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Applicability of Code section 414(u) (which applies to plans subject t

Everett Moreland

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I read 4318 to apply to governmental plans. Following is 4318(a)(1)(A).

§ 4318. Employee pension benefit plans

(a) (1) (A) Except as provided in subparagraph (B), in the case of a right provided pursuant to an employee pension benefit plan (including those described in sections 3(2) and 3(33) of the Employee Retirement Income Security Act of 1974) or a right provided under any Federal or State law governing pension benefits for governmental employees, the right to pension benefits of a person reemployed under this chapter shall be determined under this section.

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What does everyone think about the applicability of Code section 414(u) (which applies to plans subject to USERRA) to state governmental pension benefit plans? USERRA does provide that a State is an "employer" subject to the requirements of USERRA. However, Section 4318 seems to provide that the laws concerning employee pension benefit plans are not applicable to pension benefit plans that are not subject to ERISA. Since a State plan is not subject to ERISA, isn't it reasonable to infer that USERRA does not apply to State pension benefit plans?

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