section 501 and which 
24a 

is either controlled by, or associated with, a church. 

For example, an organization, a majority of whose 

officers or directors are appointed by a church’s governing board or by officials of a church, is controlled by 

a church within the meaning of this paragraph. An

organization is associated with a church if it shares 

common religious bonds and convictions with that

church.

(e) Religious orders and religious organizations. 

For the purpose of this section the term ‘‘church’’ 

includes a religious order or a religious organization if 

such order or organization (1) is an integral part of a 

church, and (2) is engaged in carrying out the functions 

of a church, whether as a civil law corporation or otherwise.

(f) Separately incorporated fiduciaries. A plan 

which otherwise meets the provisions of this section 

shall not lose its status as a church plan because of the

fact that it is administered by a separately incorporated 

fiduciary such as a pension board or a bank.

(g) Cross reference. (1) For rules relating to 

treatment of church plans, see section 410(c), 411(e), 

412(h), 4975(g), and the regulations thereunder.

(2) For rules relating to church plan elections, see 

section 410(d) and the regulations thereunder.