(a)(1) In general. Section 408(b)(1) of the Employee Retirement
Income Security Act of 1974 (the Act or ERISA) exempts from the
prohibitions of section 406(a), 406(b)(1) and 406(b)(2) loans by a plan
to parties in interest who are participants or beneficiaries of the
plan, provided that such loans:
(i) Are available to all such participants and beneficiaries on a
reasonably equivalent basis;
(ii) Are not made available to highly compensated employees,
officers or shareholders in an amount greater than the amount made
available to other employees;
(iii) Are made in accordance with specific provisions regarding such
loans set forth in the plan;
(iv) Bear a reasonable rate of interest; and
(v) Are adequately secured.
The Internal Revenue Code (the Code) contains parallel provisions to
section 408(b)(1) of the Act. Effective, December 31, 1978, section 102
of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17, 1978)
transferred the authority of the Secretary of the Treasury to promulgate
regulations of the type published herein to the Secretary of Labor.
Therefore, all references herein to section 408(b)(1) of the Act should
be read to include reference to the parallel provisions of section
4975(d)(1) of the Code.
Section 1114(b)(15)(B) of the Tax Reform Act of 1986 amended section
408(b)(1)(B) of ERISA by deleting the
[[Page 510]]
phrase ``highly compensated employees, officers or shareholders'' and
substituting the phrase ``highly compensated employees (within the
meaning of section 414(q) of the Internal Revenue Code of 1986).'' Thus,
for plans with participant loan programs which are subject to the
amended section 408(b)(1)(B), the requirements of this regulation should
be read to conform with the amendment.
(2) Scope. Section 408(b)(1) of the Act does not contain an
exemption from acts described in section 406(b)(3) of the Act
(prohibiting fiduciaries from receiving consideration for their own
personal account from any party dealing with a plan in connection with a
transaction involving plan assets). If a loan from a plan to a
participant who is a party in interest with respect to that plan
involves an act described in section 406(b)(3), such an act constitutes
a separate transaction which is not exempt under section 408(b)(1) of
the Act. The provisions of section 408(b)(1) are further limited by
section 408(d) of the Act (relating to transactions with owner-employees
and related persons).
(3) Loans. (i) Section 408(b)(1) of the Act provides relief from the
prohibitions of section 406(a), 406(b)(1) and 406(b)(2) for the making
of a participant loan. The term ``participant loan'' refers to a loan
which is arranged and approved by the fiduciary administering the loan
program primarily in the interest of the participant and which otherwise
satisfies the criteria set forth in section 408(b)(1) of the Act. The
existence of a participant loan or participant loan program will be
determined upon consideration of all relevant facts and circumstances.
Thus, for example, the mere presence of a loan document appearing to
satisfy the requirements of section 408(b)(1) will not be dispositive of
whether a participant loan exists where the subsequent administration of
the loan indicates that the parties to the loan agreement did not intend
the loan to be repaid. Moreover, a loan program containing a
precondition designed to benefit a party in interest (other than the
participant) is not afforded relief by section 408(b)(1) or this
regulation. In this regard, section 408(b)(1) recognizes that a program
of participant loans, like other plan investments, must be prudently
established and administered for the exclusive purpose of providing
benefits to participants and beneficiaries of the plan.
(ii) For the purpose of this regulation, the term ``loan'' will
include any renewal or modification of an existing loan agreement,
provided that, at the time of each such renewal or modification, the
requirements of section 408(b)(1) and this regulation are met.
(4) Examples. The following examples illustrate the provisions of
Sec. 2550.408b-1(a).
Example (1): T, a trustee of plan P, has exclusive discretion over
the management and disposition of plan assets. As a result, T is a
fiduciary with respect to P under section 3(21)(A) of the Act and a
party in interest with respect to P pursuant to section 3(14)(A) of the
Act. T is also a participant in P. Among T's duties as fiduciary is the
administration of a participant loan program which meets the
requirements of section 408(b)(1) of the Act. Pursuant to strict
objective criteria stated under the program, T, who participates in all
loan decisions, receives a loan on the same terms as other participants.
Although the exercise of T's discretion on behalf of himself may
constitute an act of self-dealing described in section 406(b)(1),
section 408(b)(1) provides an exemption from section 406(b)(1). As a
result, the loan from P to T would be exempt under section 408(b)(1),
provided the conditions of that section are otherwise satisfied.
Example (2): P is a plan covering all the employees of E, the
employer who established and maintained P. F is a fiduciary with respect
to P and an officer of E. The plan documents governing P give F the
authority to establish a participant loan program in accordance with
section 408(b)(1) of the Act. Pursuant to an arrangement with E, F
establishes such a program but limits the use of loan funds to
investments in a limited partnership which is established and maintained
by E as general partner. Under these facts, the loan program and any
loans made pursuant to this program are outside the scope of relief
provided by section 408(b)(1) because the loan program is designed to
operate for the benefit of E. Under the circumstances described,
thediversion of plan assets for E's benefit would also violate sections
403(c)(1) and 404(a) of the Act.
Example (3): Assume the same facts as in Example 2, above, except
that F does not limit the use of loan funds. However, E pressures his
employees to borrow funds under P's participant loan program and then
reloan the loan proceeds to E. F, unaware of E's activities, arranges
and approves the loans. If
[[Page 511]]
the loans meet all the conditions of section 408(b)(1), such loans will
be exempt under that section. However, E's activities would cause the
entire transaction to be viewed as an indirect transfer of plan assets
between P and E, who is a party in interest with respect to P, but not
the participant borrowing from P. By coercing the employees to engage in
loan transactions for its benefit, E has engaged in separate
transactions that are not exempt under section 408(b)(1). Accordingly, E
would be liable for the payment of excise taxes under section 4975 of
the Code.
Example (4): Assume the same facts as in Example 2, above, except
that, in return for structuring and administering the loan program as
indicated, E agrees to pay F an amount equal to 10 percent of the funds
loaned under the program. Such a payment would result in a separate
transaction not covered by section 408(b)(1). This transaction would be
prohibited under section 406(b)(3) since F would be receiving
consideration from a party in connection with a transaction involving
plan assets.
Example (5): F is a fiduciary with respect to plan P. D is a party
in interest with respect to plan P. Section 406(a)(1)(B) of the Act
would prohibit F from causing P to lend money to D. However, F enters
into an agreement with Z, a plan participant, whereby F will cause P to
make a participant loan to Z with the express understanding that Z will
subsequently lend the loan proceeds to D. An examination of Z's credit
standing indicates that he is not creditworthy and would not, under
normal circumstances, receive a loan under the conditions established by
the participant loan program. F's decision to approve the participant
loan to Z on the basis of Z's prior agreement to lend the money to D
violates the exclusive purpose requirements of sections 403(c) and
404(a). In effect, the entire transaction is viewed as an indirect
transfer of plan assets between P and D, and not a loan to a participant
exempt under section 408(b)(1). Z's lack of credit standing would also
cause the transaction to fail under section 408(b)(1)(A) of the Act.
Example (6): F is a fiduciary with respect to Plan P. Z is a plan
participant. Z and D are both parties in interest with respect to P. F
approves a participant loan to Z in accordance with the conditions
established under the participant loan program. Upon receipt of the
loan, Z intends to lend the money to D. If F has approved this loan
solely upon consideration of those factors which would be considered in
a normal commercial setting by an entity in the business of making
comparable loans, Z's subsequent use of the loan proceeds will not
affect the determination of whether loans under P's program satisfy the
conditions of section 408(b)(1).
Example (7): A is the trustee of a small individual account plan. D,
the president of the plan sponsor, is also a participant in the plan.
Pursuant to a participant loan program meeting the requirements of
section 408(b)(1), D applies for a loan to be secured by a parcel of
real property. D does not intend to repay the loan; rather, upon
eventual default, he will permit the property to be foreclosed upon and
transferred to the plan in discharge of his legal obligation to repay
the loan. A, aware of D's intention, approves the loan. D fails to make
two consecutive quarterly payments of principal and interest under the
note evidencing the loan thereby placing the loan in default. The plan
then acquires the real property upon foreclosure. Such facts and
circumstances indicate that the payment of money from the plan to D was
not a participant loan eligible for the relief afforded by section
408(b)(1). In effect, this transaction is a prohibited sale or exchange
of property between a plan and a party in interest from the time D
receives the money.
Example (8): Plan P establishes a participant loan program. All
loans are subject to the condition that the borrowed funds must be used
to finance home purchases. Interest rates on the loans are the same as
those charged by a local savings and loan association under similar
circumstances. A loan by P to a participant to finance a home purchase
would be subject to the relief provided by section 408(b)(1) provided
that the conditions of 408(b)(1) are met. A participant loan program
which is established to make loans for certain stated purposes (e.g.,
hardship, college tuition, home purchases, etc.) but which is not
otherwise designed to benefit parties in interest (other than plan
participants) would not, in itself, cause such program to be ineligible
for the relief provided by section 408(b)(1). However, fiduciaries are
cautioned that operation of a loan program with limitations may result
in loans not being made available to all participants and beneficiaries
on a reasonably equivalent basis.
(b) Reasonably equivalent basis. (1) Loans will not be considered to
have been made available to participants and beneficiaries on a
reasonably equivalent basis unless:
(i) Such loans are available to all plan participants and
beneficiaries without regard to any individual's race, color, religion,
sex, age or national origin;
(ii) In making such loans, consideration has been given only to
those factors which would be considered in a normal commercial setting
by an entity in the business of making similar types of loans. Such
factors may include the applicant's creditworthiness and financial need;
and
[[Page 512]]
(iii) An evaluation of all relevant facts and circumstances
indicates that, in actual practice, loans are not unreasonably withheld
from any applicant.
(2) A participant loan program will not fail the requirement of
paragraph (b)(1) of this section or Sec. 2550.408b-1(c) if the program
establishes a minimum loan amount of up to $1,000, provided that the
loans granted meet the requirements of Sec. 2550.408b-1(f).
(3) Examples. The following examples illustrate the provisions of
Sec. 2550.408b-1(b)(1):
Example (1): T, a trustee of plan P, has exclusive discretion over
the management and disposition of plan assets. T's duties include the
administration of a participant loan program which meets the
requirements of section 408(b)(1) of the Act. T receives a participant
loan at a lower interest rate than the rate made available to other plan
participants of similar financial condition or creditworthiness with
similar security. The loan by P to T would not be covered by the relief
provided by section 408(b)(1) because loans under P's program are not
available to all plan participants on a reasonably equivalent basis.
Example (2): Same facts as in example 1, except that T is a member
of a committee of trustees responsible for approving participant loans.
T pressures the committee to refuse loans to other qualified
participants in order to assure that the assets allocated to the
participant loan program would be available for a loan by P to T. The
loan by P to T would not be covered by the relief provided by section
408(b)(1) since participant loans have not been made available to all
participants and beneficiaries on a reasonably equivalent basis.
Example (3): T is the trustee of plan P, which covers the employees
of E. A, B and C are employees of E, participants in P, and friends of
T. The documents governing P provide that T, in his discretion, may
establish a participant loan program meeting certain specified criteria.
T institutes such a program and tells A, B and C of his decision. Before
T is able to notify P's other participants and beneficiaries of the loan
program, A, B, and C file loan applications which, if approved, will use
up substantially all of the funds set aside for the loan program.
Approval of these applications by T would represent facts and
circumstances showing that loans under P's program are not available to
all participants and beneficiaries on a reasonably equivalent basis.
(c) Highly compensated employees. (1) Loans will not be considered
to be made available to highly compensated employees, officers or
shareholders in an amount greater than the amount made available to
other employees if, upon consideration of all relevant facts and
circumstances, the program does not operate to exclude large numbers of
plan participants from receiving loans under the program.
(2) A participant loan program will not fail to meet the requirement
in paragraph (c)(1), of this section, merely because the plan documents
specifically governing such loans set forth either (i) a maximum dollar
limitation, or (ii) a maximum percentage of vested accrued benefit which
no loan may exceed.
(3) If the second alternative in paragraph (c)(2) of this section
(maximum percentage of vested accrued benefit) is chosen, a loan program
will not fail to meet this requirement solely because maximum loan
amounts will vary directly with the size of the participant's accrued
benefit.
(4) Examples. The following examples illustrate the provisions of
Sec. 2550.408b-1(c).
Example (1): The documents governing plan P provide for the
establishment of a participant loan program in which the amount of any
loan under the program (when added to the outstanding balances of any
other loans under the program to the same participant) does not exceed
the lesser of (i) $50,000, or (ii) one-half of the present value of that
participant's vested accrued benefit under the plan (but not less than
$10,000). P's participant loan program does not fail to meet the
requirement in section 408(b)(1)(B) of the Act, and would be covered by
the relief provided by section 408(b)(1) if the other conditions of that
section are met.
Example (2): The documents governing plan T provide for the
establishment of a participant loan program in which the minimum loan
amount would be $25,000. The documents also require that the only
security acceptable under the program would be the participant's vested
accrued benefit. A, the plan fiduciary administering the loan program,
finds that because of the restrictions in the plan documents only 20
percent of the plan participants, all of whom earn in excess of $75,000
a year, would meet the threshold qualifications for a loan. Most of
these participants are high-level supervisors or corporate officers.
Based on these facts, it appears that loans under the program would be
made available to highly compensated employees in an amount greater than
the amount made available to other employees. As a result, the loan
program would fail to
[[Page 513]]
meet the requirement in section 408(b)(1)(B) of the Act and would not be
covered by the relief provided in section 408(b)(1).
(d) Specific plan provisions. For the purpose of section 408(b)(1)
and this regulation, the Department will consider that participant loans
granted or renewed at any time prior to the last day of the first plan
year beginning on or after January 1, 1989, are made in accordance with
specific provisions regarding such loans set forth in the plan if:
(1) The plan provisions regarding such loans contain (at a minimum)
an explicit authorization for the plan fiduciary responsible for
investing plan assets to establish a participant loan program; and
(2) For participant loans granted or renewed on or after the last
day of the first plan year beginning on or after January 1, 1989, the
participant loan program which is contained in the plan or in a written
document forming part of the plan includes, but need not be limited to,
the following:
(i) The identity of the person or positions authorized to administer
the participant loan program;
(ii) A procedure for applying for loans;
(iii) The basis on which loans will be approved or denied;
(iv) Limitations (if any) on the types and amount of loans offered;
(v) The procedure under the program for determining a reasonable
rate of interest;
(vi) The types of collateral which may secure a participant loan;
and
(vii) The events constituting default and the steps that will be
taken to preserve plan assets in the event of such default.
Example (1): Plan P authorizes the trustee to establish a
participant loan program in accordance with section 408(b)(1) of the
Act. Pursuant to this explicit authority, the trustee establishes a
written program which contains all of the information required by Sec.
2550.408b-1(d)(2). Loans made pursuant to this authorization and the
written loan program will not fail under section 408(b)(1)(C) of the Act
merely because the specific provisions regarding such loans are
contained in a separate document forming part of the plan. The specific
provisions describing the loan program, whether contained in the plan or
in a written document forming part of a plan, do affect the rights and
obligations of the participants and beneficiaries under the plan and,
therefore, must in accordance with section 102(a)(1) of the Act, be
disclosed in the plan's summary plan description.
(e) Reasonable rate of interest. A loan will be considered to bear a
reasonable rate of interest if such loan provides the plan with a return
commensurate with the interest rates charged by persons in the business
of lending money for loans which would be made under similar
circumstances.
Example (1): Plan P makes a participant loan to A at the fixed
interest rate of 8% for 5 years. The trustees, prior to making the loan,
contacted two local banks to determine under what terms the banks would
make a similar loan taking into account A's creditworthiness and the
collateral offered. One bank would charge a variable rate of 10%
adjusted monthly for a similar loan. The other bank would charge a fixed
rate of 12% under similar circumstances. Under these facts, the loan to
A would not bear a reasonable rate of interest because the loan did not
provide P with a return commensurate with interest rates charged by
persons in the business of lending money for loans which would be made
under similar circumstances. As a result, the loan would fail to meet
the requirements of section 408(b)(1)(D) and would not be covered by the
relief provided by section 408(b)(1) of the Act.
Example (2): Pursuant to the provisions of plan P's participant loan
program, T, the trustee of P, approves a loan to M, a participant and
party in interest with respect to P. At the time of execution, the loan
meets all of the requirements of section 408(b)(1) of the Act. The loan
agreement provides that at the end of two years M must pay the remaining
balance in full or the parties may renew for an additional two year
period. At the end of the initial two year period, the parties agree to
renew the loan for an additional two years. At the time of renewal,
however, A fails to adjust the interest rate charged on the loan in
order to reflect current economic conditions. As a result, the interest
rate on the renewal fails to provide a ``reasonable rate of interest''
as required by section 408(b)(1)(D) of the Act. Under such
circumstances, the loan would not be exempt under section 408(b)(1) of
the Act from the time of renewal.
Example (3): The documents governing plan P's participant loan
program provide that loans must bear an interest rate no higher than the
maximum interest rate permitted under State X's usury law. Pursuant to
the loan program, P makes a participant loan to A, a plan participant,
at a time when the interest rates charged by financial institutions in
the community (not subject to the usury
[[Page 514]]
limit) for similar loans are higher than the usury limit. Under these
circumstances, the loan would not bear a reasonable rate of interest
because the loan does not provide P with a return commensurate with the
interest rates charged by persons in the business of lending money under
similar circumstances. In addition, participant loans that are
artificially limited to the maximum usury ceiling then prevailing call
into question the status of such loans under sections 403(c) and 404(a)
where higher yielding comparable investment opportunities are available
to the plan.
(f) Adequate security. (1) A loan will be considered to be
adequately secured if the security posted for such loan is something in
addition to and supporting a promise to pay, which is so pledged to the
plan that it may be sold, foreclosed upon, or otherwise disposed of upon
default of repayment of the loan, the value and liquidity of which
security is such that it may reasonably be anticipated that loss of
principal or interest will not result from the loan. The adequacy of
such security will be determined in light of the type and amount of
security which would be required in the case of an otherwise identical
transaction in a normal commercial setting between unrelated parties on
arm's-length terms. A participant's vested accrued benefit under a plan
may be used as security for a participant loan to the extent of the
plan's ability to satisfy the participant's outstanding obligation in
the event of default.
(2) For purposes of this paragraph,
(i) No more than 50% of the present value of a participant's vested
accrued benefit may be considered by a plan as security for the
outstanding balance of all plan loans made to that participant;
(ii) A plan will be in compliance with paragraph (f)(2)(i) of this
section if, with respect to any participant, it meets the provisions of
paragraph (f)(2)(i) of this section immediately after the origination of
each participant loan secured in whole or in part by that participant's
vested accrued benefit; and
(iii) Any loan secured in whole or in part by a portion of a
participant's vested accrued benefit must also meet the requirements of
paragraph (f)(1) of this section.
(g) Effective date. This section is effective for all participant
loans granted or renewed after October 18, 1989, except with respect to
paragraph (d)(2) of this section relating to specific plan provisions.
Paragraph (d)(2) of this section is effective for participant loans
granted or renewed on or after the last day of the first plan year
beginning on or after January 1, 1989.
(Approved by the Office of Management and Budget under control number
1210-0076)
[54 FR 30528, July 20, 1989]
