10% penalty on overpayments made to 5% owners

[Richard Anderson]

A 5% owner took a lump sum distribution from a Defined Benefit plan that was about $200,000 more than the plan formula allows. I don't know if he is going to return it to the plan or not.

The ERISA Outline Book states "A little known provision in the tax code, IRC 72(m)(5), imposes a 10% penalty on a distribution made to a 5% owner which exceeds the benefits provided for such individual under the plan formula."

Does IRC 72(m)(5) apply in this situation, and if so does it apply if he returns the overdistribution? If it applies, is the 10% penalty on the entire distribution or just on the portion that exceeds the correct distribution amount?