February 26, 1999
Steve Rixman, Chairman, Board of Directors
Autotruck Federal Credit Union
3611 Newburg Road
Louisville, Kentucky 40218
You have asked for a legal opinion on the permissibility of a
federal credit union (FCU) investing in a flexible premium deferred
variable and fixed annuity to fund its CEO's deferred compensation
agreement. As explained below, we have no legal objection to
the investment and defer to Region III on any safety and soundness
issues. You have also asked for an opinion from the Office of
Examination and Insurance (E&I) on the accounting treatment
for this investment. We have referred your request to E&I
for a response.
The annuity was purchased and is owned by the FCU with the CEO
listed as the annuitant. Funds in the annuity are allocated between
investment subaccounts. Some of the subaccounts' investments
carry considerable risk. The annuity would be an impermissible
investment for an FCU investing on its own behalf. Although
the annuity contract has an annuity date of May 12, 2034, under
the deferred compensation agreement, when the CEO retires in eight
years, the FCU will recoup its initial investment and the CEO
will receive a lump sum distribution of the accumulated earnings.
It is my understanding that CUNA Mutual has advised the FCU that,
if the FCU continues to hold onto the investment after the CEO
retires, it becomes an impermissible investment for the FCU.
At your FCU's most recent exam, the National Credit Union Administration (NCUA) examiner expressed concern about the permissibility of an FCU investing in an annuity funded by high risk investments that are impermissible investments for FCUs. Your attorney in her December 31, 1998, letter correctly concluded based on prior General Counsel opinion letters that an FCU investing on its own behalf is restricted by NCUA's regulations and the Federal Credit Union Act (the Act), but those limitations do not apply when an FCU is acting in its capacity as an employer providing retirement benefits to employees. We also
Mr. Steve Rixman
Page Two
agree with CUNA Mutual's advice that, if the FCU continues to
hold onto the investment after the CEO retires, it becomes an
impermissible investment.
Although an FCU is not limited by the Act and NCUA regulations when investing to fund an employee retirement plan, the investment should represent sound business judgment and be appropriate for the FCU. The attached letter from
Hattie M. Ulan to Tom Peterson dated March 19, 1992, discusses
some of the safety and soundness issues an FCU should consider
in selecting and funding a plan and concludes that the ultimate
safety and soundness determination lies with the NCUA Regional
Offices.
This office has no legal objection to the FCU's investment in
an annuity to fund a deferred compensation agreement and defers
to Region III on any safety and soundness issues.
Sincerely,
Sheila A. Albin
Associate General Counsel
GC/MFR:bhs
SSIC 3601
99-0206
Enclosure
cc: Region III
E&I