For purposes of ERISA, a program for the
purchase of an annuity contract or the establishment of a custodial
account as described under IRC Section 403(b), pursuant to salary
reduction agreements or agreements to forgo an increase in salary and
which satisfies the requirements of treasury regulations under
Section 403(b), will not be considered “established or maintained by an
employer” as that term is used in the definition of the terms “employee
pension benefit plan” and “pension plan” if:
1. Participation is
completely voluntary for employees;
2. All rights under the
annuity contract or custodial account are enforceable solely by the
employee, by a beneficiary of such employee, or any authorized
representative of such employee or beneficiary;
3. The sole involvement
of the employer is limited to any of the following:
a. permitting annuity
contractors to publicize their products to employees,
b. requesting
information concerning proposed funding media, products, or annuity
contractors,
c. summarizing or
otherwise compiling the information provided with respect to the proposed
funding media or products that are made available, or the annuity
contractors whose services are provided, in order to facilitate review and
analysis by the employees,
d. collecting annuity or
custodial account considerations as required by salary reduction
agreements or by agreements to forgo salary increases, remitting such
considerations to annuity contractors, and maintaining records of such
considerations,
e. holding in the
employer’s name one or more group annuity contracts covering its
employees, and
f. limiting the funding
media or products available to employees, or the annuity contractors who
may approach employees, to a number and selection that is designed to
afford employees a reasonable choice in light of all relevant
circumstances; and
4. The employer receives
no direct or indirect consideration or compensation in cash or otherwise
other than reasonable compensation to cover expenses properly and actually
incurred by the employer
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