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Alvin D. Lurie Dies at 92

We report with great sadness the death of Alvin D. "Al' Lurie Nov. 17, 2015. Most recently Of Counsel to the Wagner Law Group, Al"s career spanned decades of service in the employer-sponsored retirement plan arena. He was the first person to be appointed Assistant Commissioner (Employee Plans and Exempt Organizations) under ERISA, a prolific author, an AV-rated attorney in private practice, and a Charter Fellow of the American College of Employee Benefits Counsel. Al will be greatly missed.

Alvin Lurie's Recent Employee Benefits Articles

Excerpt: The first article, It's a PIP - Or Is It?, concerns 'an idea ... to make employers in small businesses set up a payroll deduction facility for their employees not covered by employer-sponsored retirement plans, for the purpose of easing the making of contributions to an IRA established by or on behalf of the employee.' The second one, All in the Family on Foley Square, Lurie discusses the 2nd Circuit's recent cash balance plan decision in Hirt v. The Equitable Retirement Plan .... [And the third article is: Triple Play: Stevens to Roberts to Thomas or A View of LaRue.]

Alvin D. Lurie Receives Lifetime Employee Benefits Achievement Award

Excerpt: "BenefitsLink congratulates Alvin D. Lurie for having received the Lifetime Employee Benefits Achievement Award from the Employee Benefits Committee of the American Bar Association's Section on Taxation.... Al's broad experience with employee benefit plan operation, design and policy, coupled with his gift for clever and insightful writing (I think of him as the Mark Twain of ERISA) make him a national treasure."

Call for Authors for Lurie's New Treatise on the Federal Income Taxation of Pensions

Excerpt: Alvin Lurie writes to tell us that he will be the general editor of a forthcoming publication of a new treatise on the federal income taxation of pensions and other 'qualified' or nonqualified retirement arrangements, by a major legal publisher, shooting for publication in late 2007.

Al Lurie on the Decline in Defined Benefit Plans: 'The Canaries Sing But They Sing Not To Thee'

Excerpt: The subject is pensions. The mine is the deepening descent of defined benefit plans as they continually plunge in popularity, with a corresponding decline in numbers; while the canaries are the signs of danger in the mine. Thee are all those who can play a role in digging pensions out of this hole, but do not heed the warnings.

Corrected Address for Alvin D. Lurie, Author of 'This Time is the Sky Really Falling on DB Plans?' (PDF)

An earlier version of Mr. Lurie's splendid article contained an outdated address and phone number at the end of the article; a corrected version of the article is available at this link, showing his correct address (Larchmont NY, phone (914) 834-6725). We regret the error!

Al Lurie: Numbers Game In Congress Stalls Pension Reform and Cash Balance Legislation (PDF)

6 pages. Excerpt: As these lines are being written, the conference committee and its staffs are at work on that task that might spell life or death for the defined benefit scheme and, not so incidentally, for its cash balance variant.

Toward a Trusty Test to Track, and Tax, the Tax Shelters

Prominent ERISA attorney Alvin D. Lurie asks, "How is one to know the bounds of the law in a universe where no one has been able to draw a generally recognized boundary line between abusive and nonabusive tax shelters?"

Murphy's Law Has IBM Singing the Big Blues (PDF)

8 pages. Pension attorney Al Lurie analyzes (skewers?) the district court's reasoning in the recent Cooper v. IBM case, holding IBM's cash balance plan to be illegal under the Age Discrimination in Employment Act.

Obama's Trojan Horse: The 3.8% 'Unearned Income Medicare Contribution' Provision in the ACA

"One has to believe it was no accident that the Tax Code amendment [adding section 1411 to the Internal Revenue Code] is buried deep within and close to the end of the nearly 3,000-page two-part legislative package. Doubtless only a relatively few who read the ACA before (or even after) its enactment got as far as section 1402 of HCRA; and, of those few, even fewer were searching for new tax legislation in that section or recognized the enormous impact of Section 1411 as an income tax rather than the payroll tax that its 'Medicare' title connoted.... But it is not clear how that strategy will play out in the Supreme Court when, as seems likely, a case testing the tax standing of Section 1411 appears on the Court's docket."

The So-Called 3.8% Medicare Surtax: Unfit for Survival

"Section 1411 of the IRC, often erroneously called a Medicare surtax, is in actuality not that at all, and is rather in every respect a completely separate, full-blown, second income tax imposed on individual taxpayers, on trusts and estates, and indirectly on passive owners of interests in S corporations, LLCs and partnerships, on recipients of interests in qualified pension and other qualified plans and charitable remainder trusts inter alia -- an extraordinarily wide swath of taxpayers.... Even more problematic than the misleadingly false labeling of the tax is the establishment, as part of the Affordable Care Act, of a complicated, unbelievably difficult second income tax for the sole purpose of providing the government funds required to administer the health reform law, as long into the future as that legislation remains on the books."

Unfinished Fiscal Fix -- But the Cliff Is Still There

"There is ... a litany of other taxes, penalties and fees introduced in the ACA ... [that] could legitimately be brought to bear by Republicans in addressing the fiscal cliff problem ... inasmuch as they, like the Medicare taxes, have been designed to hit high bracket businesses and individuals, by reason of being (i) targeted at big businesses (viz., medical device makers, pharmaceutical manufacturers, and health insurance companies), or (ii) drafted with specific thresholds based on size of business payrolls or on individuals' income levels, as regards health insurance or self-insurance mandates imposed on businesses, or relating to insurance that individuals must purchase for themselves or their families, or (iii) imposed on the purchase of a specific luxury health item colloquially called a 'Cadillac insurance plan.'"

'A Menace to the State'

"The full quotation, of which the above title is a segment, goes 'Every law not based on wisdom is a menace to the State.' ... The decision of the Supreme Court upholding the constitutionality of the Affordable Care Act, resting on Congress' Taxing power under the Constitution, is largely the act of one man, its Chief Justice.... Historians must search more deeply for the reason that Justice Roberts, who knows constitutional law as well as any legal scholar today, was moved to rest the most major social legislation of our time on a foundation so vulnerable to challenge."

A Nonpartisan View of the Uncivil Wars Over Health Care Law and How They Have Affected the Three Branches of Our Government, Particularly the Self-Inflicted Wounds of the Supreme Court

"These battles have engendered great animosity among the participants, that have damaged the institutions in ways that have, at the least, greatly damaged their prestige and authority to perform their responsibilities, but -- more seriously -- have diminished their ability to carry out their Constitutional duties to govern, to legislate, and to adjudicate.... The price to be paid by the country at large for all this cannot be ignored. Serious efforts must be made to capture the key benefits of the present ACA while tempering its frightful excesses and budget-busting costs for government, business and individuals. This must be bipartisan solution, or the jockeying between the parties will continue indefinitely."

Roberts Rules: First Impressions of the Supreme Court Ruling

"There can be no argument that Chief Justice Roberts crossed [the Anti-Injunction Act] bridge with a deftness that even his critics would have to admire. The opinion is a prime example of adroit lawyering, a veritable tour de force. Lawyers can certainly appreciate the art with which Roberts builds his case. But much of the general public is bound to find unsatisfactory this twisting of the word 'tax' to have entirely contradictory meanings when exactly the same economic event is tested under two separate and distinctive legislative enactments in the same litigation by the same judges on the same day, in one with the object of reaching a no-tax conclusion, in the other a tax conclusion."

Governmental Pension Plans: Can Peter's Sponsor Borrow From Peter To Pay Peter?

"Whose skin is in the game when pension plans make loans to plan sponsors to pay pension contributions, and is the answer different if the plan sponsor is a government body? Those questions come to mind on learning that last year the highest elected officials in New York State authorized financially distressed local governments in the state to use a problematic borrowing scheme to defer a portion of their pension liabilities, by, in effect, borrowing from the state pension system to satisfy significant percentages of contributions owed to the pension trust for the retirement benefits of their respective employees."

March Madness at the Court -- Sweet Sixteen Players? No, Nifty Nine

"Important as the unconstitutionality of the health care law may be, whether in part or in toto, an even much larger issue potentially is at stake, which the Court as a whole, or one or more of the several opinions which its Justices may file (concurring, concurring in part, dissenting or whatever), might confront -- namely, how big is too big a role of the Federal government? The issue divides the political parties and the electorate at large at this time, and it obviously directly affects one's view of the health care reform legislation. But, in a larger sense, it affects the entire fabric of our society."

The Third Burning of Washington: Uncivil Health Care Wars Continue

"[T]he third branch of our democracy, the judiciary, may be about to take its lumps alongside the other two, as the Supreme Court takes up a case that is at the core of much of the breakdown of comity among the working parts of our federal government that has exacerbated the low esteem in which the government is presently held by the public.... [T]he impending health care review by the Court could actually carry much more potential threat to the Court's authority than Gore versus Bush[.]"

CIGNA Cash Balance Conversion Case: Justice Trumps Law 6-to-2 -- But Who Got It Right?

"[H]as the Court now taken a second large step towards loosening the tight-knit set of enforcement provisions that Congress crafted with such precision in section 502 of ERISA, where it spelled out with exquisite care the permissible civil actions for enforcing the requirements of ERISA, specifying not just the harms proscribed and the corresponding remedies (e.g., recovery of lost benefits, injunctions, breach of fiduciary suits, clarifications of future benefits, other appropriate equitable relief), but also who may bring the remedial actions (for some causes, participants and beneficiaries, for others, the plan, for another, the Secretary of Labor along with participants, beneficiaries and fiduciaries)?"

What Chance of Repealing Health Care Reform in the New Congress?

"The new law is called by the encyclopedic title Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act. The White House and Republican leadership called the Act a prototype for future compromises, foreshadowing a new era of bipartisan actions."