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GAO-11-533R: 

United States Government Accountability Office: 
Washington, DC 20548: 

May 12, 2011: 

The Honorable Sander Levin: 
Ranking Member: 
Committee on Ways and Means: 
House of Representatives: 

The Honorable Richard Neal: 
Ranking Member: 
Subcommittee on Select Revenue Measures: 
Committee on Ways and Means: 
House of Representatives: 

The Honorable Lloyd Doggett: 
Member: 
Committee on Ways and Means: 
House of Representatives: 

Subject: Private Pensions: Little Information Available on Qualified 
Supplemental Executive Retirement Plans: 

On March 28, 2011, we briefed your staffs on the results of our work. 
This report formally conveys the information provided at that briefing. 

To raise private savings for workers' retirement, federal law provides 
tax incentives for contributions to pension plans. Company sponsors of 
private defined benefit (DB) pension plans can claim a tax deduction 
for their contribution amount to a tax-qualified pension plan, and 
employees' taxes on contributions and investment earnings are deferred 
until they retire and start receiving benefit payments.[Footnote 1] In 
fiscal year 2011, tax expenditures for DB pension plans will total 
almost $52 billion in estimated federal income tax revenue losses 
according to the Joint Committee on Taxation.[Footnote 2] These tax 
incentives are structured to strike a balance between encouraging 
employers to start and maintain voluntary, tax-qualified pension plans 
and ensuring that employees receive an equitable share of the tax 
subsidized benefits. 

To achieve and maintain tax-qualified status, DB plans must comply 
with multiple federal requirements that are designed to ensure that 
executives and other highly compensated employees (HCE) do not receive 
excessively high benefits, both in an absolute sense and relative to 
nonhighly compensated employees (NHCE).[Footnote 3] These include 
limits on total benefit levels, limits on the amount of compensation 
that can be included in determining benefit levels, and limits on 
disparities in benefits between HCEs and NHCEs. For instance, the 
Internal Revenue Code (IRC) places a limit of $195,000 on the annual 
benefit that an individual can receive from a tax-qualified pension 
plan beginning at age 62. In addition, it sets a limit of $245,000 on 
the amount of annual compensation that can be used in calculating the 
benefit amount. Third, the IRC and Internal Revenue Service (IRS) 
regulations require that benefits in a tax-qualified plan not 
discriminate significantly in favor of HCEs in terms of coverage and 
benefit amounts (the "nondiscrimination requirements"). 

The goal of the nondiscrimination requirements is to encourage 
expanded coverage and greater distribution of benefits between the 
highly paid and workers at lower earnings levels. To demonstrate 
compliance, plan sponsors may use an IRS preapproved plan or develop a 
customized plan, which must pass general nondiscrimination tests. 
[Footnote 4] These tests generally require a plan sponsor to perform 
mathematical calculations that compare the proportion of NHCEs who 
benefit under a tax-qualified plan with the proportion of HCEs who 
benefit, taking into account their respective benefit accrual rates. 
[Footnote 5] Pursuant to IRS regulations, the timing of plan 
amendments must also be nondiscriminatory. A plan sponsor can, but is 
not required to, request a determination letter from IRS confirming 
that the level of benefits under the plan meets the regulatory 
standards relating to benefit accrual rates. To obtain IRS review of 
whether a plan amendment is nondiscriminatory, the plan sponsor must 
demonstrate compliance with objective requirements by providing 
specific demonstrations in the determination letter request filed with 
IRS. 

Due to the restrictions placed on benefits in a tax-qualified plan, 
some private sponsors of tax-qualified retirement plans provide 
additional nontax-qualified supplemental retirement benefits to 
certain HCEs as part of the HCE's total compensation. These benefits 
do not enjoy the tax advantages conferred upon qualified plans. In 
addition, any assets backing these benefits generally remain company 
assets and, depending on the funding arrangement, could be withdrawn 
by the sponsor or made available to creditors in the case of a sponsor 
bankruptcy.[Footnote 6] Utilizing flexibilities in the 
nondiscrimination rules, some plan sponsors have designed ways to 
indirectly transfer some of these nontax-qualified supplemental 
executive benefits into their existing tax-qualified DB plans. In 
effect, plans accomplish this by increasing the benefits under the 
qualified plan, with an offsetting reduction in the benefits under the 
nonqualified plan, which extends to the HCE the security of DB plan 
funding and the tax benefits of a qualified plan. These arrangements, 
commonly referred to as Qualified Supplemental Executive Retirement 
Plans (QSERP), can provide HCEs with a higher qualified benefit 
amount, the tax advantages provided by a qualified plan, as well as 
the increased benefit security provided by the backing of qualified 
plan assets.[Footnote 7] Since QSERPs are provided to HCEs, but are 
funded by the assets used to pay qualified plan benefits for all 
employees, some observers have questioned whether these arrangements 
affect the benefits promised to NHCEs. To the extent that the share of 
benefits to HCEs was maximized, NHCEs' benefits would represent a 
smaller proportion of the accrued benefits under the company's 
qualified plan. However, a few experts maintain that increasing some 
HCEs' tax-qualified benefits could give HCEs and plan decision makers 
a larger stake in continuing the DB plan and in keeping it adequately 
funded. 

In this context, you asked us to examine several aspects of QSERP 
arrangements. To respond to your request, this report addresses (1) 
what is known about the prevalence and design of QSERP arrangements 
and to what extent recent economic conditions have influenced plan 
sponsors implementing these arrangements; (2) the key regulatory and 
statutory issues associated with these arrangements; and (3) the 
implications of these arrangements for involved parties, including the 
Pension Benefit Guaranty Corporation (PBGC).[Footnote 8] 

Scope and Methodology: 

For the purposes of our review, we focused exclusively on QSERP 
arrangements. To conduct this work, we reviewed relevant federal laws 
and regulations; conducted a comprehensive review of available 
literature on plan designs; and interviewed professional pension 
experts, consultants, and cognizant federal officials. 

We conducted our work from November 2010 to May 2011 in accordance 
with all sections of GAO's Quality Assurance Framework that are 
relevant to our objectives. The framework requires that we plan and 
perform the engagement to obtain sufficient and appropriate evidence 
to meet our stated objectives and to discuss any limitations in our 
work. We believe that the information and data obtained, and the 
analysis conducted, provide a reasonable basis for any findings and 
conclusions in this product. 

Key Findings: 

* The prevalence of QSERPs is unknown because comprehensive data are 
not available, and we were unable to identify sufficient experts with 
broad quantitative information on QSERP arrangements. IRS maintains a 
database that tracks plan sponsors' requests for an IRS determination 
on the acceptability of pension plan amendments, but it does not 
capture data to allow for the systematic identification of amendments 
that have the effect of transferring nontax-qualified benefits into 
their existing tax-qualified DB plans. We were unable to identify any 
other private or public data on the prevalence of QSERPs. In addition, 
there was little qualitative information on their prevalence or 
design. We found no academic or related literature on the prevalence 
or design of QSERPs. While many of the pension experts we interviewed 
were familiar with QSERPs, some stated that they did not possess 
sufficient specialized knowledge about the prevalence or design of 
these arrangements. 

* Recent economic conditions, which contributed to a decline in the 
overall funding of many plans, may have made the implementation of new 
QSERP arrangements less likely.[Footnote 9] However, given the lack of 
data on QSERPs, we cannot confirm whether the number of QSERPs changed 
in response to the economic downturn. It is possible that plan 
sponsors could introduce new QSERPs in the future as the ratio of plan 
assets to plan liabilities improves, but the current pension plan 
funding requirements of the Pension Protection Act of 2006 (PPA) place 
limits on the addition of new liabilities to a tax-qualified plan. 
[Footnote 10] 

* QSERPs are one of a variety of arrangements that plan sponsors may 
use to provide additional qualified benefits to HCEs within the 
constraints of the nondiscrimination rules. 

* Potential QSERP implications may in some instances include a reduced 
federal income tax liability for plan sponsors and a higher and more 
secure qualified benefit amount for HCEs. Any effect on the benefit 
security of NHCEs is uncertain. PPA requirements reduce the likelihood 
that a QSERP could be added to a plan that did not have sufficient 
funding to pay promised benefits. It is uncertain what effect, if any, 
a QSERP arrangement would have on PBGC.[Footnote 11] 

Agency Comments: 

We provided copies of this draft report to the Secretary of the 
Treasury, Secretary of Labor, IRS Commissioner, and PBGC Director for 
review and comment. Each of the agencies provided technical comments, 
which we incorporated into the draft, as appropriate. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies of this report 
to the appropriate congressional committees and other interested 
parties. The report also will be available at no charge on the GAO Web 
site at [hyperlink, http://www.gao.gov]. 

If you or your staff members have any questions about this report, 
please contact me at (202) 512-7215 or jeszeckc@gao.gov. Contact 
points for our Offices of Congressional Relations and Public Affairs 
may be found on the last page of this report. The following GAO staff 
members made key contributions to this report: David Lehrer, Jonathan 
McMurray, Sherwin Chapman, and Chad Williams contributed to all 
aspects of this report; Roger Thomas provided legal support; Frank 
Todisco provided actuarial support; and David Chrisinger assisted with 
report development. 

Signed by: 

Charles Jeszeck:
Director, Education, Workforce, and Income Security Issues: 

Enclosure: 

[End of section] 

Enclosure: Briefing Slides: 

Qualified Supplemental Executive Retirement Plans: 

Briefing for Congressional Staff: 
Committee on Ways and Means: 
House of Representatives: 

March 28, 2011: 

For more information, contact Charles Jeszeck, jeszeckc@gao.gov.	 

Background: 

To promote retirement savings, federal law provides tax incentives for 
pension contributions and earnings. 

Private firms can claim a tax deduction for contributions made to 
pension plans. 

Employees are not required to pay taxes on benefits until receipt. 

The Joint Committee on Taxation estimates that tax expenditures for 
contributions to defined benefit (DB) pension plans and their 
associated earnings will total almost $52 billion in fiscal year 2011. 

The Pension Benefit Guaranty Corporation (PBGC) insures participant 
benefits in qualified single-employer DB plans up to a maximum 
guarantee amount of $54,000 (in 2011) per year for a retiree at age 65. 

The Internal Revenue Code (IRC) contains provisions designed to limit 
tax-deferred benefits available to highly compensated employees (HCE) 
in a qualified plan. 

For example, the IRC: 

* limits the amount of annual compensation that can be used to 
calculate the benefit amount ($245,000 in 2011), and; 

* limits individual annual qualified pension plan benefits ($195,000 
in 2011). 

Under IRC and Internal Revenue Service (IRS) regulations, qualified 
defined benefit plans must not significantly discriminate in favor of 
HCEs. 

Specifically, an employer must: 

* make plan benefits available in a nondiscriminatory manner, 

* not discriminate in plan benefit amounts, and, 

* not discriminate when amending a plan. 

IRS has specific tests for each of these three types of discrimination 
that employers can use to demonstrate that a plan is nondiscriminatory. 

What is a `QSERP?' 

To increase executive retirement benefit amounts beyond the IRC 
limitations, some private sponsors of qualified retirement plans 
provide additional nonqualified supplemental benefits to HCEs in what 
are called Supplemental Executive Retirement Plans (SERP). These 
benefits do not enjoy the tax advantages conferred upon qualified 
plans. In addition, any assets backing these benefits remain company 
assets and, depending on the funding arrangement, could be withdrawn 
or made available to creditors in the case of a sponsor bankruptcy. 

Using flexibilities in nondiscrimination testing, some plan sponsors 
have increased the benefits under the qualified plan, with an 
offsetting reduction in the benefits under the nonqualified plan, to 
make use of plan surplus funds and realize additional tax benefits. 

These arrangements, commonly referred to as Qualified Supplemental 
Executive Retirement Plans (QSERP), are generally associated with 
large defined benefit plans, but small plans also employ similar 
arrangements. 

Research Questions: 

* (Q1) What is known about the prevalence and design of QSERP 
arrangements and to what extent have recent economic conditions 
influenced plan sponsors implementing these arrangements? 

* (Q2) What are the key regulatory and statutory issues associated 
with these arrangements? 

* (Q3) What are the implications of these arrangements for involved 
parties, including PBGC? 

Methodology: General Approach: 

* Reviewed relevant federal laws and regulations. 

* Reviewed available literature on plan designs but did not review any 
individual DB plan designs. 

* Identified and interviewed: 
- professional pension experts,
- consultants and practitioners, and, 
- cognizant federal officials. 

Methodology: Data and Related Limitations: 

Comprehensive quantitative data on the prevalence or design of
QSERP arrangements in the U.S. private pension system are not 
available. 

While IRS maintains a database that tracks plan sponsors' voluntary 
requests for an IRS determination on the acceptability of pension plan 
amendments, the database does not capture data on amendments specific 
to QSERPs. 

After consulting with experts, we were unable to identify or locate 
any other private or public sector data on the prevalence or design of 
these arrangements. 

We interviewed 21 pension experts and consultants and conducted a 
comprehensive review of academic pension literature and found that: 

* there were few experts on QSERP arrangements, and, 

* research on QSERP arrangements was not extensive. 

We are conducting this work in accordance with all sections of GAO's 
Quality Assurance Framework that are relevant to our objectives. The 
framework requires that we plan and perform the engagement to obtain 
sufficient and appropriate evidence to meet our stated objectives and 
to discuss any limitations in our work. We believe that the 
information and data obtained, and the analysis conducted, provide a 
reasonable basis for any findings and conclusions in this product. 

Q1: QSERP Prevalence and Design: 

The overall prevalence of QSERP arrangements is unknown. 

Recent economic conditions, which contributed to decline in the 
overall funding of many plans, may have made the implementation of new 
QSERP arrangements less likely. 

Other factors, such as current funding requirements, may make it less 
likely that the number of QSERP arrangements will increase as economic 
conditions improve. 

Plan sponsors employ numerous techniques to pass the nondiscrimination 
tests while providing additional qualified benefits to HCEs. These 
techniques can include: 

* treating defined contribution plans as DB plans, 

* using different methods to value benefits, 

* grouping of employees, and, 

* aggregating or disaggregating plans. 

Q2: Key Regulatory and Statutory Issues: 

Plans cannot discriminate significantly in favor of HCEs in terms of 
coverage or benefit amounts. 

Plans may use either a nondiscriminatory safe harbor/preapproved plan 
or an individually designed plan, which must pass general 
nondiscrimination tests. 

Nondiscrimination testing offers flexibility in how to demonstrate 
compliance with this requirement. 

The timing of all plan amendments, including QSERP arrangements, must 
be deemed nondiscriminatory by IRS on a "facts and circumstances" 
basis. 

Q3: Implications of QSERP for Involved Parties: 

Plan sponsors may have a reduced federal income tax liability and 
could make use of any plan overfunding. 

HCEs would have a more secure benefit, a greater qualified benefit 
amount, and a larger stake in the DB plan. 

Any effect on the benefit security of NHCEs is uncertain. 

It is also uncertain what effect, if any, a QSERP arrangement would 
have on PBGC. 

Concluding Observations: 

Little is known about the prevalence and design of QSERP arrangements 
because there is a lack of data and few experts. 

As a result, we cannot estimate: 

* the number or proportion of DB plans that have utilized these 
arrangements, 

* the amount of money invested in them, or, 

* the extent to which recent economic conditions have influenced their 
use. 

IRS cannot identify requests for determinations that explicitly 
pertain to QSERP amendments. 

GAO can only report the statements and opinions of a selective sample 
of pension experts and practitioners who were recommended to GAO and 
willing to be interviewed. 

Their statements and opinions may not be independent or represent the 
spectrum of opinions regarding QSERP arrangements. 

GAO cannot evaluate the accuracy or validity of these experts' views 
or whether the potential QSERP designs they discussed are legally 
valid, used frequently, or represent the range of techniques available 
to plans. 

[End of briefing slides] 

Footnotes: 

[1] A DB plan is a qualified plan where the plan sponsor provides a 
guaranteed benefit generally expressed as a monthly benefit based on a 
formula that generally combines salary and years of service to the 
company. 

[2] This estimate reflects tax laws in effect through December 15, 
2010. The tax expenditure is measured as the income tax revenue that 
the government does not currently collect on contributions and 
earnings amounts, offset by the taxes paid on pensions by those who 
are currently receiving retirement benefits. 

[3] For 2011, the IRC defines an HCE as an employee who earns in 
excess of $110,000 per year. 

[4] IRS preapproved plans generally provide uniform benefits to all 
employees. 

[5] For example, to demonstrate that a plan is nondiscriminatory in 
terms of employee coverage, a plan sponsor can use the "ratio test" to 
demonstrate that the percentage of NHCEs who benefit under a plan is 
at least 70 percent of the percentage of HCEs who benefit under the 
plan. 

[6] Special restrictions apply under 26 U.S.C.§ 409A(b). 

[7] According to a Department of the Treasury official, QSERP 
techniques are one of a variety of analytical techniques (e.g., 
involving statistical modeling) that can be applied to plan-specific 
data. Depending on the content of such data, such techniques may 
identify discrete opportunities to enhance HCE benefits that, in turn, 
are reflected in the plan by an amendment increasing benefits. Thus, 
while an employer cannot directly transfer nonqualified deferred 
compensation liability to a qualified plan, various steps can be taken 
that indirectly have that effect. For example, if the terms of the 
nonqualified deferred compensation arrangement provide for that 
compensation to be reduced by the value of the benefit provided by the 
qualified plan, that effect could result from a benefit increase in 
the qualified plan, which might range from an increase for named 
individuals or a specified class of employees (i.e., salaried workers 
at a specified location)--where the increase takes advantage of the 
room available to the plan under the general nondiscrimination in 
benefits testing--to an across-the-board increase in benefits for all 
participants. Further, the benefit increase might be accompanied by an 
independent change in benefits to improve nondiscrimination testing 
results. In addition to the limits set forth under the 
nondiscrimination rules, the IRC limits on annual benefits and annual 
compensation constrain the amount of allowable benefit increase. 

[8] PBGC is a federal corporation that insures the pension benefits of 
participants in qualified DB pension plans. PBGC takes over terminated 
plans that have insufficient assets to pay the benefits promised to 
employees and is responsible for paying those benefits up to certain 
limits set by law. For 2011, the maximum annual benefit amount is 
$54,000 for workers who begin receiving payments from PBGC at age 65. 

[9] Experts indicated that QSERPs were likely more prevalent before 
the economic downturn when plan sponsors implemented QSERPs to make 
use of surplus funds. While the likelihood of new QSERP arrangements 
may have decreased, QSERP arrangements that were implemented in the 
past are likely still in force. Moreover, in the past, there were 
fewer restrictions to prevent plan sponsors from adding QSERP 
arrangements to underfunded plans. 

[10] PPA prohibits a plan sponsor from putting amendments into effect 
that add new liabilities to a plan that is not at least 80 percent 
funded (after taking the amendment into account) unless the sponsor 
makes additional contributions to the plan. Also, PPA requires plan 
sponsors to amortize any unfunded liabilities that are added to a plan 
over a 7-year period. Prior to PPA, such liabilities could be 
amortized over longer periods and, as a result, sponsors could amend 
their plans to increase HCE benefits through a QSERP arrangement 
without regard to the amendment's potential effect on the plan's long-
term viability. 

[11] The financial effects of a QSERP arrangement can create some 
atypical benefit outcomes given PBGC rules governing benefit payouts. 
For example, by law PBGC must allocate plan assets in accordance with 
priority categories. These categories require PBGC to pay benefits 
above the guaranteed limit to a participant that retired or became 
eligible for retirement within 3 years of plan termination. Thus, it 
is possible that an HCE would receive benefits in excess of the PBGC 
limits, while active NHCE employees ineligible for retirement would 
not. Specifically, if plan assets were insufficient to cover all plan 
benefits, and the plan had been amended to include a QSERP at least 5 
years prior to termination, a retired HCE with a QSERP might receive 
benefits in excess of the guarantee, while NHCEs and HCEs whose 
benefits were above the PBGC guarantee limit and who are not 
retirement eligible would not. 

[End of section] 

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