PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend section 356.3 of Title 2 NYCRR.
Statutory authority:
Retirement and Social Security Law, sections 11 and 311
Subject:
Eligible rollover distributions.
Purpose:
To conform the current regulation with the provisions of the Federal pension Protection Act of 2006.
Text of proposed rule:
PART 356. NEW ROLLOVER AND WITHHOLDING RULES PURSUANT TO THE UNEMPLOYMENT COMPENSATION AMENDMENTS OF 1992 AND THE PENSION PROTECTION ACT OF 2006
* Section 356.3.* Definitions.
(a) Eligible rollover distribution. An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of 10 years or more; any distribution to the extent such distribution is required under section 401(a)(9) of the Internal Revenue Code; and the portion of any distribution that is not includible in gross income; and any other distribution(s) that is reasonably expected to total less than $200.00 during a year (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an eligible plan if the plan provides for separate accounting for amounts so transferred (including interest thereon) including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
(b) Eligible retirement plan. An eligible retirement plan is an individual retirement account described in section 408(a) of the Internal Revenue Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code, an annuity plan described in section 403(a) of the Internal Revenue Code, an annuity contract described in section 403(b) of the Internal Revenue Code, an eligible plan under section 457(b) of the Internal Revenue Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan, effective January 1, 2008, a Roth IRA subject to the limitations set forth in section 408A of the Internal Revenue Code, or a qualified trust described in section 401(a) of the Internal Revenue Code, that accepts the distributee's eligible rollover distribution. [However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity.]
(c) Distributee. A distributee includes a member or former member. In addition, the member's or former member's surviving spouse and the member's or former member's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Internal Revenue Code, are distributees with regard to the interest of the spouse or former spouse. Effective April 1, 2010, a distributee also includes the member's non-spouse designated beneficiary. In the case of a non-spouse beneficiary, the direct rollover may be made only to an individual retirement account or annuity described in section 480(a) or section 408(b) of the Internal Revenue Code ("IRA"), that is established on behalf of the designated beneficiary and that will be treated as an inherited IRA pursuant to the provisions of section 402(c)(11) of the Internal Revenue Code, as added by the Pension Protection Act of 2006.
(d) Direct rollover. A direct rollover is a payment by the New York State and Local Retirement Systems to an eligible retirement plan specified by the distributee.
Text of proposed rule and any required statements and analyses may be obtained from:
Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany, NY 12236, (518) 473-4146, email: jelacqua@osc.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
This is a consensus rulemaking proposed for the sole purpose of conforming the existing text of Section 356.3 of Title 2 of NYCRR to the requirements of the Federal Pension Protection Act of 2006. These technical amendments relate to eligible rollover distributions and it has been determined that no person is likely to object to the adoption of the rule as written.
