ENROLLED
H. B. 2765
(By Delegates Pethtel, Givens, Canterbury,
Ennis, Duke, Guthrie and D. Poling)
[Passed March 8, 2011; in effect from passage.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5-10D-10, relating
to the retirement plans administered by the West Virginia
Consolidated Public Retirement Board, and ensuring the
continued qualification of the plans under federal tax laws by
adopting provisions required by Sections 104(a) and 105(b) of
the Heroes Earnings Assistance and Relief Tax Act of 2008
(P.L. 110-245) requiring the plans to provide certain death
benefits to survivors of the plans' members or participants
who die while performing qualified military service and
governing the treatment of differential wage payments made to
the plans' members or participants.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section §5-10D-10, to read as follows:
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-10. Death benefits for participants or members who die while performing qualified military service;
treatment of differential wage payments.
(a) Death benefits. In the case of a death occurring on or
after January 1, 2007, if a participant or member of any plan
administered by the board dies while performing qualified military
service (as defined in Section 414(u) of the Internal Revenue
Code), the survivors of the participant or member are entitled to
any additional benefits (other than benefit accruals relating to
the period of qualified military service) provided under the plan
as if the participant or member had resumed and then terminated
employment on account of death, to the extent required by Section
401(a)(37) of the Internal Revenue Code:
Provided, That the death
of the participant or member shall not be considered to be by
reason of injury, illness or disease resulting from an occupational
risk or hazard inherent in or peculiar to the service required of
the participant or member, or as having occurred in the performance
of his or her duties as a member, or as a result of any service-
related illness or injury.
(b) Differential wage payments. For years beginning on or
after December 31, 2008, if a participant or member of any plan
administered by the board is receiving a differential wage payment
(as defined by Section 3401(h)(2) of the Internal Revenue Code),
then for purposes of applying the Internal Revenue Code to the
plan, all of the following shall apply: (i) The participant or member shall be treated as an employee of the employer making the
payment; and (ii) the differential wage payment shall be treated as
compensation of the participant or member for purposes of applying
the Internal Revenue Code (but not for purposes of determining
contributions and benefits under the plan, unless the plan terms
explicitly so provide); (iii) the plan shall not be treated as
failing to meet the requirements of any provision described in
Section 414(u)(1)(C) of the Internal Revenue Code by reason of any
contribution or benefit which is based on the differential wage
payment.
(c) Nondiscrimination. Subsection (b)(iii) applies only if
all employees of the employer performing service in the uniformed
services described in Section 3401(h)(2)(A) of the Internal Revenue
Code are entitled to receive differential wage payments (as defined
in Section 3401(h)(2) of the Internal Revenue Code) on reasonably
equivalent terms and, if eligible to participate in a retirement
plan maintained by the employer, to make contributions based on the
payments on reasonably equivalent terms.