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Company Transaction


Guest srwatts

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Guest srwatts

Two companies, A and B, transferred 100% of their assets to Chuck (who owned part of A). Chuck then sold 50% of those assets to Bill. Chuck and Bill then eash transferred the assets which they owned (50% of each of the assets of the two companies) to form Company C, LLC. A & B no longer exist, only C. B had a plan and A did not. They elected to continue to maintain B's plan and when the document was restated, B was included as having their service count towards participation in the plan, because they were already particpating in the plan.

The question is should they also have allowed prior service with A to count towards participating in the plan?

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29 U.S.C. § 1060(b)(1) provides in relevant part that in any case in which the employer maintains a plan which is not the plan maintained by a predecessor employer, service for such predecessor shall, to the extent provided in regulations prescribed by the Secretary of the Treasury, be treated as service for the employer. Becasue the Secretary of the Treasury has not promulgated regulations requiring a successor employer give credit for years of service with a predecessor employer, C is not required to credit such service under the plan. See Phillips v. Amoco Oil Co, (1985, DC AL) 614 F Supp 694 , affd (1986, CA11) 799 F2d 1464 , 7 EBC 2246.

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