A plan in which the sponsor is dead and all the participants are gone.

[Guest RMM]

Everyone is gone. The company was in horrible shape. No beneficiaries have stepped forward because creditors would immediately attach the account. The bank does not want to have to continue to file 5500s, etc. The bank wants to terminate the plan.

Can the bank step into the shoes of the sponosr and terminate the plan?

My feeling is that this may turn on state corporate or escheat law. I found a case Chambers v. Kaleidoscope which says the court can terminate and distribute an abandoned plan, but there is no other guidance.

Any suggestions? Please? Thanks.

[KJohnson]

My recollection is that this is one of the area that IRS and DOL disagree. 1.411(a)-4(B))(6) states that a benefit lost by reason of escheat is not a forfeiture, but I believe that DOL takes the position that state escheat laws are preempted.

[david rigby]

I can't answer the questions on corporate or escheat law, but the first thing I would do is focus on two things:

Is there a death benefit provision in the plan?

Is there a spouse?

If this is a qualified plan, I'm not sure that creditors have anything to attach, especially if there is a legitimate

beneficiary. Does the bank have an attorney who can offer an opinion?

[Guest Emiliano]

If it's a defined benefit plan, contact the PBGC. If not, then DOL/PWBA office of enforcement has been known to petition courts to terminate plans in these circumstances and distribute the assets.

[Kirk Maldonado]

Who is advising the beneficiaries? The creditors of the company can't attach their benefits under the plan. Obviously, somebody is dispensing some really, really bad legal advice.