New Jersey’s Retirement System Should Be Disqualified

To be qualified a government plan must meet some of the standards laid out in IRC section 401(a) including:

(25) Requirement that actuarial assumptions be specified.— A defined benefit plan shall not be treated as providing definitely determinable benefits unless, whenever the amount of any benefit is to be determined on the basis of actuarial assumptions, such assumptions are specified in the plan in a way which precludes employer discretion.

Because of the elimination of retiree Cost-of-living-adjustments (COLAs) New Jersey public employees should be paying taxes on the benefits being accrued for them.  Terry A.M. Mumford of the law firm Ice Miller LLP thinks otherwise but I am unpersuaded by her two arguments:

In Session 703 of the EA meeting where I brought up my concern Ms. Mumford agreed that government plans must meet IRC section 401(a)(25) to be qualified under IRS regulations but the elimination of COLAs, even for current retirees, does not violate 401(a)(5) because:

  1. COLAs are not considered an actuarial adjustment for 401(a)(25) purposes; and
  2. Definitely determinable means as of Normal Retirement Age and anything that happens after benefits start is permissible.

I think I’m right on the first point and I’m certain on the second.  In the extreme case Ms. Mumford sees nothing wrong with a retiree getting a first month’s payment at their NRA with any future payments entirely contingent upon the the whim of the state’s legislature.   I think not but who’s going to argue the point?

Sure all those plaintiffs in various states who are fighting to regain COLAs might get their plans disqualified but all that will get them is a big tax bill if not for current retirees then certainly for all those public workers who are accruing benefits tax-free….for now.

Absent court challenge what are the chances of all these public retirement systems who are violating 401(a)(25) getting punished?  Is it too much to expect the IRS to enforce their own regulations?

31 responses to this post.

  1. Posted by Tough Love on April 11, 2013 at 2:31 am

    John, I tend to agree with Terry Mumford. Key are the words BENEFIT and ACTUARIAL ASSUMPTION and that the IRS Reg. calls for definitely determinable benefits. Clearly COLA is a Benefit, but what actuarial assumptions are needed in the DETERMINATION of the dollar amount of the COLA “BENEFIT” itself? While there would be actuarial assumptions used in calculation the PRESENT VALUE of that benefit on any given date, I don’t see any “ACTUARIAL ASSUMPTION” used in determination of the COLA benefit itself, and use of the CPI (or say 2/3 of the CPI as in NJ) in it’s determination is hardly an “actuarial assumption”. Therefore, changing or eliminating eliminating the COLA benefit that does NOT use actuarial assumptions in its “determination” would not seen to violate THAT IRS reg. …although it might be in violation of others (e.g., anti-cutback provisions).

    What the IRS regulation likely had in mind (as an example) might be a Lump Sum provision. Clearly the dollar amount of the Lump Sum cannot be “definitively determined” without specifics as the the mortality table and interest rate used to discount expected future payments.


    And …. what’s the point? The IRS is not going to tax-disqualify Public Sector Plans (likely never, but certainly not while Obama is in office)

    And a thought …… since we (the Taxpayers) are having SO MUCH trouble getting Public Sector pensions DOWN to a reasonable/affordable level (something close to what Private Sector workers get), a nice backdoor way to do so might be to tax-disqualify their Plans. The republicans should add this to their playbook if they ever become the majority party.


    • The actuarial assumption has to do with the best estimate of what the COLA will end up being based on estimating what some external measure that the employer has no control over, like the CPI, will be. But you need to go beyond the numbers to the root reason for 401(a)(25). It’s not about protecting any participant benefits as it is about protecting IRS tax money. The government is fine with participants getting less than promised (nobody gets full benefits when PBGC takes over) but they do want what they’re supposed to get.

      Take the simplest example. You IRS allows you to put $1,000 into a retirement plan in 2013 to fund a benefit that will be paid in 2030. That’s $1,000 that would otherwise have gone into corporate profits upon which corporate taxes would be paid or given to employees in salary upon which income taxes would be paid (obviously for public plans with no profits it would go to the employee in salary). The IRS kindly is not taxing you on that money in the expectation of getting it (and much more) back later when it gets paid out to the participant in some taxable form. That is, if all assumptions are met, that $1,000 may wind up as $3,000 being paid in a taxable lump sum to that participant in 2030. The IRS might have given up $200 in income in 2013 but they would get $600 in 2030. But what if the employer could arbitrarily cut payout amounts? Of course participants would get less but the IRS which had been waiting so patiently for their tax money will also be screwed.


      • Posted by Tough Love on April 11, 2013 at 12:52 pm

        While it seems to be a stretch to call an estimate of the CPI an “actuarial assumption”, I suppose the same could be said for investment returns or discount rates …. which are generally accepted as actuarial assumptions in pension calculations.


  2. Posted by Al Moncrief on April 11, 2013 at 11:10 am

    Don’t public plans report to the IRS and also to GASB in surveys the status of their COLAs as “ad hoc” or “automatic”? It would be interesting to see how states that now argue that they have “ad hoc” COLAs have described those COLAs in such surveys in the past.

    If COLAs are not an actuarial assumption then why are they incorporated into the calculation of future liabilities in CAFRs? Colorado PERA’s auto COLA of 3.5% is not tied to any measure of inflation. When the Colorado Legislature unilaterally took these accrued benefits in 2010 they deprived both Colorado PERA retirees and the IRS of future income/revenue.


    • Public plans don’t have to report anything to IRS (though PEPTA would change that if it passes) and GASB is a private company that doesn’t even need to be heeded (e.g. local governments in NJ).

      COLA’s, if clearly defined, are certainly actuarial assumptions and Mumford’s reasoning is warped, I suspect, by having to defend a position her clients would prefer:


      • Posted by Al Moncrief on April 11, 2013 at 8:25 pm

        Colorado PERA has always described the PERA COLA as “automatic,” at least until they decided that they wanted to seize these accrued benefits. PERA describes the COLA as “automatic” in its publication “History of Colorado PERA Legislation” (which they scrubbed clean in 2010), however, we have their original publication. Buck Consultants in a study conducted for PERA describes the PERA COLA as “automatic.” Colorado law states that the COLA benefit “shall” be paid by the pension administrator. When the current COLA was enacted in 2001, testimony to the legislative committee that heard the bill described the COLA as an ongoing liability of Colorado PERA and as “guaranteed.”

        Under the COLA-theft bill, SB10-001, Colorado PERA members are out approximately $9 billion in contracted benefits over their lives, and the IRS is out about $2 billion in future revenue. Funny that the IRS doesn’t seem to care all that much about a loss of $2 billion in U.S. government revenue. Funny that state governments can pass legislation diminishing federal revenue by $2 billion at will.


        • Posted by Tough Love on April 11, 2013 at 8:51 pm

          Al, The $9B is an extraordinary exaggeration. Money not stolen from taxpayers to pay your excessive pensions will be spent by the Taxpayers generating income and profits to the recipients that will be taxed by the IRS.

          You’re just pissed your gravy train has slowed down (more to come …. count on it).


          • Posted by Al Moncrief on April 11, 2013 at 9:15 pm

            Hi TL, I think pension benefits in the US average about $29,000? Not really lavish. I know you just want to take money from these old people to lower future tax rates, but in the U.S. we can’t just go about taking people’s property. There are consequences. I expect that the COLA theft bills that have been enacted by state legislatures will be overturned. Have you been watching Pennsylvania? The unions there say they will sue even over the taking of future accruals, pension benefits that have not even been earned yet. In Colorado the Legislature went after benefits accrued over prior decades. I don’t feel “pissed,” just motivated to see that justice prevails for Colorado’s PERA retirees.

          • Posted by Tough Love on April 12, 2013 at 12:45 am

            Al, Doesn’t your twisting (or omission) of the truth or pertinent facts bother you at all?

            You said …” I know you just want to take money from these old people to lower future tax rates”.

            The money you are speaking of is COLA Pension increases … that with VERY few exceptions are ONLY included in Public Sector pensions. If we took 100% of them away (AND reversed all COLA increses given in past years) the horrible horrible result you speak of is the ACTUAL situation virtual all Private Sector pensioners fall into. What makes you deserving of a better deal ?

            You can’t Bullshi* me.

    • Posted by Tough Love on April 11, 2013 at 1:01 pm

      Quoting Al …”When the Colorado Legislature unilaterally took these accrued benefits in 2010 they deprived both Colorado PERA retirees and the IRS of future income/revenue.”

      Al, I can’t resist restating that quote from the Taxpayers’ perspective. Here goes:

      “When the Colorado Legislature unilaterally took these accrued benefits in 2010 they finally stopped these unjust increases, far in excess of actual inflation and unnecessarily depriving Private Sector TAXPAYERS of money to fund their MUCH smaller retirements”


      • Posted by Al Moncrief on April 11, 2013 at 8:32 pm

        TL, you don’t seem to have much respect for contracts, what other provisions of the U.S. Constitution should we ignore? Colorado taxpayers have nearly the lowest state tax burden in the country, and are the 15th wealthiest, they can afford to pay their bills, meet their contractual obligations.


        • Posted by Tough Love on April 11, 2013 at 8:57 pm

          My disrespect for “contracts” pales in comparison to your very greedy attitude that Public Sector workers deserve MORE than their Private Sector counterparts and that those Private Sector counterparts should pay for it.

          So tell me ….what’s inaccurate in my ‘re-statement” of that quote above ? You like harping on the “contract” issue, but you won’t touch Public vs Private Sector Compensation fairness with a 10 foot pole.


          • Posted by Al Moncrief on April 11, 2013 at 9:28 pm

            Hey TL, an expectation that a contract to which one is a party will be honored is not “greed.” An expectation that accrued, earned benefits will be paid is not “greed.” Why are you so wound up about taxpayers meeting their contractual obligations to elderly pensioners, but you seem to have little concern about taxpayers meeting their contractual obligations to IBM, HP, Lockheed Martin? Why are you not proposing the breach of corporate contracts to lower the “burden” on taxpayers? What analysis resulted in your conclusion that contracts should be broken for public pensioners, but corporate contracts honored?

            Of course, I’m “harping” on contracts. Contracts are the whole issue here. There’s nothing else to harp on. If you don’t like current pension contracts, seek prospective, legal reform of future pension contracts.

            TL, if you believe that workers in the public sector are overpaid, work for a reduction of such compensation in the future, but don’t try to break existing contracts. As I recall, inflation has exceeded the level of the PERA COLA during its existence.

            Every person deserves to know what they are being paid for each day that they work, including deferred pension compensation. Governments cannot take back what has already been earned.

          • Posted by Tough Love on April 12, 2013 at 2:17 am

            Quoting AL …”an expectation that a contract to which one is a party will be honored is not “greed.”

            That’s correct Al, but if you are the recipients (the plan participants) of the benefits of a contract negotiated by 2 self-interested colluding parties (the Unions and the politicians) screwing a 3-rd party (the Taxpayers) deemed responsible to pay the bill, then you are a fool…. because EVENTUALLY that 3-rd party will refuse to pay.

            As you have pointed out, there are many things that need change in Corporate America … not the least of which is lower pay at the highest levels AND higher marginal tax rates. And Private Corporations themselves can be and are quite greedy, as evidenced by their lobbying efforts and campaign contributions. But each of us (IF you chose to stand up and protest such misdeeds) can only fight so many battles. There are others I find worthy to fight …. i.e., Medical Laboratory billing rates to the uninsured routinely 10-20 times the rates they freely accept from insured customers is one that I find particularly unsavory …. but I haven’t got the time or energy for that battle.

            By training and experience I have considerable knowledge about pensions and clearly understand how the Union/Politician cabal has screwed the taxpayers and how the consequences will grow and fester with unending tax increases and reduced Public Services unless stopped. I’ve chosen to take a stand on THIS issue and advocate for reform. Others will have to fight the the other battles.

            And quoting again …”Contracts are the whole issue here. There’s nothing else to harp on. ” The “contracts” you so demand be honored were not set in arms length negotiations. The elected officials on one side of the table should have been looking out for TAXPAYER interests, but instead they betrayed the Taxpayers for favors (campaign contributions and election support) from the Unions. And it doesn’t matter whether the excessive pensions are Union negotiated or stated in statues. Union money generated that excess. As I have said many times before, Taxpayers have every right to renege on such fraudulently generated “contracts”.

          • Posted by Al Moncrief on April 12, 2013 at 12:49 pm

            Good morning TL, as you know, in Colorado there was no “collusion” in the enhancement of Colorado PERA pension benefits. Former Republican Governor Bill Owens sought and signed legislation a decade ago to put in place early retirement incentives for older, “more expensive” public workers in the Colorado PERA system. Governor Owens’ signed this legislation to reduce current state and local government labor costs, in essence a shift of labor costs from public entities to the Colorado PERA pension system. This fact is well-documented in Colorado PERA publications, press reports from the time, public union publications and in testimony to committees hearing the bill. So, your argument about “collusion” really doesn’t fit the facts on the ground in Colorado. The Colorado Legislature was controlled by Republicans for 4-5 decades, nearly uninterrupted. We are “out West,” not public sector friendly, relatively weak unions. No opportunities for “collusion” here. Having encouraged PERA members to retire under a certain contract, the Colorado Legislature now wants to break that contract.

          • Posted by muni-man on April 12, 2013 at 1:32 pm

            For whom the bell tolls………. The reality isn’t gonna change, COLA or UNCOLA.


  3. Posted by Anonymous on April 11, 2013 at 1:51 pm

    When will you face reality the politicians are corrupts. Stop hoping they are going to going to do the right thing.


  4. Posted by Tough Love on April 11, 2013 at 9:25 pm

    John, Sorry for another off topic question, but I just saw the following statement:

    “A retired school admin I know getting $100k+ pension admitted it’s a scam on taxpayers yet gamed it so she can pass half her pension to her child for her child’s life.”

    in a comment attached to THIS link …

    I’m somewhat pension-smart, and survivorship pensions are “supposed” to be equivalent in value to the employee’s single life annuity. In practice, this equality isn’t perfect, but at least in Private Sector Plans, some controls are put in place to prevent abuse. For example, in Private Sector Plans no adjustment is generally made to the otherwise calculated “equality” if the survivorship spouse is not more than 5 years younger than the employee, but if if MORE than 5 years younger, the actual age of the spouse is used in the equivalence calculation.

    The comment above suggests that the employee’s 50% pension survivor is her child and from the wording (and the fact that there is no mention of a significant reduction from the otherwise payable single life annuity) it suggests that there wasn’t a proper “equivalence” calculation for a survivor so young. I haven’t heard of this in NJ. Have you heard of this being allowed and do you know how common it is ?

    My point of course is that (if allowed) it’s just another of the many many ways Public Sector Unions and our elected officials screw the taxpayers unfairly. While I wouldn’t expect many elected officials to catch the financial implication of allowing a young child to be a survivor on a retired employee’s pension, I would expect that somewhere the Plans actuary mentioned that allowing this is both unusual, costly, and opens a WIDE door for abuse.


    • Based on NJ PERS handbook language (below) it looks like they adjust for the younger age. What I haven’t seen in the private sector is the adjusting payouts back to the LA benefit if your beneficiary dies, if I’m reading the paragraph below right.

      Options A, B, C, and D pay a monthly allowance to a beneficiary upon your death for the lifetime of that beneficiary. Under any of these options, once your retirement has become due and payable, you cannot change the beneficiary, regardless of the circum- stances. If your designated beneficiary dies before you, your monthly allowance increases to the Maximum Option amount. Your age and the age of the beneficiary deter- mine your monthly allowance — the younger the beneficiary, the more your pension is reduced to account for the beneficiary’s longer life expectancy. Should you and your benefici- ary die before all your accumulated pension contributions plus interest have been distrib- uted in the form of a monthly allowance, the remainder will be paid to your estate.


      • Posted by Tough Love on April 12, 2013 at 12:31 am

        John, Thanks for providing the NJ Plan details. Looks like there are 2 differences from the practice common in Private Sector Plans; (1) the bump-up to the Single LA if the spouse dies first, and (2) the automatic refund (of the employee contributions with interest at some unstated rate) if both the ee and survivor die before the return of .ee contributions (with interest).

        Of course actuarially, both features can be priced into the calculation to maintain actuarial equivalency with the single LA , but are they … or are one or both provided for free ?

        Considering how small a share of total Plan costs are paid for by the employees (10-20% ?), I doubt # (2) above would have much of an incremental cost unless the interest rate applied to the ee contributions is very high. Which leads to the question of exactly what interest rate is used in that calc. God I hope we’re not being hoodwinked here too by use of the investment return assumption for this purpose. Do you know what rate is used ?

        The incremental cost of # (1) above likely varies by Plan … lower for the teacher’s Plan (with mostly Male spouses, only a small proportion of whom would outlive their wives anyway) and higher for the Police Officer’s Plan (with mostly female spouses)


  5. Posted by eatingdogfood on April 11, 2013 at 11:24 pm

    If The Democrats Didn’t Give ” Sweetheart Deals ” To Your Public Service Union.
    Goon Employees To Get Reelected; You Would Have Plenty Of Money and The.
    Taxpayer would have Some Spare Change in His Pockets! Democratic Hustler
    Politicians + Corrupt Union Goons = BANKRUPTCY BABY! Time To Bring.
    RICO Conspiracy Charges Against The Hustler Corrupt Democrats and the.
    Criminal Unions!


  6. Posted by MJ on April 12, 2013 at 6:55 pm

    Al, you seem to be in disbelief that contracts cannot be altered, re-negotiated, changed, etc. In the real world, it happens every day. Your sordid logic seems to hinge on the fact that you have some type of contract, with the government no less, that can never be altered, changed, reformed under any circumstances regardless of what is going on in the real world aka the tanked economy, private sector losses, tax base losses, global markets, unemployment, recessions, really bad recessions, financial collapses, etc. when most in the private sector aka the real world lost value in their private IRAs, CDs, money markets, home values, despite saving responsibly for their retirements without planning to suck off of their employers for the rest of their lives. Yet, you still feel that you are entitled to a full ride of whatever you think it is you are entitled too despite all mentioned above. Face reality, you made a deal with the devil aka the government and now he wants his due and will stop at nothing to throw you and other publics under the bus if it saves their own a$$es. I agree with Muni, COLA or UNCOLA the fizz is gone. Get used to it and adjust accordingly just like all the rest of us had to do. Was nice while it lasted but now it has gone flat. Move on.


    • Posted by Tough Love on April 12, 2013 at 8:14 pm

      Well Stated MJ !


    • Posted by 4everunion on April 14, 2013 at 10:14 am

      “you seem to be in disbelief that contracts cannot be altered, re-negotiated, changed, etc. In the real world, it happens every day. Your sordid logic seems to hinge on the fact that you have some type of contract, with the government no less, that can never be altered, changed, reformed under any circumstances regardless of what is going on in the real world aka the tanked economy, private sector losses, tax base losses, global markets, unemployment, recessions, really bad recessions, financial collapses, etc.”

      Spoken like a true jackass…..So, under your delusional argument if you sold your house, car, stocks, etc but now the value went down due to any of the reasons you state, the person/corp who bought same should be able to come to you and say they want money back, want to renegotiate the deal, etc.

      But you do prove the old adage….Scratch a liberal, find a contradiction.


      • Posted by MJ on April 14, 2013 at 6:37 pm

        No, if I sold my house, investments, etc. I would have to expect that I could only sell for the what the market will bear and for what one is willing to pay. Doesn’t matter if I paid 300K for my house and now the market says it is only worth 200K. I would have to renegotiate with the banks, etc. and try to settle it. If I have a lease for 1000k a month and now business is down, I would have to re-negotiate the lease, cut back on employee salaries and benefits so that I can keep people working or I can walk away. The fact that you have to call names tells me that you have no knowledge of how things work in the real world only your little bubble that now is about to burst. If there is no money then I have to declare bankruptcy and let the courts settle it as is happening now. There is no money and you are a creditor, get in line and hope for the best.


        • Posted by Tough Love on April 14, 2013 at 7:38 pm

          MJ, Did you note his handle, 4everunion.

          Die-hard “union” members are often disillusion. 15 years ago, I recall one of those giant (15 foot high) inflatable Rats at a construction site. The local Laborers Union was picketing/protesting that the construction job was employing non-Union laborers. Out of curiosity (and remember this was 15 years ago), I asked what the fight was about. The head picketer said that the contractor wouldn’t hire Union laborers because he didn’t want to pay the Labor Union wage of $39/hr.

          I asked exactly what the Union workers do (thinking that perhaps there was a skilled element to what they do). After he said that they basically move stuff around and support the bricklayers, etc., I ask if such “labor” was really worth $39/hr.

          He didn’t respond verbally, just giving me the look of death …. I quickly decided it was time to go, said good luck, and departed.


    • Posted by Al Moncrief on April 14, 2013 at 10:48 am

      Hi MJ, I am not in disbelief that public pension contracts are occasionally altered. Municipalities can seek to alter these contracts in Chapter 9 bankruptcy (sometimes successfully.) States cannot file bankruptcy under federal law. I am addressing state contracts in Colorado . . . written, statutory contracts. The Colorado Legislature seeks a “drastic” alteration impacting “fully-vested” public pension rights, prior to significantly impacting “partially-vested” pension rights.”

      My logic seems to be rather commonplace rather than “sordid.” What makes logic “sordid”? Is “sordid logic” logic that one would rather not face?

      Yes, Colorado PERA members who are parties to this public pension contract expect that their contracts will be honored, and assert those contractual rights in court. I very much expect that the contractual rights of Colorado PERA members will be upheld in court (so far, they have been upheld by the Colorado Court of Appeals.)

      The most recent recession does not justify breach of public sector contracts. While the State of Colorado claims a financial need to break its contracts it is also currently (this session) giving away $142 million to cover local government pension obligations that are not the contractual obligation of the State of Colorado. While claiming financial hardship, the State of Colorado has an extra $1 billion in new revenue for the coming fiscal year. While claiming financial hardship Colorado is the 15th wealthiest state in the nation with the lowest per capita state tax burden in the nation. While claiming financial hardship the Colorado General Assembly is making $100 million grants of property tax relief. While claiming the need to retroactively take accrued benefits from Colorado PERA members, the Colorado Legislature has enacted prospective, legal pension reform (honors accrued benefits) for certain county-run public pension systems in the state (a double standard in regard to public pension contracts exists in Colorado law, see SB12-149.)

      We are “moving on.” We’re “moving on” to the Colorado Supreme Court!



      • Posted by Tough Love on April 14, 2013 at 7:52 pm

        Al, Unless you are completely self-interested ONLY in the Colorado reversal of the COLA issue, you should be more concerned about the FINAL outcome of the Stockton CA bankruptcy. If the Bond Insurers win their argument that Public Sector pensions (already VESTED ones, and even for those ALREADY retired) are NOT untouchable, we will be seeing a rapid increase in pension reductions ….. and the Taxpayers will finally get some eminently justifiable relief from the unjust and grossly excessive “contracts” granted by elected officials who betrayed their primary obligation to the Taxpayers (NOT the workers) by selling favorable vote on these excessive pensions n exchange for Public Sector Union campaign contributions and election support.


        • Posted by Al Moncrief on April 15, 2013 at 12:50 am

          Hey TL, as I noted above, municipalities are free to attempt to reduce public pension contractual obligations via Chapter 9. I’m not sure that it is worth the effort for most cities in the U.S. We see very few muni bankruptcies, and of course, state governments do not have access to any bankruptcy under federal law. Stockton’s problems were caused by their city council’s failed real estate speculation, not public pensions. We’ll see if they get to trim their CALPERS contributions. I’m telling you TL, it is just so much easier to support prospective, legal pension reform. One of these days we’ll have a beer together and I’ll flip you! Al


          • Posted by Tough Love on April 15, 2013 at 1:21 am

            Quoting …”Stockton’s problems were caused by their city council’s failed real estate speculation, not public pensions. ”

            Now wouldn’t you say that that’s quite a stretch. While the real estate drop crushed the incoming revenue (and I’ll agree was the proximate “trigger” for Stockton’s problems), their completely off-the-wall pension promises (have you read how their “pensionable compensation” was goosed?) locked in this fate at some point anyway. It just came a bit sooner.

  7. Posted by Jarred Kollar on May 10, 2016 at 12:54 am

    Savvy writing – I learned a lot from the details ! Does someone know if I might access a template NY NYC-COMPT-BLA-PD1-B example to fill in ?


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