I'm looking for perspective on the issue of the Top-25 restricted payment rule in DB plans, or specifically in this Cash Balance Plan. We have a participant who is among the Top-25 highest paid employees and would be restricted from taking a lump sum under these rules under normal circumstances. The relevant facts are as follows:
Individually designed DB Plan effective July 1, 2009, restated July 1, 2021.
Plan has only ever covered HCEs (NHCEs have never been covered; professional medical group).
There are approximately 60 participants, but about 70 employees total.
Currently less than 100% funded, but still above 80% threshold.
Benefits include interest credits tied to actual market returns, subject to anti-cutback rules (participants effectively "fund" their own benefit).
Plan Document includes legacy restricted payment language referencing:
Top-25 highest paid HCEs
Current liabilities
Escrow arrangements
An explicit exception stating the restriction does not apply if the plan never benefited any NHCEs.
Here are my two specific questions:
1. From a technical standpoint, is it correct that the legacy top-25 restricted payment rule does not apply in an HCE-only plan, consistent with the "never benefited NHCEs" carve-out found in older individually designed documents?
2. Setting aside funding level thresholds which are not currently triggered, how would you view the risk of allowing distributions in a less than fully funded HCE only DB plan, where early distributions could materially shift funding risk to remaining participants due to anti-cutback provisions? Particularly when the participant seeking the distribution is among the Top-25 highest paid?
More generally, is this just a known but acceptable feature? Is it still legally required to not allow a top 25 paid employee to take his full lump sum? Is this a fiduciary concern requiring discretionary limits? Or if this is not a legal issue, is this something that should be voluntarily adopted to prevent funding issues?
I appreciate any insight you can provide.
