ENROLLED
Senate Bill No. 4003
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
____________
[Passed November 19, 2009; in effect from passage.]
____________
AN ACT to amend and reenact §5-10-2, §5-10-22, §5-10-22f,
§5-10-27a, §5-10-27b, §5-10-27c, §5-10-27d and §5-10-29 of the
Code of West Virginia, 1931, as amended; to amend and reenact
§7-14D-2, §7-14D-3, §7-14D-9, §7-14D-9a, §7-14D-9b, §7-14D-9c,
§7-14D-9d and §7-14D-11 of said code; to amend and reenact
§15-2-25b, §15-2-26, §15-2-27, §15-2-37, §15-2-44, §15-2-45
and §15-2-46 of said code; to amend and reenact §15-2A-2,
§15-2A-3, §15-2A-6, §15-2A-6a, §15-2A-6b, §15-2A-6c, §15-2A-6d
and §15-2A-8 of said code; to amend and reenact §16-5V-2,
§16-5V-4, §16-5V-12, §16-5V-13, §16-5V-14, §16-5V-14a,
§16-5V-16 and §16-5V-18 of said code; to amend and reenact
§18-7A-3, §18-7A-14, §18-7A-26, §18-7A-26r, §18-7A-28a,
§18-7A-28b, §18-7A-28c and §18-7A-28d of said code; to amend
and reenact §18-7B-2, §18-7B-12a, §18-7B-13 and §18-7B-13b of
said code; and to amend and reenact §51-9-1a, §51-9-12a, §51-9-12b and §51-9-12c of said code, all relating to the
retirement systems administered by the West Virginia
Consolidated Public Retirement Board and ensuring the plans'
qualification under federal tax laws; clarifying the
definitions of the Public Employees Retirement System (PERS);
revising the PERS retirement annuity provisions and the
minimum benefits provisions to comport with the Internal
Revenue Service regulations on maximum benefits; clarifying
the PERS federal law maximum benefit limitations and federal
law minimum required distributions provisions to comply with
the Internal Revenue Service regulations on maximum benefits;
revising the PERS rollover provisions to comport with the
direct rollover requirements, including those made by Section
108(f) of the Worker, Retiree and Employer Recovery Act of
2008 (P.L. 110-458), Sections 822, 824 and 829 of the Pension
Protection Act of 2006 (P.L. 109-280) and Section 641(d) of
the Economic Growth and Tax Relief Reconciliation Act of 2001
(P.L. 107-16); adding clarifying language to ensure that
forfeitures under PERS may not be applied to increase a
member's benefits; clarifying the definitions of the Deputy
Sheriff Retirement System (DSRS) and adding the definition of
"qualified public safety employee" to comply with Treasury
Regulation §1.401(a)-1(b)(2)(v); revising the DSRS retirement
annuity commencement of benefits provisions; clarifying the
DSRS federal law maximum benefit limitations and federal law minimum required distributions provisions to comply with the
Internal Revenue Service regulations on maximum benefits;
revising the DSRS rollover provisions to comport with the
direct rollover requirements, including those made by Section
108(f) of the Worker, Retiree and Employer Recovery Act of
2008 (P.L. 110-458), Sections 822, 824 and 829 of the Pension
Protection Act of 2006 (P.L. 109-280) and Section 641(d) of
the Economic Growth and Tax Relief Reconciliation Act of 2001
(P.L. 107-16); providing that the DSRS plan will operate
under the safe harbor available for plans relating to the
"normal retirement age" requirements when applicable to
governmental plans; clarifying the definitions of the Death,
Disability and Retirement System (State Police Plan A) and
adding the definition of "qualified public safety employee" to
comply with Treasury Regulation §1.401(a)-1(b)(2)(v); revising
the State Police Plan A deferred and regular retirement
annuity to make subject to Section 415 limitations; clarifying
the State Police Plan A federal law maximum benefit
limitations and federal law minimum required distributions
provisions to comply with the Internal Revenue Service
regulations on maximum benefits; revising the State Police
Plan A rollover provisions to comport with the direct rollover
requirements, including those made by Section 108(f) of the
Worker, Retiree and Employer Recovery Act of 2008 (P.L. 110-
458), Sections 822, 824 and 829 of the Pension Protection Act of 2006 (P.L. 109-280) and Section 641(d) of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-
16); providing that the State Police Plan A plan will operate
under the safe harbor available for plans relating to the
"normal retirement age" requirements when applicable to
governmental plans; clarifying the definitions of the West
Virginia State Police Retirement System (State Police Plan B)
and adding the definition of "qualified public safety
employee" to comply with Treasury Regulation §1.401(a)-
1(b)(2)(v); revising the State Police Plan B deferred and
regular retirement annuity to make subject to Section 415
limitations; clarifying the State Police Plan B federal law
maximum benefit limitations and federal law minimum required
distributions provisions to comply with the Internal Revenue
Service regulations on maximum benefits; revising the State
Police Plan B rollover provisions to comport with the direct
rollover requirements, including those made by Section 108(f)
of the Worker, Retiree and Employer Recovery Act of 2008 (P.L.
110-458), Sections 822, 824 and 829 of the Pension Protection
Act of 2006 (P.L. 109-280) and Section 641(d) of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-
16); providing that the State Police Plan B plan will operate
under the safe harbor available for plans relating to the
"normal retirement age" requirements when applicable to
governmental plans; clarifying the definitions of the Emergency Medical Services Retirement System (EMSRS) and
adding the definition of "qualified public safety employee" to
comply with Treasury Regulation §1.401(a)-1(b)(2)(v); revising
the EMSRS regular retirement annuity to make subject to
Section 415 limitations; clarifying the EMSRS federal law
maximum benefit limitations and federal law minimum required
distributions provisions to comply with the Internal Revenue
Service regulations on maximum benefits; revising the EMSRS
rollover provisions to comport with the direct rollover
requirements, including those made by Section 108(f) of the
Worker, Retiree and Employer Recovery Act of 2008 (P.L. 110-
458), Sections 822, 824 and 829 of the Pension Protection Act
of 2006 (P.L. 109-280) and Section 641(d) of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-
16); providing that the EMSRS plan will operate under the safe
harbor available for plans relating to the "normal retirement
age" requirements when applicable to governmental plans;
clarifying the definitions of the Teachers Retirement System
(TRS); adding clarifying language to ensure that forfeitures
under TRS may not be applied to increase a member's benefits;
revising the TRS retirement annuity provisions and the minimum
benefits provisions to comport with the Internal Revenue
Service regulations on maximum benefits; clarifying the TRS
federal law maximum benefit limitations and federal law
minimum required distributions provisions to comply with the Internal Revenue Service regulations on maximum benefits;
revising the TRS rollover provisions to comport with the
direct rollover requirements, including those made by Section
108(f) of the Worker, Retiree and Employer Recovery Act of
2008 (P.L. 110-458), Sections 822, 824 and 829 of the Pension
Protection Act of 2006 (P.L. 109-280) and Section 641(d) of
the Economic Growth and Tax Relief Reconciliation Act of 2001
(P.L. 107-16); clarifying the definitions of the Teachers
Defined Contribution Retirement System (TDC); revising the TDC
retirement annuity provisions and the minimum benefits
provisions to comport with the Internal Revenue Service
regulations on maximum benefits; clarifying the TDC federal
law maximum benefit limitations and federal law minimum
required distributions provisions to comply with the Internal
Revenue Service regulations on maximum benefits; revising the
TDC rollover provisions to comport with the direct rollover
requirements, including those made by Section 108(f) of the
Worker, Retiree and Employer Recovery Act of 2008 (P.L. 110-
458), Sections 822, 824 and 829 of the Pension Protection Act
of 2006 (P.L. 109-280) and Section 641(d) of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (P.L. 107-
16); clarifying the definitions of the Judges' Retirement
System (JRS); clarifying the JRS federal law maximum benefit
limitations and federal law minimum required distributions
provisions to comply with the Internal Revenue Service regulations on maximum benefits; and revising the JRS rollover
provisions to comport with the direct rollover requirements,
including those made by Section 108(f) of the Worker, Retiree
and Employer Recovery Act of 2008 (P.L. 110-458), Sections
822, 824 and 829 of the Pension Protection Act of 2006 (P.L.
109-280) and Section 641(d) of the Economic Growth and Tax
Relief Reconciliation Act of 2001 (P.L. 107-16).
Be it enacted by the Legislature of West Virginia:
That §5-10-2, §5-10-22, §5-10-22f, §5-10-27a, §5-10-27b,
§5-10-27c, §5-10-27d and §5-10-29 of the Code of West Virginia,
1931, as amended, be amended and reenacted; that §7-14D-2,
§7-14D-3, §7-14D-9, §7-14D-9a, §7-14D-9b, §7-14D-9c, §7-14D-9d and
§7-14D-11 of said code be amended and reenacted; that §15-2-25b,
§15-2-26, §15-2-27, §15-2-37, §15-2-44, §15-2-45 and §15-2-46 of
said code be amended and reenacted; that §15-2A-2, §15-2A-3,
§15-2A-6, §15-2A-6a, §15-2A-6b, §15-2A-6c, §15-2A-6d and §15-2A-8
of said code be amended and reenacted; that §16-5V-2, §16-5V-4,
§16-5V-12, §16-5V-13, §16-5V-14, §16-5V-14a, §16-5V-16 and
§16-5V-18 of said code be amended and reenacted; that §18-7A-3,
§18-7A-14, §18-7A-26, §18-7A-26r, §18-7A-28a, §18-7A-28b,
§18-7A-28c and §18-7A-28d of said code be amended and reenacted;
that §18-7B-2, §18-7B-12a, §18-7B-13 and §18-7B-13b of said code be
amended and reenacted; and that §51-9-1a, §51-9-12a, §51-9-12b and
§51-9-12c of said code be amended and reenacted, all to read as
follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the
context, the following words and phrases as used in this article,
have the following meanings:
(1) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the Board of Trustees from time to time:
Provided, That
when used in the context of compliance with the federal maximum
benefit requirements of Section 415 of the Internal Revenue Code,
"actuarial equivalent" shall be computed using the mortality tables
and interest rates required to comply with those requirements;
(4) "Annuity" means an annual amount payable by the retirement
system throughout the life of a person. All annuities shall be
paid in equal monthly installments, rounding to the upper cent for
any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the Board of
Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(7) "Board of Trustees" or "board" means the Board of Trustees
of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by the
member to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior
service credit, military service credit, workers' compensation
service credit and contributing service credit standing to his or
her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia National Guard whose compensation, in
whole or in part, is paid by the federal government: Provided, That
an employee of the Legislature whose term of employment is
otherwise classified as temporary and who is employed to perform
services required by the Legislature for its regular sessions or
during the interim between regular sessions and who has been or is
employed during regular sessions or during the interim between
regular sessions in seven or more consecutive calendar years, as
certified by the Clerk of the House in which the employee served,
is an employee, any provision to the contrary in this article
notwithstanding, and is entitled to credited service in accordance
with provisions of section fourteen, article ten, chapter five of
this code and: Provided, however, That members of the legislative
body of any political subdivision and judges of the State Court of
Claims are employees receiving one year of service credit for each
one-year term served and pro rated service credit for any partial
term served, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee within the meaning of this article, the board of trustees shall
decide the question;
(12) "Employer error" means an omission, misrepresentation, or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that
has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error.
(13) "Final average salary" means either of the following:
Provided, That salaries for determining benefits during any
determination period may not exceed the maximum compensation
allowed as adjusted for cost of living in accordance with section
seven, article ten-d, chapter five of this code and Section
401(a)(17) of the Internal Revenue Code:
(A) The average of the highest annual compensation received by
a member (including a member of the Legislature who participates in
the retirement system in the year 1971 or thereafter), during any
period of three consecutive years of credited service contained
within the member's ten years of credited service immediately
preceding the date his or her employment with a participating
public employer last terminated; or (B) if the member has less than
five years of credited service, the average of the annual rate of compensation received by the member during his or her total years
of credited service; and in determining the annual compensation,
under either paragraph (A) or (B) of this subdivision, of a member
of the Legislature who participates in the retirement system as a
member of the Legislature in the year 1971, or in any year
thereafter, his or her actual legislative compensation (the total
of all compensation paid under sections two, three, four and five,
article two-a, chapter four of this code), in the year 1971, or in
any year thereafter, plus any other compensation he or she receives
in any year from any other participating public employer including
the State of West Virginia, without any multiple in excess of one
times his or her actual legislative compensation and other
compensation, shall be used: Provided, That "final average salary"
for any former member of the Legislature or for any member of the
Legislature in the year 1971, who, in either event, was a member of
the Legislature on November 30, 1968, or November 30, 1969, or
November 30, 1970, or on November 30 in any one or more of those
three years and who participated in the retirement system as a
member of the Legislature in any one or more of those years means:
(i) Either (notwithstanding the provisions of this subdivision
preceding this proviso) $1,500 multiplied by eight, plus the
highest other compensation the former member or member received in
any one of the three years from any other participating public
employer including the State of West Virginia; or (ii) "final
average salary" determined in accordance with paragraph (A) or (B) of this subdivision, whichever computation produces the higher
final average salary (and in determining the annual compensation
under subparagraph (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of
$1,500 multiplied by eight, and the legislative compensation of the
member shall be computed on the basis set forth in the provisions
of this subdivision immediately preceding this proviso or on the
basis of $1,500 multiplied by eight, whichever computation as to
the member produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, codified at Title 26 of the United States
Code;
(15) "Limited credited service" means service by employees of
the West Virginia Educational Broadcasting Authority, in the
employment of West Virginia University, during a period when the
employee made contributions to another retirement system, as
required by West Virginia University, and did not make
contributions to the Public Employees Retirement System: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(16) "Member" means any person who has accumulated
contributions standing to his or her credit in the members' deposit
fund;
(17) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
Supreme Court of Appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section
forty-two of this article;
(19) "Political subdivision" means the State of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in the
Public Employees Retirement System before July 1, 1997, is
considered a political subdivision solely for the purpose of
permitting those employees who are members of the Public Employees
Retirement System to remain members and continue to participate in
the retirement system at their option after July 1, 1997: Provided,
however, That the Regional Community Policing Institute which participated in the Public Employees Retirement System before July
1, 2000, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the Public
Employees Retirement System to remain members and continue to
participate in the Public Employees Retirement System after July 1,
2000;
(20) "Prior service" means service rendered prior to July 1,
1961, to the extent credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the Board of Trustees adopts
from time to time;
(22) "Required beginning date" means April 1 of the calendar
year following the later of: (A) The calendar year in which the
member attains age seventy and one-half years of age; or (B) the
calendar year in which a member who has attained the age seventy
and one-half years of age and who ceases providing service covered
under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity
payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ
of a participating public employer and the commencement of an
annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia
Public Employees Retirement System created and established by this
article;
(26) "Retroactive service" means: (1) Service between July 1,
1961, and the date an employer decides to become a participating
member of the Public Employees Retirement System; (2) service prior
to July 1, 1961, for which the employee is not entitled to prior
service at no cost in accordance with 162 CSR 5.13; and (3) service
of any member of a legislative body or employees of the State
Legislature whose term of employment is otherwise classified as
temporary for which the employee is eligible, but for which the
employee did not elect to participate at that time;
(27) "Service" means personal service rendered to a
participating public employer by an employee of a participating
public employer; and
(28) "State" means the State of West Virginia.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article,
he or she shall receive a straight life annuity equal to one and
five-tenths percent of his or her final average salary multiplied
by the number of years, and fraction of a year, of his or her
credited service in force at the time of his or her retirement,
subject to reduction if necessary to comply with the maximum
benefit provisions of Section 415 of the Internal Revenue Code and
section twenty-seven-a of this article: Provided, That the final
average salary used in this calculation does not include any lump
sum payment for unused, accrued leave of any kind or character.
The credited service used for this calculation may not include any period of limited credited service: Provided, however, That after
March 1, 1970, all members retired and all members retiring shall
receive a straight life annuity equal to two percent of his or her
final average salary multiplied by the number of years, and
fraction of a year, of his or her credited service, exclusive of
limited credited service in force at the time of his or her
retirement, subject to reduction if necessary to comply with the
maximum benefit provisions of Section 415 of the Internal Revenue
Code and section twenty-seven-a of this article. In either event,
upon his or her retirement he or she has the right to elect an
option provided in section twenty-four of this article. All
annuity payments shall commence effective the first day of the
month following the month in which a member retires or a member
dies leaving a beneficiary entitled to benefits and shall continue
to the end of the month in which the retirant or beneficiary dies,
and the annuity payments may not be prorated for any portion of a
month in which a member retires or retirant or beneficiary dies.
Any member receiving an annuity based in part upon limited credited
service is not eligible for the supplements provided in sections
twenty-two-a through twenty-two-d, inclusive, of this article.
(b) The annuity of any member of the Legislature who
participates in the retirement system as a member of the
Legislature and who retires under this article or of any former
member of the Legislature who has retired under this article
(including any former member of the Legislature who has retired under this article and whose annuity was readjusted as of March 1,
1970, under the former provisions of this section) shall be
increased from time to time during the period of his or her
retirement when and if the legislative compensation paid under
section two, article two-a, chapter four of this code, to a member
of the Legislature shall be increased to the point where a higher
annuity would be payable to the retirant if he or she were retiring
as of the effective date of the latest increase in legislative
compensation, but on the basis of his or her years of credited
service to the date of his or her actual retirement.
§5-10-22f. Minimum benefit for certain retirants; legislative
declaration; state interest and public purpose.
The Legislature hereby finds and declares that an important
state interest exists in providing a minimum retirement annuity for
certain retirants (or their beneficiaries) who are credited with
twenty or more years of credited service; that such program
constitutes a public purpose; and that the exclusions of credited
service while an elected public official or while a temporary
legislative employee are reasonable and equitable exclusions for
purposes of determining eligibility for such minimum benefits. For
purposes of this section:
(1) "Elected public official" means any member of the
Legislature or any member of the legislative body of any political
subdivision; and
(2) "Temporary legislative employee" means any employee of the
Clerk of the House of Delegates, the Clerk of the Senate, the
Legislature or a committee thereof whose employment is classified
as temporary and who is employed to perform services required by
the Clerk of the House of Delegates, the Clerk of the Senate, the
Legislature or a committee thereof, as the case may be, for regular
sessions, extraordinary sessions and/or interim meetings of the
Legislature.
If the retirement annuity of a retirant (or, if applicable,
his or her beneficiary) with at least twenty years of credited
service as of the effective date of this section is less than $500
per month (including any supplemental benefits or incentives
provided by this article), then the monthly retirement benefit for
any such retired member (or if applicable, his or her beneficiary)
shall be increased to $500 per month: Provided, That any year of
credited service while an elected public official or a temporary
legislative employee shall not be taken into account for purposes
of this section.
The payment of any minimum benefit under this section shall be
in lieu of, and not in addition to, the payments of any retirement
benefit or supplemental benefit or incentives otherwise provided by
law: Provided, That the minimum benefit provided herein shall be
subject to any limitations thereon under Section 415 of the
Internal Revenue Code of 1986, as amended, and section twenty-
seven-a of this article.
Any minimum benefit conferred herein shall not be retroactive
to the time of retirement and shall apply only to members who have
retired prior to the effective date of this section, or, if
applicable, to beneficiaries receiving benefits under the
retirement system prior to the effective date.
§5-10-27a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and regulations promulgated thereunder to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 dollar limitation(s)"), so that the annual
benefit payable under this system to a member shall not exceed
those limitations. Any annual benefit payable under this system
shall be reduced or limited if necessary to an amount which does
not exceed those limitations. The extent to which any annuity or
other annual benefit payable under this retirement system shall be
reduced, as compared to the extent to which an annuity,
contributions or other benefits under any other defined benefit
plans or defined contribution plans required to be taken into
consideration under Section 415 of the Internal Revenue Code shall
be reduced,
shall be proportional on a percentage basis to the
reductions made in such other plans administered by the board and
required to be so taken into consideration under Section 415,
unless a disproportionate reduction is determined by the board to maximize the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members of any additional limitation on the annuities or
other annual benefit required by this section. For purposes of the
415 limitations, the "limitation year" shall be the calendar year.
The 415 limitations are incorporated herein by reference, except to
the extent the following provisions may modify the default
provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a
retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement
system shall in no event be greater than the limit applicable at
the annuity starting date, as increased in subsequent years
pursuant to Section 415(d) of the Internal Revenue Code and the
regulations thereunder.
(b) For purposes of this section, the "annual benefit" means
a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's
benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits, and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the
form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as
increased in subsequent years pursuant to Section 415(d) of the
Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits
paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not
below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the
greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five percent
interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or
any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subsection (c) of this section. In this case, the
actuarially equivalent straight life annuity shall be determined as
follows: The actuarially equivalent straight life annuity is equal
to the greatest of: (1) The annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the interest rate specified in this retirement
system and the mortality table (or other tabular factor) specified
in this retirement system for adjusting benefits in the same form;
(2) the annual amount of the straight life annuity commencing at
the same annuity starting date that has the same actuarial present
value as the member's form of benefit, computed using a five and a
half percent interest rate assumption and the applicable mortality
table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue
Ruling 2001-62 or any subsequent Revenue Ruling modifying the
applicable provisions of Revenue Ruling 2001-62) for that annuity
starting date; and (3) the annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the applicable interest rate defined in Treasury
Regulation §1.417(e)-1(d)(3) and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality
table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-
62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in subdivisions (2) and (3) of this
subsection, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section
415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted
pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in subdivision (1) of
this subsection shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A
qualified participant for this purpose is a participant in a
defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into
account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a
full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in subdivision (1) of
this subsection shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for
benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement system (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal
Revenue Code and subsection (e) of this section) shall be reduced
by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in
the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(g) The application of the provisions of this section shall not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions,
regulations, and other published guidance relating to Section 415
of the Internal Revenue Code in effect as of the end of December
31, 2008, as described in Treasury Regulation §1.415(a)-1(g)(4).
If additional benefits are accrued for a member under this
retirement system after January 1, 2009, then the sum of the
benefits described under the first sentence of this subsection and
benefits accrued for a member after January 1, 2009, must satisfy
the requirements of Section 415, taking into account all applicable
requirements of the final 415 Treasury Regulations.
§5-10-27b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this code. This provision applies to
plan years beginning after December 31, 1986. Notwithstanding
anything in this code to the contrary, the payment of benefits
under this article shall be determined and made in accordance with
Section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder. For this purpose, the
following provisions apply:
(a) The payment of benefits under the retirement system to any
member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
regulations prescribed under Section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the
member and his or her beneficiary or over a period not extending
beyond the life expectancy of the member and his or her
beneficiary. Benefit payments under this section shall not be
delayed pending, or contingent upon, receipt of an application for
retirement from the member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system
will be distributed by December 31 of the calendar year containing
the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over a period certain not greater than the life expectancy of that
beneficiary, commencing on or before December 31 of the calendar
year immediately following the calendar year in which the member
died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§5-10-27c. Direct rollovers.
(a) Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this system, a distributee may
elect, at the time and in the manner prescribed by the board, to
have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a
direct rollover. For purposes of this section, the following
definitions apply:
(1) "Eligible rollover distribution" means 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 of the following: (i) 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 the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (ii) any distribution
to the extent the distribution is required under Section 401(a)(9)
of the Internal Revenue Code; (iii) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; and (iv) any hardship distribution described
in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For
distributions after December 31, 2001, 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 includable in gross income. However, this portion
may be paid only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Internal Revenue Code, or
(for taxable years beginning before January 1, 2007) to a qualified
trust which is part of a defined contribution plan described in
Section 401(a) or (for taxable years beginning after December 31,
2006) to a qualified trust or to an annuity contract described in
Section 403(a) or (b) of the Internal Revenue Code that agrees to
separately account for amounts transferred (including interest or earnings thereon), including separately accounting for the portion
of the distribution which is includable in gross income and the
portion of the distribution which is not so includable, or (for
taxable years beginning after December 31, 2007) to a Roth IRA
described in Section 408A of the Internal Revenue Code.
(2) "Eligible retirement plan" means 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 or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 1, 2001, an eligible retirement
plan also means an annuity contract described in Section 403(b) of
the Internal Revenue Code and 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 the plan from this
system. For distributions after December 31, 2007, an eligible
retirement plan also means a Roth IRA described in Section 408A of
the Internal Revenue Code: Provided, That in the case of an eligible rollover distribution after December 31, 2007, to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee'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 with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse. For distributions after December
31, 2007, "distributee" also includes a designated beneficiary
(other than a surviving spouse) as such term is defined in Section
402(c)(11) of the Internal Revenue Code.
(4) "Direct rollover" means a payment by the retirement system
to an eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other system administered by the
retirement board.
§5-10-27d. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) This section applies to rollovers and transfers as
specified in this section made on or after January 1, 2002. Notwithstanding any provision of this article to the contrary that
would otherwise prohibit or limit rollovers and plan transfers to
this system, the retirement system shall accept the following
rollovers and plan transfers on behalf of a member solely for the
purpose of purchasing permissive service credit, in whole or in
part, as otherwise provided in this article or for the repayment of
withdrawn or refunded contributions, in whole or in part, with
respect to a previous forfeiture of service credit as otherwise
provided in this article: (i) One or more rollovers within the
meaning of Section 408(d)(3) of the Internal Revenue Code from an
individual retirement account described in Section 408(a) of the
Internal Revenue Code or from an individual retirement annuity
described in Section 408(b) of the Internal Revenue Code; (ii) one
or more rollovers described in Section 402(c) of the Internal
Revenue Code from a retirement plan that is qualified under Section
401(a) of the Internal Revenue Code or from a plan described in
Section 403(b) of the Internal Revenue Code; (iii) one or more
rollovers described in Section 457(e)(16) of the Internal Revenue
Code from a governmental plan described in Section 457 of the
Internal Revenue Code; or (iv) direct trustee-to-trustee transfers
or rollovers from a plan that is qualified under Section 401(a) of
the Internal Revenue Code, from a plan described in Section 403(b)
of the Internal Revenue Code or from a governmental plan described
in Section 457 of the Internal Revenue Code: Provided, That any
rollovers or transfers pursuant to this section shall be accepted by the system only if made in cash or other asset permitted by the
board and only in accordance with policies, practices and
procedures established by the board from time to time. For
purposes of this article, the following definitions and limitations
apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of
service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code:
Provided, That no more than five years of "nonqualified service
credit", as defined in Section 415(n)(3)(C) of the Internal Revenue
Code, may be included in the permissive service credit allowed to
be purchased (other than by means of a rollover or plan transfer),
and no nonqualified service credit may be included in any such
purchase (other than by means of a rollover or plan transfer)
before the member has at least five years of participation in the
retirement system.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit
previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(3) Any contribution (other than by means of a rollover or
plan transfer) to purchase permissive service credit under any
provision of this article must satisfy the special limitation rules
described in Section 415(n) of the Internal Revenue Code and shall
be automatically reduced, limited or required to be paid over
multiple years if necessary to ensure such compliance. To the
extent any such purchased permissive service credit is qualified
military service within the meaning of Section 414(u) of the
Internal Revenue Code, the limitations of Section 415 of the
Internal Revenue Code shall be applied to such purchase as
described in Section 414(u)(1)(B) of the Internal Revenue Code.
(4) For purposes of Section 415(b) of the Internal Revenue
Code, the annual benefit attributable to any rollover contribution
accepted pursuant to this section shall be determined in accordance
with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if
any, of the annuity payments attributable to any rollover
contribution provided under the retirement system over the annual
benefit so determined shall be taken into account when applying the
accrued benefit limitations of Section 415(b) of the Internal
Revenue Code and section twenty-seven-a of this article.
(b) Nothing in this section shall be construed as permitting
rollovers or transfers into this system or any other system
administered by the retirement board other than as specified in
this section and no rollover or transfer shall be accepted into the
system in an amount greater than the amount required for the purchase of permissive service credit or repayment of withdrawn or
refunded contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or
refunded contributions except as otherwise permitted in this
article.
§5-10-29. Members' deposit fund; members' contributions;
forfeitures
.
(a) The members' deposit fund is hereby created. It shall be
the fund in which shall be accumulated, at regular interest, the
contributions deducted from the compensation of members, and from
which refunds of accumulated contributions shall be paid and
transfers made as provided in this section.
(b) The contributions of a member to the retirement system
(including any member of the Legislature, except as otherwise
provided in subsection (g) of this section) shall be a sum of not
less than three and five-tenths percent of his or her annual
compensations but not more than four and five-tenths percent of his
or her
annual compensations, as determined by the board of
trustees. The said contributions shall be made notwithstanding
that the minimum salary or wages provided by law for any member
shall be thereby changed. Each member shall be deemed to consent
and agree to the deductions made and provided for herein. Payment
of a member's compensation less said deductions shall be a full and
complete discharge and acquittance of all claims and demands whatsoever for services rendered by him or her
to a participating
public employer, except as to benefits provided by this article.
(c) The officer or officers responsible for making up the
payrolls for payroll units of the state government and for each of
the other participating public employers shall cause the
contributions, provided in subsection (b) of this section, to be
deducted from the compensations of each member in the employ of the
participating public employer, on each and every payroll, for each
and every payroll period, from the date the member enters the
retirement system to the date his or her membership terminates.
When deducted, each of said amounts shall be paid by the
participating public employer to the retirement system; said
payments to be made in such manner and form, and in such frequency,
and shall be accompanied by such supporting data, as the board of
trustees shall from time to time prescribe. When paid to the
retirement system, each of said amounts shall be credited to the
members' deposit fund account of the member from whose
compensations said contributions were deducted.
(d) In addition to the contributions deducted from the
compensations of a member, as heretofore provided, a member shall
deposit in the members' deposit fund, by a single contribution or
by an increased rate of contribution as approved by the board of
trustees, the amounts he or she
may have withdrawn therefrom and
not repaid thereto, together with regular interest from the date of
withdrawal to the date of repayment. In no case shall a member be given credit for service rendered prior to the date he or she
withdrew his or her
contributions or accumulated contributions, as
the case may be, until he or she
returns to the members' deposit
fund all amounts due the said fund by him or her
.
(e) Upon the retirement of a member, or if a survivor annuity
becomes payable on account of his or her
death, in either event his
or her
accumulated contributions standing to his or her
credit in
the members' deposit fund shall be transferred to the retirement
reserve fund.
(f) In the event an employee's membership in the retirement
system terminates and no annuity becomes or will become payable on
his or her
account, any accumulated contributions standing to his
or her
credit in the members' deposit fund, unclaimed by the said
employee, or his or her
legal representative, within three years
from and after the date his or her
membership terminated, shall be
transferred to the income fund.
(g) Any member of the Legislature who is a member of the
retirement system and with respect to whom the term "final average
salary" includes a multiple of eight, pursuant to the provisions of
subdivision (15), section two of this article, shall contribute to
the retirement system on the basis of his or her
legislative
compensation the sum of $540 each year he or she
participates in
the retirement system as a member of the Legislature.
(h) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-2. Definitions.
As used in this article, unless a federal law or regulation or
the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and
one-quarter percent of the member's final average salary multiplied
by the member's years of credited service. A member's accrued
benefit may not exceed the limits of Section 415 of the Internal
Revenue Code and is subject to the provisions of section nine-a of
this article.
(b) "Accumulated contributions" means the sum of all amounts
deducted from the compensation of a member, or paid on his or her
behalf pursuant to article ten-c, chapter five of this code, either
pursuant to section seven of this article or section twenty-nine,
article ten, chapter five of this code as a result of covered
employment together with regular interest on the deducted amounts.
(c) "Active member" means a member who is active and
contributing to the plan.
(d) "Active military duty" means full-time active duty with
any branch of the armed forces of the United States, including
service with the National Guard or reserve military forces when the member has been called to active full-time duty and has received no
compensation during the period of that duty from any board or
employer other than the armed forces.
(e) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of the mortality table and interest rates
as set and adopted by the retirement board in accordance with the
provisions of this article: Provided, That when used in the context
of compliance with the federal maximum benefit requirements of
Section 415 of the Internal Revenue Code, "actuarial equivalent"
shall be computed using the mortality tables and interest rates
required to comply with those requirements.
(f) "Annual compensation" means the wages paid to the member
during covered employment within the meaning of Section 3401(a) of
the Internal Revenue Code, but determined without regard to any
rules that limit the remuneration included in wages based upon the
nature or location of employment or services performed during the
plan year plus amounts excluded under Section 414(h)(2) of the
Internal Revenue Code and less reimbursements or other expense
allowances, cash or noncash fringe benefits or both, deferred
compensation and welfare benefits. Annual compensation for
determining benefits during any determination period may not exceed
the maximum compensation allowed as adjusted for cost of living in
accordance with section seven, article ten-d, chapter five of this
code and Section 401(a)(17) of the Internal Revenue Code.
(g) "Annual leave service" means accrued annual leave.
(h) "Annuity starting date" means the first day of the first
calendar month following receipt of the retirement application by
the board or the required beginning date, if earlier: Provided,
That the member has ceased covered employment and reached early or
normal retirement age.
(i) "Base salary" means a member's cash compensation exclusive
of overtime from covered employment during the last twelve months
of employment. Until a member has worked twelve months, annualized
base salary is used as base salary.
(j) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(k) "County commission" has the meaning ascribed to it in
section one, article one, chapter seven of this code.
(l) "Covered employment" means either: (1) Employment as a
deputy sheriff and the active performance of the duties required of
a deputy sheriff; or (2) the period of time which active duties are
not performed but disability benefits are received under section
fourteen or fifteen of this article; or (3) concurrent employment
by a deputy sheriff in a job or jobs in addition to his or her
employment as a deputy sheriff where the secondary employment
requires the deputy sheriff to be a member of another retirement
system which is administered by the Consolidated Public Retirement
Board pursuant to article ten-d, chapter five of this code:
Provided, That the deputy sheriff contributes to the fund created in section six of this article the amount specified as the deputy
sheriff's contribution in section seven of this article.
(m) "Credited service" means the sum of a member's years of
service, active military duty, disability service and annual leave
service.
(n) "Deputy sheriff" means an individual employed as a county
law-enforcement deputy sheriff in this state and as defined by
section two, article fourteen of this chapter.
(o) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living
with the member while the member was an adopting parent during any
period of probation; or
(D) A stepchild of the member residing in the member's
household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited
college or university;
(B) Who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death; and
(C) Whose relationship with the member is described in
subparagraph (A), (B) or (C), paragraph (1) of this subdivision.
(p) "Dependent parent" means the father or mother of the
member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death.
(q) "Disability service" means service credit received by a
member, expressed in whole years, fractions thereof or both, equal
to one half of the whole years, fractions thereof or both, during
which time a member receives disability benefits under section
fourteen or fifteen of this article.
(r) "Early retirement age" means age forty or over and
completion of twenty years of service.
(s) "Employer error" means an omission, misrepresentation, or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that
has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error.
(t) "Effective date" means July 1, 1998.
(u) "Final average salary" means the average of the highest
annual compensation received for covered employment by the member
during any five consecutive plan years within the member's last ten
years of service. If the member did not have annual compensation
for the five full plan years preceding the member's attainment of normal retirement age and during that period the member received
disability benefits under section fourteen or fifteen of this
article then "final average salary" means the average of the
monthly salary determined paid to the member during that period as
determined under section seventeen of this article multiplied by
twelve.
(v) "Fund" means the West Virginia Deputy Sheriff Retirement
Fund created pursuant to section six of this article.
(w) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to
payment for covered employment during which time active duties are
performed. These hours shall be credited to the member for the
plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to
payment for covered employment during a plan year but where no
duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of
absence or any combination thereof and without regard to whether
the employment relationship has terminated. Hours under this
paragraph shall be calculated and credited pursuant to West
Virginia Division of Labor rules. A member will not be credited
with any hours of service for any period of time he or she is
receiving benefits under section fourteen or fifteen of this
article; and
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing county commission, irrespective of
mitigation of damages. The same hours of service shall not be
credited both under this paragraph and paragraph (1) or (2) of this
subdivision. Hours under this paragraph shall be credited to the
member for the plan year or years to which the award or agreement
pertains rather than the plan year in which the award, agreement or
payment is made.
(x) "Member" means a person first hired as a deputy sheriff
after the effective date of this article, as defined in subsection
(r) of this section, or a deputy sheriff first hired prior to the
effective date and who elects to become a member pursuant to
section five or seventeen of this article. A member shall remain
a member until the benefits to which he or she is entitled under
this article are paid or forfeited or until cessation of membership
pursuant to section five of this article.
(y) "Monthly salary" means the portion of a member's annual
compensation which is paid to him or her per month.
(z) "Normal form" means a monthly annuity which is one twelfth
of the amount of the member's accrued benefit which is payable for
the member's life. If the member dies before the sum of the
payments he or she receives equals his or her accumulated
contributions on the annuity starting date, the named beneficiary
shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the
total of the retirement income payments made to the member.
(aa) "Normal retirement age" means the first to occur of the
following: (1) Attainment of age fifty years and the completion of
twenty or more years of service; (2) while still in covered
employment, attainment of at least age fifty years and when the sum
of current age plus years of service equals or exceeds seventy
years; (3) while still in covered employment, attainment of at
least age sixty years and completion of five years of service; or
(4) attainment of age sixty-two years and completion of five or
more years of service.
(bb) "Partially disabled" means a member's inability to engage
in the duties of deputy sheriff by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months. A member may
be determined partially disabled for the purposes of this article
and maintain the ability to engage in other gainful employment
which exists within the state but which ability would not enable
him or her to earn an amount at least equal to two thirds of the
average annual compensation earned by all active members of this
plan during the plan year ending as of the most recent June 30, as
of which plan data has been assembled and used for the actuarial
valuation of the plan.
(cc) "Public Employees Retirement System" means the West
Virginia Public Employees Retirement System created by article ten,
chapter five of this code.
(dd) "Plan" means the West Virginia Deputy Sheriff Death,
Disability and Retirement Plan established by this article.
(ee) "Plan year" means the twelve-month period commencing on
July 1 of any designated year and ending the following June 30.
(ff) "Qualified public safety employee" means any employee of
a participating state or political subdivision who provides police
protection, fire-fighting services or emergency medical services
for any area within the jurisdiction of the state or political
subdivision, or such other meaning given to the term by Section
72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation
§1.401(a)-1(b)(2)(v) as they may be amended from time to time.
(gg) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with the provisions of this article.
(hh) "Required beginning date" means April 1 of the calendar
year following the later of: (i) The calendar year in which the
member attains age seventy and one-half; or (ii) the calendar year
in which he or she retires or otherwise separates from covered
employment.
(ii) "Retirement income payments" means the annual retirement
income payments payable under the plan.
(jj) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(kk) "Surviving spouse" means the person to whom the member
was legally married at the time of the member's death and who
survived the member.
(ll) "Totally disabled" means a member's inability to engage
in substantial gainful activity by reason of any medically
determined physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months. For purposes
of this subdivision:
(1) A member is totally disabled only if his or her physical
or mental impairment or impairments are so severe that he or she is
not only unable to perform his or her previous work as a deputy
sheriff but also cannot, considering his or her age, education and
work experience, engage in any other kind of substantial gainful
employment which exists in the state regardless of whether: (A) The
work exists in the immediate area in which the member lives; (B) a
specific job vacancy exists; or (C) the member would be hired if he
or she applied for work.
(2) "Physical or mental impairment" is an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques. A member's receipt of Social
Security disability benefits creates a rebuttable presumption that the member is totally disabled for purposes of this plan.
Substantial gainful employment rebuts the presumption of total
disability.
(mm) "Year of service". -- A member shall, except in his or
her first and last years of covered employment, be credited with
year of service credit based upon the hours of service performed as
covered employment and credited to the member during the plan year
based upon the following schedule:
Hours of Service Years of Service Credited
Less than 500 0
500 to 999 1/3
1,000 to 1,499 2/3
1,500 or more 1
During a member's first and last years of covered employment,
the member shall be credited with one twelfth of a year of service
for each month during the plan year in which the member is credited
with an hour of service. A member is not entitled to credit for
years of service for any time period during which he or she
received disability payments under section fourteen or fifteen of
this article. Except as specifically excluded, years of service
include covered employment prior to the effective date. Years of
service which are credited to a member prior to his or her receipt
of accumulated contributions upon termination of employment
pursuant to section thirteen of this article or section thirty,
article ten, chapter five of this code, shall be disregarded for all purposes under this plan unless the member repays the
accumulated contributions with interest pursuant to section
thirteen of this article or had prior to the effective date made
the repayment pursuant to section eighteen, article ten, chapter
five of this code.
§7-14D-3. Creation and administration of West Virginia Deputy
Sheriffs Retirement System; specification of
actuarial assumptions.
There is hereby created the West Virginia Deputy Sheriffs
Retirement System. The purpose of this system is to provide for
the orderly retirement of deputy sheriffs who become superannuated
because of age or permanent disability and to provide certain
survivor death benefits, and it is contemplated that substantially
all of the members of the retirement system shall be qualified
public safety employees as defined in section two of this article.
The retirement system constitutes a body corporate. All business
of the system shall be transacted in the name of the West Virginia
Deputy Sheriffs Retirement System. The board shall specify and
adopt all actuarial assumptions for the plan at its first meeting
of every calendar year or as soon thereafter as may be practicable,
which assumptions shall become part of the plan.
§7-14D-9. Retirement; commencement of benefits.
A member may retire and commence to receive retirement income
payments on the first day of the calendar month following the
board's receipt of the member's voluntary written application for retirement or the required beginning date, if earlier. Before
receiving retirement income payments, the member shall have ceased
covered employment and reached early or normal retirement age. The
retirement income payments shall be in an amount as provided under
section eleven of this article: Provided, That retirement income
payments under this plan shall be subject to the provisions of this
article. Upon receipt of the application, the board shall promptly
provide the member with an explanation of his or her optional forms
of retirement benefits and upon receipt of properly executed forms
from the member, the board shall process the member's request and
commence payments as soon as administratively feasible.
§7-14D-9a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and regulations under that section, to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 dollar limitation(s)"), so that the annual
benefit payable under this system to a member shall not exceed
those limitations. Any annual benefit payable under this system
shall be reduced or limited if necessary to an amount which does
not exceed those limitations. The extent to which any annuity or
other annual benefit payable under this retirement system shall be
reduced, as compared to the extent to which an annuity,
contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into
consideration under Section 415 of the Internal Revenue Code shall
be reduced, shall be proportional on a percentage basis to the
reductions made in such other plans administered by the board and
required to be so taken into consideration under Section 415,
unless a disproportionate reduction is determined by the board to
maximize the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members of any additional limitation on the annuities or
other annual benefit required by this section. For purposes of the
415 limitations, the "limitation year" shall be the calendar year.
The 415 limitations are incorporated herein by reference, except to
the extent the following provisions may modify the default
provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a
retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement
system shall in no event be greater than the limit applicable at the annuity starting date, as increased in subsequent years
pursuant to Section 415(d) of the Internal Revenue Code and the
regulations thereunder.
(b) For purposes of this section, the "annual benefit" means
a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in
a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's
benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits, and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the
form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as
increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits
paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially
equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not
below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the
greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five percent interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or
any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the
member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subdivision (c) of this section. The actuarially
equivalent straight life annuity shall be determined as follows:
The actuarially equivalent straight life annuity is equal to the
greatest of: (1) The annual amount of the straight life annuity
commencing at the same annuity starting date that has the same
actuarial present value as the member's form of benefit, computed
using the interest rate specified in this retirement system and the
mortality table (or other tabular factor) specified in this
retirement system for adjusting benefits in the same form; (2) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five and a half
percent interest rate assumption and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling
2001-62 or any subsequent Revenue Ruling modifying the applicable
provisions of Revenue Ruling 2001-62) for that annuity starting
date; and (3) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same
actuarial present value as the member's form of benefit, computed
using the applicable interest rate defined in Treasury Regulation
§1.417(e)-1(d)(3) and the applicable mortality table defined in
Treasury Regulation §1.417(e)-1(d)(2) (the mortality table
specified in Revenue Ruling 2001-62 or any subsequent Revenue
Ruling modifying the applicable provisions of Revenue Ruling 2001-
62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in paragraphs (2) and (3) of this
subdivision, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section
415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted
pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in paragraph (1) of this
subdivision shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A
qualified participant for this purpose is a participant in a defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into
account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a
full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the
defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in paragraph (1) of this
subdivision shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for
benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement system (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal
Revenue Code and subdivision (e) of this section) shall be reduced by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in
the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(g) The application of the provisions of this section shall
not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions,
regulations, and other published guidance relating to Section 415
of the Internal Revenue Code in effect as of December 31, 2008, as
described in Treasury Regulation §1.415(a)-1(g)(4). If additional
benefits are accrued for a member under this retirement system
after January 1, 2009, then the sum of the benefits described under
the first sentence of this subsection and benefits accrued for a
member after January 1, 2009, must satisfy the requirements of
Section 415, taking into account all applicable requirements of the
final 415 Treasury Regulations.
§7-14D-9b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this plan. This section applies to plan
years beginning after December 31, 1986. Notwithstanding anything
in the plan to the contrary, the payment of benefits under this
article shall be determined and made in accordance with Section
401(a)(9) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the plan to any member shall
be distributed to him or her not later than the required beginning
date, or be distributed to him or her commencing not later than the
required beginning date, in accordance with regulations prescribed
under Section 401(a)(9) of the Internal Revenue Code, over the life
of the member or over the lives of the member and his or her
beneficiary or over a period not extending beyond the life
expectancy of the member and his or her beneficiary. Benefit
payments under this section shall not be delayed pending, or
contingent upon, receipt of an application for retirement from the
member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the plan has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the plan shall be
distributed by December 31 of the calendar year containing the
fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary, commencing on or before December 31 of the calendar
year immediately following the calendar year in which the member
died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§7-14D-9c. Direct rollovers.
Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this plan, a distributee may
elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a
direct rollover. For purposes of this section, the following
definitions apply:
(1) "Eligible rollover distribution" means 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 of the following: (A) 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 the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (B) any distribution
to the extent the distribution is required under Section 401(a)(9)
of the Internal Revenue Code; (C) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; (D) any hardship distribution described in
Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For
distributions after December 31, 2001, 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 includable in gross income. However, this portion
may be paid only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Internal Revenue Code, or (for taxable years beginning before January 1, 2007) to a qualified
trust which is part of a defined contribution plan described in
Section 401(a) or (for taxable years beginning after December 31,
2006) to a qualified trust or to an annuity contract described in
Section 403(a) or (b) of the Internal Revenue Code that agrees to
separately account for amounts transferred (including interest or
earnings thereon), including separately accounting for the portion
of the distribution which is includable in gross income and the
portion of the distribution which is not so includable, or (for
taxable years beginning after December 31, 2007) to a Roth IRA
described in Section 408A of the Internal Revenue Code.
(2) "Eligible retirement plan" means 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 or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 31, 2001, an eligible retirement
plan also means an annuity contract described in Section 403(b) of
the Internal Revenue Code and 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 the plan from this
system. For distributions after December 31, 2007, an eligible
retirement plan also means a Roth IRA described in Section 408A of
the Internal Revenue Code: Provided
, That in the case of an
eligible rollover distribution after December 31, 2007, to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee'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 with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse. For distributions after December
31, 2007, "distributee" also includes a designated beneficiary
(other than a surviving spouse) as such term is defined in Section
402(c)(11) of the Internal Revenue Code.
(4) "Direct rollover" means a payment by the plan to the
eligible retirement plan.
§7-14D-9d. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) This section applies to rollovers and transfers as
specified in this section made on or after January 1, 2002.
Notwithstanding any provision of this article to the contrary that
would otherwise prohibit or limit rollovers and plan transfers to
this system, the retirement system shall accept the following
rollovers and plan transfers on behalf of a member solely for the
purpose of purchasing permissive service credit, in whole or in
part, as otherwise provided in this article or for the repayment of
withdrawn or refunded contributions, in whole and in part, with
respect to a previous forfeiture of service credit as otherwise
provided in this article: (i) One or more rollovers within the
meaning of Section 408(d)(3) of the Internal Revenue Code from an
individual retirement account described in Section 408(a) of the
Internal Revenue Code or from an individual retirement annuity
described in Section 408(b) of the Internal Revenue Code; (ii) one
or more rollovers described in Section 402(c) of the Internal
Revenue Code from a retirement plan that is qualified under Section
401(a) of the Internal Revenue Code or from a plan described in
Section 403(b) of the Internal Revenue Code; (iii) one or more
rollovers described in Section 457(e)(16) of the Internal Revenue
Code from a governmental plan described in Section 457 of the
Internal Revenue Code; or (iv) direct trustee-to-trustee transfers
or rollovers from a plan that is qualified under Section 401(a) of
the Internal Revenue Code, from a plan described in Section 403(b) of the Internal Revenue Code or from a governmental plan described
in Section 457 of the Internal Revenue Code: Provided, That any
rollovers or transfers pursuant to this section shall be accepted
by the system only if made in cash or other asset permitted by the
board and only in accordance with such policies, practices and
procedures established by the board from time to time. For
purposes of this article, the following definitions and limitations
apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of
service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code:
Provided, That no more than five years of "nonqualified service
credit", as defined in Section 415(n)(3)(C) of the Internal Revenue
Code, may be included in the permissive service credit allowed to
be purchased (other than by means of a rollover or plan transfer),
and no nonqualified service credit may be included in any such
purchase (other than by means of a rollover or plan transfer)
before the member has at least five years of participation in the
retirement system.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(3) Any contribution (other than by means of a rollover or
plan transfer) to purchase permissive service credit under any
provision of this article must satisfy the special limitation rules
described in Section 415(n) of the Internal Revenue Code, and shall
be automatically reduced, limited, or required to be paid over
multiple years if necessary to ensure such compliance. To the
extent any such purchased permissive service credit is qualified
military service within the meaning of Section 414(u) of the
Internal Revenue Code, the limitations of Section 415 of the
Internal Revenue Code shall be applied to such purchase as
described in Section 414(u)(1)(B) of the Internal Revenue Code.
(4) For purposes of Section 415(b) of the Internal Revenue
Code, the annual benefit attributable to any rollover contribution
accepted pursuant to this section shall be determined in accordance
with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if
any, of the annuity payments attributable to any rollover
contribution provided under the retirement system over the annual
benefit so determined shall be taken into account when applying the
accrued benefit limitations of Section 415(b) of the Internal
Revenue Code and section nine-a of this article.
(b) Nothing in this section shall be construed as permitting
rollovers or transfers into this system or any other system administered by the retirement board other than as specified in
this section and no rollover or transfer shall be accepted into the
system in an amount greater than the amount required for the
purchase of permissive service credit or repayment of withdrawn or
refunded contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or
refunded contributions except as otherwise permitted in this
article.
§7-14D-11. Retirement benefits.
This section provides for a member's accrued benefit payable
starting at the member's annuity starting date which follows the
completion of a written application for the commencement of
benefits. The member shall receive the accrued retirement benefit
in the normal form or in an actuarial equivalent amount in an
optional form as provided under section twelve of this article,
subject to reduction if necessary to comply with the maximum
benefit provisions of Section 415 of the Internal Revenue Code and
section nine-a of this article. The first day of the calendar
month following the calendar month of birth shall be used in lieu
of any birth date that does not fall on the first day of a calendar
month.
(a) Normal retirement. -- A member whose annuity starting
date is the date the member attains normal retirement age or later is entitled to his or her accrued retirement benefit based on years
of service and final average salary at termination of employment.
(b) Early retirement. -- A member who ceases covered
employment and has attained early retirement age while in covered
employment may elect to receive retirement income payments
commencing on the first day of the month coincident with or
following the date the member ceases covered employment. "Normal
retirement age" for such a member is the first day of the calendar
month coincident with or next following the month in which the
member attains the age of fifty years. If the member's annuity
starting date is prior to the date the member attains normal
retirement age, his or her accrued benefit is reduced to the
actuarial equivalent benefit amount based on the years and months
by which his or her annuity starting date precedes the date he or
she attains normal retirement age.
(c) Retirement benefits shall be paid monthly in an amount
equal to one twelfth of the retirement income payments elected and
at those times established by the board. Notwithstanding any other
provision of the plan, a member who is married on the annuity
starting date will receive his or her retirement income payments in
the form of a sixty-six and two-thirds percent joint and survivor
annuity with his or her spouse unless prior to the annuity starting
date the spouse waives the form of benefit.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Actuarially equivalent" or "of equal actuarial value"
means a benefit of equal value computed upon the basis of the
mortality table and interest rates as set and adopted by the
retirement board in accordance with the provisions of this article:
Provided, That when used in the context of compliance with the
federal maximum benefit requirements of Section 415 of the Internal
Revenue Code, "actuarially equivalent" shall be computed using the
mortality tables and interest rates required to comply with those
requirements.
(b) "Agency" means the West Virginia State Police.
(c) "Beneficiary" means a surviving spouse or other surviving
beneficiary who is entitled to, or will be entitled to, an annuity
or other benefit payable by the fund.
(d) "Board" means the West Virginia Consolidated Public
Retirement Board created pursuant to article ten-d, chapter five of
this code.
(e) "Dependent child" means any unmarried child or children
born to or adopted by a member of the fund who is:
(1) Under the age of eighteen;
(2) After reaching eighteen years of age, continues as a
full-time student in an accredited high school, college, university, business or trade school, until the child or children
reaches the age of twenty-three years; or
(3) Is financially dependent on the member by virtue of a
permanent mental or physical disability upon evidence satisfactory
to the board.
(f) "Dependent parent" means the member's parent or stepparent
claimed as a dependent by the member for federal income tax
purposes at the time of the member's death.
(g) "Employee" means any person regularly employed in the
service of the agency as a law-enforcement officer before March 12,
1994, and who is eligible to participate in the fund.
(h) "Fund", "plan" or "system" means the West Virginia State
Police Death, Disability and Retirement Fund.
(i) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the board
to be purely administrative in nature.
(j) "Member" means any person who has contributions standing
to his or her credit in the fund and who has not yet entered into
retirement status.
(k) "Partially disabled" means an employee's inability, on a
probable permanent basis, to perform the essential duties of a law-
enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the employee from engaging in
other types of nonlaw-enforcement employment.
(l) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(m) "Plan year" means the twelve-month period commencing on
July 1 of any designated year and ending the following June 30.
(n) "Qualified public safety employee" means any employee of
a participating state or political subdivision who provides police
protection, fire-fighting services or emergency medical services
for any area within the jurisdiction of the state or political
subdivision, or such other meaning given to the term by Section
72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation
§1.401(a)-1(b)(2)(v) as they may be amended from time to time.
(o) "Retirant" or "retiree" means any former member who is
receiving an annuity payable by the fund.
(p) "Surviving spouse" means the person to whom the member was
legally married at the time of the member's death and who survived
the member.
(q) "Totally disabled" means an employee's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subsection, an employee is totally disabled
only if his or her physical or mental impairments are so severe
that he or she is not only unable to perform his or her previous
work as an employee of the agency but also cannot, considering his
or her age, education and work experience, engage in any other kind
of substantial gainful employment which exists in the state
regardless of whether: (1) The work exists in the immediate area in
which the employee lives; (2) a specific job vacancy exists; or (3)
the employee would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund;
designating the Consolidated Public Retirement Board
as administrator of fund.
(a) There is continued the Death, Disability and Retirement
Fund created for the benefit of members, retirants and any
dependents of retirants or deceased members of the fund. It is
contemplated that substantially all of the members of the retirement system shall be qualified public safety employees as
defined in section twenty-five-b of this article.
(b) There shall be deducted from the monthly payroll of each
employee and paid into the fund six percent of the amount of his or
her salary: Provided, That beginning on July 1, 1994, there shall
be deducted from the monthly payroll of each employee and paid into
the fund seven and one-half percent of the amount of his or her
salary: Provided, however, That on and after July 1, 1995, there
shall be deducted from the monthly payroll of each employee and
paid into the fund nine percent of the amount of his or her salary.
An additional twelve percent of the monthly salary of each employee
shall be paid by the State of West Virginia monthly into the fund
out of the annual appropriation for the agency: Provided further,
That beginning on July 1, 1995, the agency shall pay thirteen
percent of the monthly salary of each employee into the fund: And
provided further, That beginning on July 1, 1996, the agency shall
pay fourteen percent of the monthly salary of each employee into
the fund: And provided further, That on and after July 1, 1997, the
agency shall pay fifteen percent of the monthly salary of each
employee into the fund. There shall also be paid into the fund
amounts that have previously been collected by the superintendent
of the agency on account of payments to employees for court
attendance and mileage, rewards for apprehending wanted persons,
fees for traffic accident reports and photographs, fees for
criminal investigation reports and photographs, fees for criminal history record checks, fees for criminal history record reviews and
challenges or from any other sources designated by the
superintendent. All moneys payable into the fund shall be
deposited in the State Treasury and the board shall keep a separate
account thereof.
(c) Notwithstanding any other provisions of this article,
forfeitures under the fund shall not be applied to increase the
benefits any member would otherwise receive under the fund.
(d) The moneys in this fund, and the right of a member to a
retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are exempt from any
state or municipal tax; are not subject to execution, garnishment,
attachment or any other process whatsoever, with the exception that
the benefits or contributions under the fund are subject to
"qualified domestic relations orders" as that term is defined in
Section 414(p) of the Internal Revenue Code with respect to
governmental plans; and are unassignable except as is provided in
this article. The fund shall be administered by the board created
pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the fund, except
amounts designated or set aside by the awards, shall be invested by
the West Virginia Investment Management Board as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The board shall retire any member of the fund who has
filed with the board his or her voluntary petition in writing for
retirement and:
(1) Has or shall have completed twenty-five years of service
as a member of the fund (including military service credit granted
under the provisions of section twenty-eight of this article);
(2) Has or shall have attained the age of fifty years and has
or shall have completed twenty years of service as a member of the
fund (excluding military service credit granted under section
twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have
completed twenty years of service as a member of the fund
(excluding military service credit granted under section twenty-
eight of this article).
(b) When the board retires any member under any of the
provisions of this section, the member is entitled to receive
annually and shall be paid from the fund in equal monthly
installments during his or her lifetime while in status of
retirement, one or the other of two amounts, whichever is the
greater, subject to reduction if necessary to comply with the
maximum benefit provisions of Section 415 of the Internal Revenue
Code and section forty-four of this article:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the employee during the whole period of
service as an employee of the agency; or
(2) The sum of $6,000.
When a member has or shall have served twenty years or longer
but less than twenty-five years as a member of the fund and is
retired under any of the provisions of this section before he or
she has attained the age of fifty years, payment of monthly
installments of the amount of retirement award to the member shall
commence on the day following the date he or she attains the age of
fifty years. Beginning on July 15, 1994, in no event may the
provisions of section thirteen, article sixteen, chapter five of
this code be applied in determining eligibility to retire with
either immediate or deferred commencement of benefit.
(c) A member meeting the age and service requirements of this
section who terminates employment at two thousand four hundred
hours may begin to receive retirement annuity payments immediately
upon termination of employment. Any member meeting the age and
service requirements of this section who terminates employment at
a time of day other than two thousand four hundred hours shall
receive a pro rata share of a full day's amount for that day. Upon
receipt of properly executed forms from the agency and the member,
the board shall process the member's retirement petition and
commence annuity payments as soon as administratively feasible.
(d) Any individual who is a leased employee is not eligible
to participate in the fund. For purposes of this fund, a "leased
employee" means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question
arises regarding the status of an individual as a leased employee,
the board has final power to decide the question.
§15-2-37. Refunds to certain employees upon discharge or
resignation; deferred retirement.
(a) Any employee who is discharged by order of the
superintendent or otherwise terminates employment with the agency,
at the written request of the member to the board, is entitled to
receive from the fund a sum equal to the aggregate of the principal
amount of moneys deducted from his or her salary and paid into the
fund plus four percent interest compounded thereon calculated
annually as provided and required by this article.
(b) Any member withdrawing contributions who may thereafter
be reemployed by the agency shall not receive any prior service
credit in the fund on account of former service. The employee may
redeposit in the fund established in article two-a of this chapter
the amount of the refund, together with interest thereon at the
rate of seven and one-half percent per annum from the date of
withdrawal to the date of redeposit, in which case he or she shall
receive the same credit on account of his or her former service as
if no refund had been made. He or she shall become a member of the
retirement system established in article two-a of this chapter.
(c) Every employee who completes ten years of service with the
agency is eligible, upon separation of employment, either to
withdraw his or her contributions in accordance with subsection (a) of this section or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions is
eligible to receive a retirement annuity. Any member choosing to
receive the deferred annuity under this subsection is not eligible
to receive the annual annuity adjustment provided in section
twenty-seven-a of this article. When the board retires any member
under any of the provisions of this section, the member is entitled
to receive annually and shall be paid from the fund in equal
monthly installments during the lifetime of the member while in
status of retirement one or the other of two amounts, whichever is
greater, subject to reduction if necessary to comply with the
maximum benefit provisions of Section 415 of the Internal Revenue
Code and section forty-four of this article:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the employee during the whole period of
service as an employee of the agency; or
(2) The sum of $6,000.
(d) A member may choose, in lieu of a life annuity available
under the provisions of subsection (c) of this section, an annuity
in a reduced amount payable during the member's lifetime, with one
half of the reduced monthly amount paid to his or her surviving
spouse, for the spouse's remaining lifetime after the death of the
retirant. Reduction of this monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the
member could otherwise have chosen.
(e) A member retiring under the provisions of this section may
receive retirement annuity payments on the day following his or her
attaining age sixty-two. Upon receipt of properly executed forms
from the agency and the member, the board shall process the
member's retirement benefit and commence annuity payments as soon
as administratively feasible.
§15-2-44. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the fund in compliance with the
limitations of Section 415 of the Internal Revenue Code and
regulations under that section to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 dollar limitation(s)"), so that the annual
benefit payable under this system to a member shall not exceed
those limitations. Any annual benefit payable under this system
shall be reduced or limited if necessary to an amount which does
not exceed those limitations. The extent to which any annuity or
other annual benefit payable under this fund shall be reduced, as
compared with the extent to which an annuity, contributions or
other benefits under any other defined benefit plans or defined
contribution plans required to be taken into consideration under
Section 415 of the Internal Revenue Code shall be reduced, shall be
proportional on a percentage basis to the reductions made in such other plans administered by the board and required to be so taken
into consideration under Section 415, unless a disproportionate
reduction is determined by the board to maximize the aggregate
benefits payable to the member. If the reduction is under this
fund, the board shall advise affected members or retirants of any
additional limitation on the annuities or other annual benefit
required by this section. For purposes of the 415 limitations, the
"limitation year" shall be the calendar year. The 415 limitations
are incorporated herein by reference, except to the extent the
following provisions may modify the default provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a
retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement
fund shall in no event be greater than the limit applicable at the
annuity starting date, as increased in subsequent years pursuant to
Section 415(d) of the Internal Revenue Code and the regulations
thereunder.
(b) For purposes of this section, the "annual benefit" means a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in
a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's
benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits, and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the
form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as
increased in subsequent years pursuant to Section 415(d) of the
Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits
paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially
equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not
below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the
greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five percent
interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or
any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the
member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subdivision (c) of this section. In this case, the
actuarially equivalent straight life annuity shall be determined as
follows: The actuarially equivalent straight life annuity is equal
to the greatest of: (1) The annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the interest rate specified in this retirement fund
and the mortality table (or other tabular factor) specified in this
retirement fund for adjusting benefits in the same form; (2) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five and a half
percent interest rate assumption and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling
2001-62 or any subsequent Revenue Ruling modifying the applicable
provisions of Revenue Ruling 2001-62) for that annuity starting
date; and (3) the annual amount of the straight life annuity
commencing at the same annuity starting date that has the same
actuarial present value as the member's form of benefit, computed
using the applicable interest rate defined in Treasury Regulation
§1.417(e)-1(d)(3) and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality table
specified in Revenue Ruling 2001-62 or any subsequent Revenue
Ruling modifying the applicable provisions of Revenue Ruling 2001-
62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in paragraphs (2) and (3) of this
subdivision, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section
415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted
pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in paragraph (1) of this
subdivision shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A
qualified participant for this purpose is a participant in a
defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into
account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the
defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in paragraph (1) of this
subdivision shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for
benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement fund (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal
Revenue Code and subdivision (e) of this section) shall be reduced
by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in
the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability benefits or preretirement death benefits.
(g) The application of the provisions of this section shall
not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions,
regulations, and other published guidance relating to Section 415
of the Internal Revenue Code in effect as of December 31, 2008, as
described in Treasury Regulation §1.415(a)-1(g)(4). If additional
benefits are accrued for a member under this retirement system
after January 1, 2009, then the sum of the benefits described under
the first sentence of this subsection and benefits accrued for a
member after January 1, 2009, must satisfy the requirements of
Section 415, taking into account all applicable requirements of the
final 415 Treasury Regulations.
§15-2-45. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this code. This section applies to plan
years beginning after December 31, 1998. Notwithstanding anything
in the retirement system to the contrary, the payment of benefits under this article shall be determined and made in accordance with
Section 401(a)(9) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the fund to any member shall
be distributed to him or her not later than the required beginning
date, or be distributed to him or her commencing not later than the
required beginning date, in accordance with regulations prescribed
under Section 401(a)(9) of the Internal Revenue Code, over the life
of the member or over the lives of the member and his or her
beneficiary, or over a period not extending beyond the life
expectancy of the member and his or her beneficiary. For purposes
of this section, the term "required beginning date" means April 1
of the calendar year following the later of: (i) The calendar year
in which the member attains age seventy and one-half; or (ii) the
calendar year in which the member retires or otherwise ceases
providing covered service under this fund. Benefit payments under
this section shall not be delayed pending, or contingent upon,
receipt of an application for retirement from the member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the fund shall be
distributed by December 31 of the calendar year containing the
fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before December 31 of the calendar
year immediately following the calendar year in which the
participant died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§15-2-46. Direct rollovers.
(a) Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this fund, a distributee may
elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution that is equal
to at least $500 paid directly to an eligible retirement plan
specified by the distributee in a direct rollover. For purposes of
this section, the following definitions apply:
(1) "Eligible rollover distribution" means 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 of the following: (i) 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 the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (ii) any distribution
to the extent the distribution is required under Section 401(a)(9)
of the Internal Revenue Code; (iii) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; (iv) any hardship distribution described in
Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v)
any other distribution or distributions that are reasonably
expected to total less than $200 during a year. For distributions
after December 31, 2001, 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
includable in gross income. However, this portion may be paid only to an individual retirement account or annuity described in Section
408(a) or (b) of the Internal Revenue Code, or (for taxable years
beginning before January 1, 2007) to a qualified trust which is
part of a defined contribution plan described in Section 401(a) or
(for taxable years beginning after December 31, 2006) to a
qualified trust or to an annuity contract described in Section
403(a) or(b) of the Internal Revenue Code that agrees to separately
account for amounts transferred (including interest or earnings
thereon), including separately accounting for the portion of the
distribution which is includable in gross income and the portion of
the distribution which is not so includable, or (for taxable years
beginning after December 31, 2007) to a Roth IRA described in
Section 408A of the Internal Revenue Code.
(2) "Eligible retirement plan" means 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, or a qualified plan described in
Section 401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 31, 2001, an eligible retirement
plan also means an annuity contract described in Section 403(b) of the Internal Revenue Code and 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 the plan from this
system. For distributions after December 31, 2007, an eligible
retirement plan also means a Roth IRA described in Section 408A of
the Internal Revenue Code: Provided, That in the case of an
eligible rollover distribution after December 31, 2007, to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means a member. In addition, the member's
surviving spouse and the 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 with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse. For distributions after December
31, 2007, "distributee" also includes a designated beneficiary
(other than a surviving spouse) as such term is defined in Section
402(c)(11) of the Internal Revenue Code.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this fund or any other retirement system
administered by the board.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Accumulated contributions" means the sum of all amounts
deducted from base salary, together with four percent interest
compounded annually.
(2) "Active military duty" means full-time active duty with
the armed forces of the United States, namely, the United States
Air Force, Army, Coast Guard, Marines or Navy; and service with the
National Guard or reserve military forces of any of the armed
forces when the employee has been called to active full-time duty.
(3) "Actuarially equivalent" or "of equal actuarial value"
means a benefit of equal value computed upon the basis of the
mortality table and interest rates as set and adopted by the
retirement board in accordance with the provisions of this article:
Provided, That when used in the context of compliance with the
federal maximum benefit requirements of Section 415 of the Internal
Revenue Code, "actuarially equivalent" shall be computed using the
mortality tables and interest rates required to comply with those
requirements.
(4) "Agency" means the West Virginia State Police.
(5) "Base salary" means compensation paid to an employee
without regard to any overtime pay.
(6) "Beneficiary" means a surviving spouse or other surviving
beneficiary who is entitled to, or will be entitled to, an annuity
or other benefit payable by the fund.
(7) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(8) "Dependent child" means any unmarried child or children
born to or adopted by a member or retirant of the fund who:
(A) Is under the age of eighteen;
(B) After reaching eighteen years of age, continues as a full-
time student in an accredited high school, college, university,
business or trade school until the child or children reaches the
age of twenty-three years; or
(C) Is financially dependent on the member or retirant by
virtue of a permanent mental or physical disability upon evidence
satisfactory to the board.
(9) "Dependent parent" means the member's or retirant's parent
or stepparent claimed as a dependent by the member or retirant for
federal income tax purposes at the time of the member's or
retirant's death.
(10) "Employee" means any person regularly employed in the
service of the agency as a law-enforcement officer after May 12,
1994, and who is eligible to participate in the fund.
(11) "Final average salary" means the average of the highest
annual compensation received for employment with the agency,
including compensation paid for overtime service, received by the
employee during any five calendar years within the employee's last
ten years of service: Provided, That annual compensation for
determining benefits during any determination period may not exceed
the maximum compensation allowed as adjusted for cost of living in
accordance with section seven, article ten-d, chapter five of this
code and Section 401(a)(17) of the Internal Revenue Code.
(12) "Fund", "plan", "system" or "retirement system" means the
West Virginia State Police Retirement Fund created and established
by this article.
(13) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended.
(14) "Law-enforcement officer" means an individual employed
or otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are purely administrative
in nature.
(15) "Member" means any person who has contributions standing
to his or her credit in the fund and who has not yet entered into
retirement status.
(16) "Month of service" means each month for which an employee
is paid or entitled to payment for at least one hour of service for
which contributions were remitted to the fund. These months shall
be credited to the member for the calendar year in which the duties
are performed.
(17) "Partially disabled" means an employee's inability, on
a probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the employee from engaging in
other types of nonlaw-enforcement employment.
(18) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(19) "Plan year" means the twelve-month period commencing on
July 1 of any designated year and ending the following June 30.
(20) "Qualified public safety employee" means any employee of
a participating state or political subdivision who provides police
protection, fire-fighting services or emergency medical services
for any area within the jurisdiction of the state or political subdivision, or such other meaning given to the term by Section
72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation
§1.401(a)-1(b)(2)(v) as they may be amended from time to time.
(21) "Required beginning date" means April 1 of the calendar
year following the later of: (a) The calendar year in which the
member attains age seventy and one-half years; or (b) the calendar
year in which he or she retires or otherwise separates from service
with the agency after having attained the age of seventy and one-
half years.
(22) "Retirant" or "retiree" means any member who commences
an annuity payable by the retirement system.
(23) "Salary" means the compensation of an employee, excluding
any overtime payments.
(24) "Surviving spouse" means the person to whom the member
or retirant was legally married at the time of the member's or
retirant's death and who survived the member or retirant.
(25) "Totally disabled" means an employee's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subdivision, an employee is totally disabled
only if his or her physical or mental impairments are so severe
that he or she is not only unable to perform his or her previous
work as an employee of the agency, but also cannot, considering his or her age, education and work experience, engage in any other kind
of substantial gainful employment which exists in the state
regardless of whether: (A) The work exists in the immediate area in
which the employee lives; (B) a specific job vacancy exists; or (C)
the employee would be hired if he or she applied for work.
(26) "Years of service" means the months of service acquired
by a member while in active employment with the agency divided by
twelve. Years of service shall be calculated in years and fraction
of a year from the date of active employment of the member with the
agency through the date of termination of employment or retirement
from the agency. If a member returns to active employment with the
agency following a previous termination of employment with the
agency and the member has not received a refund of contributions
plus interest for the previous employment under section eight of
this article, service shall be calculated separately for each
period of continuous employment and years of service shall be the
total service for all periods of employment. Years of service
shall exclude any periods of employment with the agency for which
a refund of contributions plus interest has been paid to the member
unless the employee repays the previous withdrawal, as provided in
section eight of this article, to reinstate the years of service.
§15-2A-3. Continuation and administration of West Virginia State
Police Retirement System; leased employees; federal
qualification requirements.
(a) The West Virginia State Police Retirement System is
continued. It is contemplated that substantially all of the
members of the retirement system shall be qualified public safety
employees as defined in section two of this article. Any West
Virginia state trooper employed by the agency on or after the
effective date of this article shall be a member of this retirement
system and may not qualify for membership in any other retirement
system administered by the board so long as he or she remains
employed by the State Police.
(b) Any individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this
system, a "leased employee" means any individual who performs
services as an independent contractor or pursuant to an agreement
with an employee leasing organization or other similar
organization. If a question arises regarding the status of an
individual as a leased employee, the board has final power to
decide the question.
(c) The board created pursuant to article ten-d, chapter five
of this code shall administer the retirement system. The board may
sue and be sued, contract and be contracted with and conduct all
the business of the system in the name of the West Virginia State
Police Retirement System.
(d) This fund is intended to meet the federal qualification
requirements of Section 401(a) and related sections of the Internal
Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the
retirement system to fulfill this intent for the exclusive benefit
of the employees, members, retirants and their beneficiaries. Any
provision of this article referencing or relating to these federal
qualification requirements shall be effective as of the date
required by federal law. The board may promulgate rules and amend
or repeal conflicting rules in accordance with the authority
granted to the board pursuant to section one, article ten-d,
chapter five of this code to assure compliance with this section.
§15-2A-6. Retirement; commencement of benefits.
(a) A member may retire with full benefits upon attaining the
age of fifty and completing twenty-five or more years of service or
attaining the age of fifty-two and completing twenty years or more
of service by filing with the board his or her voluntary
application in writing for retirement. A member who is less than
age fifty-two may retire upon completing twenty years or more of
service: Provided, That he or she will receive a reduced benefit
that is of equal actuarial value to the benefit the member would
have received if the member deferred commencement of his or her
accrued retirement benefit to the age of fifty-two.
(b) When the board retires a member with full benefits under
the provisions of this section, the board, by order in writing,
shall make a determination that the member is entitled to receive
an annuity equal to two and three-fourths percent of his or her
final average salary multiplied by the number of years, and fraction of a year, of his or her service at the time of
retirement, subject to reduction if necessary to comply with the
maximum benefit provisions of Section 415 of the Internal Revenue
Code and section six-a of this article. The retirant's annuity
shall begin the first day of the calendar month following the month
in which the member's application for the annuity is filed with the
board on or after his or her attaining age and service requirements
and termination of employment.
(c) In no event may the provisions of section thirteen,
article sixteen, chapter five of this code be applied in
determining eligibility to retire with either a deferred or
immediate commencement of benefit.
§15-2A-6a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and Treasury Regulations under that section to the extent
applicable to governmental plans (hereafter sometimes referred to
as the "415 limitation(s)" or "415 dollar limitation(s)"), so that
the annual benefit payable under this system to a member shall not
exceed those limitations. Any annual benefit payable under this
system shall be reduced or limited if necessary to an amount which
does not exceed those limitations. The extent to which any annuity
or other annual benefit payable under this retirement system shall
be reduced, as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit
plans or defined contribution plans required to be taken into
consideration under Section 415 of the Internal Revenue Code shall
be reduced, shall be proportional on a percentage basis to the
reductions made in such other plans administered by the board and
required to be so taken into consideration under Section 415,
unless a disproportionate reduction is determined by the board to
maximize the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members or retirants of any additional limitation on the
annuities or other annual benefit required by this section. For
purposes of the 415 limitations, the "limitation year" shall be the
calendar year. The 415 limitations are incorporated herein by
reference, except to the extent the following provisions may modify
the default provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a
retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement system shall in no event be greater than the limit applicable at
the annuity starting date, as increased in subsequent years
pursuant to Section 415(d) of the Internal Revenue Code and the
regulations thereunder.
(b) For purposes of this section, the "annual benefit" means
a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in
a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's
benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits, and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the
form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the
Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits
paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially
equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not
below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the
greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five percent
interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or
any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the
member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subdivision (c) of this section. In this case, the
actuarially equivalent straight life annuity shall be determined as
follows: The actuarially equivalent straight life annuity is equal
to the greatest of: (1) The annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the interest rate specified in this retirement
system and the mortality table (or other tabular factor) specified
in this retirement system for adjusting benefits in the same form;
(2) the annual amount of the straight life annuity commencing at
the same annuity starting date that has the same actuarial present
value as the member's form of benefit, computed using a five and a
half percent interest rate assumption and the applicable mortality
table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue
Ruling 2001-62 or any subsequent Revenue Ruling modifying the
applicable provisions of Revenue Ruling 2001-62) for that annuity starting date; and (3) the annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the applicable interest rate defined in Treasury
Regulation §1.417(e)-1(d)(3) and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality
table specified in Revenue Ruling 2001-62 or any subsequent Revenue
Ruling modifying the applicable provisions of Revenue Ruling
2001-62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in paragraphs (2) and (3) of this
subdivision, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section
415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted
pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in paragraph (1) of this
subdivision shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A qualified participant for this purpose is a participant in a
defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into
account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a
full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the
defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in paragraph (1) of this
subdivision shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for
benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement system (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal Revenue Code and subdivision (e) of this section) shall be reduced
by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in
the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(g) The application of the provisions of this section shall
not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions,
regulations and other published guidance relating to Section 415 of
the Internal Revenue Code in effect as of the end of December 31,
2008, as described in Treasury Regulation §1.415(a)-1(g)(4). If
additional benefits are accrued for a member under this retirement
system after January 1, 2009, then the sum of the benefits
described under the first sentence of this subsection and benefits
accrued for a member after January 1, 2009, must satisfy the
requirements of Section 415, taking into account all applicable
requirements of the final 415 Treasury Regulations.
§15-2A-6b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's interest and take precedence over any inconsistent
provisions of this retirement system. This section applies to plan
years beginning after December 31, 1986. Notwithstanding anything
in the retirement system to the contrary, the payment of benefits
under this article shall be determined and made in accordance with
Section 401(a)(9) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the retirement system to any
member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
regulations prescribed under Section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the
member and his or her beneficiary or over a period not extending
beyond the life expectancy of the member and his or her
beneficiary. Benefit payments under this section shall not be
delayed pending, or contingent upon, receipt of an application for
retirement from the member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system
shall be distributed by December 31 of the calendar year containing
the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before December 31 of the calendar
year immediately following the calendar year in which the member
died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§15-2A-6c. Direct rollovers.
(a) Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this system, a distributee may
elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a
direct rollover. For purposes of this section, the following
definitions apply:
(1) "Eligible rollover distribution" means 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 of the following: (i) 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 the joint life expectancies
of the distributee and the distributee's designated beneficiary or
for a specified period of ten years or more; (ii) any distribution
to the extent the distribution is required under Section 401(a)(9)
of the Internal Revenue Code; (iii) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; and (iv) any hardship distribution described
in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For
distributions after December 31, 2001, 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 includable in gross income. However, this portion
may be paid only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Internal Revenue Code or (for taxable years beginning before January 1, 2007) to a qualified
trust which is part of a defined contribution plan described in
Section 401(a) or (for taxable years beginning after December 31,
2006) to a qualified trust or to an annuity contract described in
Section 403(a) or (b) of the Internal Revenue Code that agrees to
separately account for amounts transferred (including interest or
earnings thereon), including separately accounting for the portion
of the distribution which is includable in gross income and the
portion of the distribution which is not so includable, or (for
taxable years beginning after December 31, 2007) to a Roth IRA
described in Section 408A of the Internal Revenue Code.
(2) "Eligible retirement plan" means 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 or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 31, 2001, an eligible retirement
plan also means an annuity contract described in Section 403(b) of
the Internal Revenue Code and 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 the plan from this
system. For distributions after December 31, 2007, an eligible
retirement plan also means a Roth IRA described in Section 408A of
the Internal Revenue Code: Provided, however, That in the case of
an eligible rollover distribution after December 31, 2007, to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee'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 with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse. For distributions after December
31, 2007, "distributee" also includes a designated beneficiary
(other than a surviving spouse) as such term is defined in Section
402(c)(11) of the Internal Revenue Code.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other retirement system
administered by the board.
§15-2A-6d. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) This section applies to rollovers and transfers as
specified in this section made on or after January 1, 2002.
Notwithstanding any provision of this article to the contrary that
would otherwise prohibit or limit rollovers and plan transfers to
this system, the retirement system shall accept the following
rollovers and plan transfers on behalf of an employee solely for
the purpose of purchasing permissive service credit, in whole and
in part, as otherwise provided in this article or for the repayment
of withdrawn or refunded contributions, in whole and in part, with
respect to a previous forfeiture of service credit as otherwise
provided in this article: (i) One or more rollovers within the
meaning of Section 408(d)(3) of the Internal Revenue Code from an
individual retirement account described in Section 408(a) of the
Internal Revenue Code or from an individual retirement annuity
described in Section 408(b) of the Internal Revenue Code; (ii) one
or more rollovers described in Section 402 (c) of the Internal
Revenue Code from a retirement plan that is qualified under Section
401(a) of the Internal Revenue Code or from a plan described in
Section 403(b) of the Internal Revenue Code; (iii) one or more
rollovers described in Section 457(e)(16) of the Internal Revenue Code from a governmental plan described in Section 457 of the
Internal Revenue Code; or (iv) direct trustee-to-trustee transfers
or rollovers from a plan that is qualified under Section 401(a) of
the Internal Revenue Code from a plan described in Section 403(b)
of the Internal Revenue Code or from a governmental plan described
in Section 457 of the Internal Revenue Code: Provided, That any
rollovers or transfers pursuant to this section shall be accepted
by the system only if made in cash or other asset permitted by the
board and only in accordance with the policies, practices and
procedures established by the board from time to time. For
purposes of this article, the following definitions and limitations
apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of
service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code:
Provided, That no more than five years of "nonqualified service
credit", as defined in Section 415(n)(3)(C) of the Internal Revenue
Code, may be included in the permissive service credit allowed to
be purchased (other than by means of a rollover or plan transfer),
and no nonqualified service credit may be included in any such
purchase (other than by means of a rollover or plan transfer) before the member has at least five years of participation in the
retirement system.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit
previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(3) Any contribution (other than by means of a rollover or
plan transfer) to purchase permissive service credit under any
provision of this article must satisfy the special limitation rules
described in Section 415(n) of the Internal Revenue Code, and shall
be automatically reduced, limited or required to be paid over
multiple years if necessary to ensure such compliance. To the
extent any such purchased permissive service credit is qualified
military service within the meaning of Section 414(u) of the
Internal Revenue Code, the limitations of Section 415 of the
Internal Revenue Code shall be applied to such purchase as
described in Section 414(u)(1)(B) of the Internal Revenue Code.
(4) For purposes of Section 415(b) of the Internal Revenue
Code, the annual benefit attributable to any rollover contribution
accepted pursuant to this section shall be determined in accordance
with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if
any, of the annuity payments attributable to any rollover
contribution provided under the retirement system over the annual benefit so determined shall be taken into account when applying the
accrued benefit limitations of Section 415(b) of the Internal
Revenue Code and section six-a of this article.
(b) Nothing in this section shall be construed as permitting
rollovers or transfers into this system or any other system
administered by the board other than as specified in this section
and no rollover or transfer shall be accepted into the system in an
amount greater than the amount required for the purchase of
permissive service credit or repayment of withdrawn or refunded
contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or
refunded contributions except as otherwise permitted in this
chapter.
§15-2A-8. Refunds to certain members upon discharge of
resignation; deferred retirement.
(a) Any employee who is discharged by order of the
superintendent or otherwise terminates employment with the agency
is, at the written request of the member to the board, entitled to
receive from the fund a sum equal to the aggregate of the principal
amount of moneys deducted from his or her base salary and paid into
the fund plus four percent interest compounded thereon calculated
annually as provided and required by this article.
(b) Any member withdrawing contributions who may thereafter
be reemployed by the agency shall not receive any prior service credit in the fund on account of former service. The employee may
redeposit in the fund established by this article the amount of the
refund, together with interest thereon at the rate of seven and
one-half percent per annum from the date of withdrawal to the date
of redeposit, in which case he or she shall receive the same credit
on account of his or her former service as if no refund had been
made.
(c) Every employee who completes ten years of service with the
agency is eligible, upon separation of employment, to either
withdraw his or her contributions in accordance with subsection (a)
of this section or to choose not to withdraw his or her accumulated
contributions. Upon attainment of age sixty-two, a member who
chooses not to withdraw his or her contributions is eligible to
receive a retirement annuity. The annuity shall be payable during
the lifetime of the retirant and shall be in the amount of his or
her accrued retirement benefit as determined under section six of
this article, subject to reduction if necessary to comply with the
maximum benefit provisions of Section 415 of the Internal Revenue
Code and section six-a of this article. The retirant may choose,
in lieu of a life annuity, an annuity in a reduced amount payable
during the retirant's lifetime, with one half of the reduced
monthly amount paid to his or her surviving spouse for the spouse's
remaining lifetime after the death of the retirant. Reduction of
the monthly benefit amount shall be calculated to be of equal
actuarial value to the life annuity the retirant could otherwise have chosen. Any retirant choosing to receive the deferred annuity
under this subsection is not eligible to receive the annual annuity
adjustment provided in section seven of this article. A retiring
member under the provisions of this section may receive retirement
annuity payments on the first day of the month following his or her
attaining age sixty-two and upon receipt of the application for
retirement. The board shall promptly provide the member with an
explanation of his or her optional forms of retirement benefits
and, upon receipt of properly executed forms from the agency and
member, the board shall process the member's request for and
commence payments as soon as administratively feasible.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5V. EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
§16-5V-2. Definitions.
As used in this article, unless a federal law or regulation or
the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and
six-tenths percent per year of the member's final average salary
for the first twenty years of credited service. Additionally, two
percent per year for twenty-one through twenty-five years and one
percent per year for twenty-six through thirty years will be
credited with a maximum benefit of sixty-seven percent. A member's
accrued benefit may not exceed the limits of Section 415 of the
Internal Revenue Code and is subject to the provisions of section
twelve of this article.
(1) The board may upon the recommendation of the board's
actuary increase the employees' contribution rate to ten and five-
tenths percent should the funding of the plan not reach seventy
percent funded by July 1, 2012. The board shall decrease the
contribution rate to eight and one-half percent once the plan
funding reaches the seventy percent support objective as of any
later actuarial valuation date.
(2) Upon reaching the seventy-five percent actuarial funded
level, as of an actuarial valuation date, the board shall increase
the two and six-tenths percent to two and three-quarter percent for
the first twenty years of credited service. The maximum benefit
will also be increased from sixty-seven percent to seventy percent.
(b) "Accumulated contributions" means the sum of all
retirement contributions deducted from the compensation of a
member, or paid on his or her behalf as a result of covered
employment, together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with
any branch of the armed forces of the United States, including
service with the National Guard or reserve military forces when the
member has been called to active full-time duty and has received no
compensation during the period of that duty from any board or
employer other than the armed forces.
(d) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of the mortality table and interest rates
as set and adopted by the board in accordance with the provisions of this article:
Provided, That when used in the context of
compliance with the federal maximum benefit requirements of Section
415 of the Internal Revenue Code, "actuarial equivalent" shall be
computed using the mortality tables and interest rates required to
comply with those requirements.
(e) "Annual compensation" means the wages paid to the member
during covered employment within the meaning of Section 3401(a) of
the Internal Revenue Code, but determined without regard to any
rules that limit the remuneration included in wages based upon the
nature or location of employment or services performed during the
plan year plus amounts excluded under Section 414(h)(2) of the
Internal Revenue Code and less reimbursements or other expense
allowances, cash or noncash fringe benefits or both, deferred
compensation and welfare benefits. Annual compensation for
determining benefits during any determination period may not exceed
the maximum compensation allowed as adjusted for cost-of-living in
accordance with section seven, article ten-d, chapter five of this
code and Section 401(a)(17) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the month
for which an annuity is payable after submission of a retirement
application or the required beginning date, if earlier. For
purposes of this subsection, if retirement income payments commence
after the normal retirement age, "retirement" means the first day
of the month following or coincident with the latter of the last day the member worked in covered employment or the member's normal
retirement age and after completing proper written application for
"retirement" on an application supplied by the board.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the
meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as a
full-time emergency medical technician, emergency medical
technician/paramedic or emergency medical services/registered nurse
and the active performance of the duties required of emergency
medical services officers; or (2) the period of time during which
active duties are not performed but disability benefits are
received under this article; or (3) concurrent employment by an
emergency medical services officer in a job or jobs in addition to
his or her employment as an emergency medical services officer
where the secondary employment requires the emergency medical
services officer to be a member of another retirement system which
is administered by the Consolidated Public Retirement Board
pursuant to this code: Provided, That the emergency medical
services officer contributes to the fund created in this article
the amount specified as the member's contribution in section eight
of this article.
(k) "Credited service" means the sum of a member's years of
service, active military duty, disability service and accrued
annual and sick leave service.
(l) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living
with the member while the member was an adopting parent during any
period of probation; or
(D) A stepchild of the member residing in the member's
household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited
college or university;
(B) Who was claimed as a dependent by the member for federal
income tax purposes at the time of member's death; and
(C) Whose relationship with the member is described in
subparagraph (A), (B) or (C), paragraph (1) of this subdivision.
(m) "Dependent parent" means the father or mother of the
member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death.
(n) "Disability service" means service credit received by a
member, expressed in whole years, fractions thereof or both, equal
to one half of the whole years, fractions thereof, or both, during
which time a member receives disability benefits under this
article.
(o) "Early retirement age" means age forty-five or over and completion of twenty years of regular contributory service.
(p) "Effective date" means January 1, 2008.
(q) "Emergency medical services officer" means an individual
employed by the state, county or other political subdivision as a
medical professional who is qualified to respond to medical
emergencies, aids the sick and injured and arranges or transports
to medical facilities, as defined by the West Virginia Office of
Emergency Medical Services. This definition is construed to
include employed ambulance providers and other services such as law
enforcement, rescue or fire department personnel who primarily
perform these functions and are not provided any other credited
service benefits or retirement plans. These persons may hold the
rank of emergency medical technician/basic, emergency medical
technician/paramedic, emergency medical services/registered nurse,
or others as defined by the West Virginia Office of Emergency
Medical Services and the Consolidated Public Retirement Board.
(r) "Final average salary" means the average of the highest
annual compensation received for covered employment by the member
during any five consecutive plan years within the member's last ten
years of service while employed, prior to any disability payment.
If the member did not have annual compensation for the five full
plan years preceding the member's attainment of normal retirement
age and during that period the member received disability benefits
under this article, then "final average salary" means the average
of the monthly salary determined paid to the member during that period as determined under section twenty-two of this article
multiplied by twelve. "Final average salary" does not include any
lump sum payment for unused, accrued leave of any kind or
character.
(s) "Full-time employment" means permanent employment of an
employee by a participating public employer in a position which
normally requires twelve months per year service and requires at
least one thousand forty hours per year service in that position.
(t) "Fund" means the West Virginia Emergency Medical Services
Retirement Fund created by this article.
(u) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to
payment for covered employment during which time active duties are
performed. These hours shall be credited to the member for the
plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to
payment for covered employment during a plan year but where no
duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of
absence or any combination thereof and without regard to whether
the employment relationship has terminated. Hours under this
subdivision shall be calculated and credited pursuant to West
Virginia Division of Labor rules. A member will not be credited
with any hours of service for any period of time he or she is
receiving benefits under section nineteen or twenty of this article; and
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing county commission or political
subdivision, irrespective of mitigation of damages. The same hours
of service shall not be credited both under paragraph (1) or (2) of
this subdivision and under this paragraph. Hours under this
paragraph shall be credited to the member for the plan year or
years to which the award or agreement pertains, rather than the
plan year in which the award, agreement or payment is made.
(v) "Member" means a person first hired as an emergency
medical services officer by an employer which is a participating
public employer of the Public Employees Retirement System or the
Emergency Medical Services Retirement System after the effective
date of this article, as defined in subdivision (p) of this
section, or an emergency medical services officer of an employer
which is a participating public employer of the Public Employees
Retirement System first hired prior to the effective date and who
elects to become a member pursuant to this article. A member shall
remain a member until the benefits to which he or she is entitled
under this article are paid or forfeited.
(w) "Monthly salary" means the W-2 reportable compensation
received by a member during the month.
(x) "Normal form" means a monthly annuity which is one twelfth
of the amount of the member's accrued benefit which is payable for
the member's life. If the member dies before the sum of the payments he or she receives equals his or her accumulated
contributions on the annuity starting date, the named beneficiary
shall receive in one lump sum the difference between the
accumulated contributions at the annuity starting date and the
total of the retirement income payments made to the member.
(y) "Normal retirement age" means the first to occur of the
following:
(1) Attainment of age fifty years and the completion of twenty
or more years of regular contributory service;
(2) While still in covered employment, attainment of at least
age fifty years and when the sum of current age plus regular
contributory service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least
age sixty years and completion of ten years of regular contributory
service; or
(4) Attainment of age sixty-two years and completion of five
or more years of regular contributory service.
(z) "Political subdivision" means a county, city or town in
the state; any separate corporation or instrumentality established
by one or more counties, cities or towns, as permitted by law; any
corporation or instrumentality supported in most part by counties,
cities or towns; and any public corporation charged by law with the
performance of a governmental function and whose jurisdiction is
coextensive with one or more counties, cities or towns: Provided,
That any public corporation established under section four, article fifteen, chapter seven of this code is considered a political
subdivision solely for the purposes of this article.
(aa) "Public Employees Retirement System" means the West
Virginia Public Employees Retirement System created by West
Virginia Code.
(bb) "Plan" means the West Virginia Emergency Medical Services
Retirement System established by this article.
(cc) "Plan year" means the twelve-month period commencing on
January 1 of any designated year and ending December 31.
(dd) "Qualified public safety employee" means any employee of
a participating state or political subdivision who provides police
protection, fire-fighting services or emergency medical services
for any area within the jurisdiction of the state or political
subdivision, or such other meaning given to the term by Section
72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation
§1.401(a)-1(b)(2)(v) as they may be amended from time to time.
(ee) "Regular contributory service" means a member's credited
service excluding active military duty, disability service and
accrued annual and sick leave service.
(ff) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with the provisions of this article.
(gg) "Required beginning date" means April 1 of the calendar
year following the later of: (1) The calendar year in which the
member attains age seventy and one-half; or (2) the calendar year in which he or she retires or otherwise separates from covered
employment; or (3) for members who are covered under the Public
Employees Retirement System, their service shall be recognized upon
transfer of assets from the Public Employees Retirement System
according to the provisions of section nine of this article. Prior
service for members not covered under the Public Employees
Retirement System shall be recognized only upon repayment of
amounts covered under the provisions of section six of this
article.
(hh) "Retirement income payments" means the monthly retirement
income payments payable under the plan.
(ii) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(jj) "Surviving spouse" means the person to whom the member
was legally married at the time of the member's death and who
survived the member.
(kk) "Totally disabled" means a member's inability to engage
in substantial gainful activity by reason of any medically
determined physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months.
For purposes of this subsection:
(1) A member is totally disabled only if his or her physical
or mental impairment or impairments is so severe that he or she is
not only unable to perform his or her previous work as an emergency medical services officer but also cannot, considering his or her
age, education and work experience, engage in any other kind of
substantial gainful employment which exists in the state regardless
of whether: (A) The work exists in the immediate area in which the
member lives; (B) a specific job vacancy exists; or (C) the member
would be hired if he or she applied for work. For purposes of this
article, "substantial gainful employment" is the same definition as
used by the United States Social Security Administration.
(2) "Physical or mental impairment" is an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques. The board may require submission
of a member's annual tax return for purposes of monitoring the
earnings limitation.
(ll) "Year of service" means a member shall, except in his or
her first and last years of covered employment, be credited with
years of service credit based upon the hours of service performed
as covered employment and credited to the member during the plan
year based upon the following schedule:
Hours of ServiceYear of Service
Less than 5000
500 to 9991/3
1,000 to 1,4992/3
1,500 or more1
During a member's first and last years of covered employment,
the member shall be credited with one twelfth of a year of service
for each month during the plan year in which the member is credited
with an hour of service for which contributions were received by
the fund. A member is not entitled to credit for years of service
for any time period during which he or she received disability
payments under section nineteen or twenty of this article. Except
as specifically excluded, years of service include covered
employment prior to the effective date.
Years of service which are credited to a member prior to his
or her receipt of accumulated contributions upon termination of
employment pursuant to section eighteen of this article or section
thirty, article ten, chapter five of this code shall be disregarded
for all purposes under this plan unless the member repays the
accumulated contributions with interest pursuant to section
eighteen of this article or has prior to the effective date made
the repayment pursuant to section eighteen, article ten, chapter
five of this code.
§16-5V-4. Creation and administration of West Virginia Emergency
Medical Services Retirement System; specification
of actuarial assumptions.
There is hereby created the West Virginia Emergency Medical
Services Retirement System. The purpose of this system is to
provide for the orderly retirement of emergency medical services
officers who become superannuated because of age or permanent disability and to provide certain survivor death benefits, and it
is contemplated that substantially all of the members of the
retirement system shall be qualified public safety employees as
defined in section two of this article. The retirement system
shall come into effect January 1, 2008: Provided, That at least
seventy percent of all eligible emergency medical services officers
and at least eighty-five percent of the eligible emergency medical
services officers who are currently active members of the Public
Employees Retirement System elect to participate in this plan by
December 31, 2007. If this level of participation is not reached,
then all of the provisions of this article are void and of no force
and effect. All business of the system shall be transacted in the
name of the West Virginia Emergency Medical Services Retirement
System. The board shall specify and adopt all actuarial
assumptions for the plan at its first meeting of every calendar
year or as soon thereafter as may be practicable, which assumptions
shall become part of the plan.
§16-5V-12. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and regulations under that section
,
to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 dollar limitation(s)"), so that the annual
benefit payable under this system to a member shall not exceed those limitations. Any annual benefit payable under this system
shall be reduced or limited if necessary to an amount which does
not exceed those limitations. The extent to which any annuity or
other annual benefit payable under this retirement system shall be
reduced as compared with the extent to which an annuity,
contributions or other benefits under any other defined benefit
plans or defined contribution plans required to be taken into
consideration under Section 415 of the Internal Revenue Code shall
be reduced, shall be proportional on a percentage basis to the
reductions made in such other plans administered by the board and
required to be so taken into consideration under Section 415,
unless a disproportionate reduction is determined by the board to
maximize the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members of any additional limitation on the annuities or
other annual benefit required by this section. For purposes of the
415 limitations, the "limitation year" shall be the calendar year.
The 415 limitations are incorporated herein by reference, except to
the extent the following provisions may modify the default
provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement
system shall in no event be greater than the limit applicable at
the annuity starting date, as increased in subsequent years
pursuant to Section 415(d) of the Internal Revenue Code and the
regulations thereunder.
(b) For purposes of this section, the "annual benefit" means
a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in
a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's
benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits, and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as
increased in subsequent years pursuant to Section 415(d) of the
Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits
paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially
equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not
below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II)
the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five percent
interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or
any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the
member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subdivision (c) of this section. In this case, the
actuarially equivalent straight life annuity shall be determined as
follows: The actuarially equivalent straight life annuity is equal
to the greatest of: (1) The annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the interest rate specified in this retirement
system and the mortality table (or other tabular factor) specified
in this retirement system for adjusting benefits in the same form;
(2)
the annual amount of the straight life annuity commencing at
the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five and a
half percent interest rate assumption and the applicable mortality
table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue
Ruling 2001-62 or any subsequent Revenue Ruling modifying the
applicable provisions of Revenue Ruling 2001-62) for that annuity
starting date; and (3) the annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the applicable interest rate defined in Treasury
Regulation §1.417(e)-1(d)(3) and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality
table specified in Revenue Ruling 2001-62 or any subsequent Revenue
Ruling modifying the applicable provisions of Revenue Ruling
2001-62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in paragraphs (2) and (3) of this
subdivision, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section
415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in paragraph (1) of this
subdivision shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A
qualified participant for this purpose is a participant in a
defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into
account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a
full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the
defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in paragraph (1) of this
subdivision shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for
benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement system (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal
Revenue Code and subdivision (e) of this section) shall be reduced
by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in
the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(g) The application of the provisions of this section shall
not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions,
regulations and other published guidance relating to Section 415 of
the Internal Revenue Code in effect as of December 31, 2008, as
described in Treasury Regulation §1.415(a)-1(g)(4). If additional
benefits are accrued for a member under this retirement system
after January 1, 2009, then the sum of the benefits described under the first sentence of this subdivision and benefits accrued for a
member after January 1, 2009, must satisfy the requirements of
Section 415, taking into account all applicable requirements of the
final 415 Treasury Regulations.
§16-5V-13. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this plan. This section applies to plan
years beginning after December 31, 1986. Notwithstanding anything
in the plan to the contrary, the payment of benefits under this
article shall be determined and made in accordance with Section
401(a)(9) of the Internal Revenue Code and its regulations. For
this purpose, the following provisions apply:
(a) The payment of benefits under the plan to any member shall
be distributed to him or her not later than the required beginning
date, or be distributed to him or her commencing not later than the
required beginning date, in accordance with regulations prescribed
under Section 401(a)(9) of the Internal Revenue Code, over the life
of the member or over the lives of the member and his or her
beneficiary or over a period not extending beyond the life
expectancy of the member and his or her beneficiary. Benefit
payments under this section shall not be delayed pending, or
contingent upon, receipt of an application for retirement from the
member.
(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire
interest in the plan has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the plan shall be
distributed by December 31 of the calendar year containing the
fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary, commencing on or before December 31 of the calendar
year immediately following the calendar year in which the member
died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§16-5V-14. Direct rollovers.
Notwithstanding any provision of this article to the contrary
that would otherwise limit a distributee's election under this
plan, a distributee may elect, at the time and in the manner
prescribed by the board, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover. For purposes of
this section, the following definitions apply:
(1) "Eligible rollover distribution" means 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
of the following: (A) 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 the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (B) any distribution to the extent the
distribution is required under Section 401(a)(9) of the Internal
Revenue Code; and (C) any hardship distribution described in
Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. 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 includable in gross income.
However, this portion may be paid only to an individual retirement
account or annuity described in Section 408(a) or (b) of the
Internal Revenue Code (including a Roth IRA described in Section 408A of the Internal Revenue Code), or to a qualified trust or to
an annuity contract described in Section 403(a) or (b) of the
Internal Revenue Code that agrees to separately account for amounts
transferred (including interest or earnings thereon), including
separately accounting for the portion of the distribution which is
includable in gross income and the portion of the distribution
which is not so includable.
(2) "Eligible retirement plan" means 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 from this plan, 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, a Roth IRA described in Section 408A 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,
or a qualified plan
described in Section 401(a) of the Internal Revenue Code that
accepts the distributee's eligible rollover distribution: Provided,
That in the case of an eligible rollover distribution
to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee'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 with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse. The term "distributee" also
includes a designated beneficiary (other than a surviving spouse)
as such term is defined in Section 402(c)(11) of the Internal
Revenue Code.
(4) "Direct rollover" means a payment by the plan to the
eligible retirement plan.
§16-5V-14a. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) Notwithstanding any provision of this article to the
contrary that would otherwise prohibit or limit rollovers and plan
transfers to this system, the plan shall accept the following
rollovers and plan transfers on behalf of a member solely for the
purpose of purchasing permissive service credit, in whole or in
part, as otherwise provided in this article or for the repayment of
withdrawn or refunded contributions, in whole and in part, with
respect to a previous forfeiture of service credit as otherwise
provided in this article: (A) One or more rollovers within the meaning of Section 408(d)(3) of the Internal Revenue Code from an
individual retirement account described in Section 408(a) of the
Internal Revenue Code or from an individual retirement annuity
described in Section 408(b) of the Internal Revenue Code; (B) one
or more rollovers described in Section 402(c) of the Internal
Revenue Code from a retirement plan that is qualified under Section
401(a) of the Internal Revenue Code or from a plan described in
Section 403(b) of the Internal Revenue Code; (C) one or more
rollovers described in Section 457(e)(16) of the Internal Revenue
Code from a governmental plan described in Section 457 of the
Internal Revenue Code; or (D) direct trustee-to-trustee transfers
or rollovers from a plan that is qualified under Section 401(a) of
the Internal Revenue Code, from a plan described in Section 403(b)
of the Internal Revenue Code or from a governmental plan described
in Section 457 of the Internal Revenue Code: Provided, That any
rollovers or transfers pursuant to this section shall be accepted
by the system only if made in cash or other asset permitted by the
board and only in accordance with such policies, practices and
procedures established by the board from time to time. For
purposes of this article, the following definitions and limitations
apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code:
Provided, That no more than five years of "nonqualified service
credit", as defined in Section 415(n)(3)(C) of the Internal Revenue
Code, may be included in the permissive service credit allowed to
be purchased (other than by means of a rollover or plan transfer),
and no nonqualified service credit may be included in any such
purchase (other than by means of a rollover or plan transfer)
before the member has at least five years of participation in the
retirement system.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit
previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(3) Any contribution (other than by means of a rollover or
plan transfer) to purchase permissive service credit under any
provision of this article must satisfy the special limitation rules
described in Section 415(n) of the Internal Revenue Code, and shall
be automatically reduced, limited or required to be paid over
multiple years if necessary to ensure such compliance. To the
extent any such purchased permissive service credit is qualified
military service within the meaning of Section 414(u) of the
Internal Revenue Code, the limitations of Section 415 of the Internal Revenue Code shall be applied to such purchase as
described in Section 414(u)(1)(B) of the Internal Revenue Code.
(4) For purposes of Section 415(b) of the Internal Revenue
Code, the annual benefit attributable to any rollover contribution
accepted pursuant to this section shall be determined in accordance
with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if
any, of the annuity payments attributable to any rollover
contribution provided under the retirement system over the annual
benefit so determined shall be taken into account when applying the
accrued benefit limitations of Section 415(b) of the Internal
Revenue Code and section twelve of this article.
(b) Nothing in this section may be construed as permitting
rollovers or transfers into this system or any other system
administered by the retirement board other than as specified in
this section and no rollover or transfer shall be accepted into the
system in an amount greater than the amount required for the
purchase of permissive service credit or repayment of withdrawn or
refunded contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or
refunded contributions except as otherwise permitted in this
article.
§16-5V-16. Retirement benefits
.
This section describes when adjustment of a member's accrued
benefit to reflect the difference in age, in years and months, between the member's annuity starting date and the date the member
attains normal retirement age shall be made. This age adjustment,
when required, shall be made based upon the normal form of benefit
and shall be the actuarial equivalent of the accrued benefit at the
member's normal retirement age. The member shall receive the age
adjusted retirement income in the normal form or in an actuarial
equivalent amount in an optional form as provided under this
article, subject to reduction if necessary to comply with the
maximum benefit provisions of Section 415 of the Internal Revenue
Code and section twelve of this article. The first day of the
calendar month following the month of birth shall be used in lieu
of any birth date that does not fall on the first day of a calendar
month.
(a) Normal retirement. -- A member whose annuity starting
date is the date the member attains normal retirement age, is
entitled to his or her accrued benefit without adjustment for age
at commencement.
(b) Early retirement. -- A member who ceases covered
employment and has attained early retirement age while in covered
employment may elect in writing by completion of an application for
retirement required by and submitted to the board, to receive
retirement income payments commencing on the first day of the month
coincident with or following the date the member ceases covered
employment and submits the proper application to the board.
"Normal retirement age" for such a member is the first day of the calendar month coincident with or next following the month in which
the member attains the age of fifty years. If the member's annuity
starting date is prior to the date the member attains normal
retirement age, his or her accrued benefit is reduced to the
actuarial equivalent benefit amount based on the years and months
by which his or her annuity starting date precedes the date he or
she attains normal retirement age.
(c) Late retirement. -- A member whose annuity starting date
is later than the date the member attains normal retirement age
shall receive retirement income payments in the normal form without
adjustment for age at commencement, which is the benefit to which
he or she is entitled according to his or her accrued benefit based
on his or her final average salary and credited service at the time
of his or her actual retirement and following the completion of an
application for retirement as required by the board.
(d) Retirement benefits shall be paid monthly in an amount
equal to one twelfth of the retirement income payments elected and
at those times established by the board. Notwithstanding any other
provision of the plan, a member who is married on the annuity
starting date will receive his or her retirement income payments in
the form of a sixty-six and two-thirds percent joint and survivor
annuity with his or her spouse unless prior to the annuity starting
date the spouse waives the form of benefit.
§16-5V-18. Refunds to certain members upon discharge or
resignation; deferred retirement; forfeitures.
(a) Any member who terminates covered employment and is not
eligible to receive disability benefits under this article is, by
written request filed with the board, entitled to receive from the
fund the member's accumulated contributions. Except as provided in
subsection (b) of this section, upon withdrawal, the member shall
forfeit his or her accrued benefit and cease to be a member.
(b) Any member who ceases employment in covered employment and
active participation in this plan and who thereafter becomes
reemployed in covered employment may not receive any credited
service for any prior withdrawn accumulated contributions from
either this plan or the Public Employees Retirement System unless
following his or her return to covered employment and active
participation in this plan, the member redeposits in the fund the
amount of the accumulated contributions withdrawn from previous
covered employment, together with interest on the accumulated
contributions at the rate determined by the board from the date of
withdrawal to the date of redeposit. Upon repayment he or she
shall receive the same credit on account of his or her former
covered employment as if no refund had been made.
The repayment authorized by this subsection shall be made in
a lump sum within sixty months of the emergency medical services
officer's reemployment in covered employment or, if later, within
sixty months of the effective date of this article.
(c) A member of this plan who has elected to transfer from the
Public Employees Retirement System into this plan pursuant to subsection (b), section six of this article may not, after having
transferred into and become an active member of this plan,
reinstate to his or her credit in this plan any service credit
relating to periods of nonemergency medical services officer
service withdrawn from the Public Employees Retirement System prior
to his or her elective transfer into this plan.
(d) Every member who completes sixty months of regular
contributory service may, upon cessation of covered employment,
either withdraw his or her accumulated contributions in accordance
with this section or choose not to withdraw his or her accumulated
contribution and receive retirement income payments, if eligible,
upon attaining early or normal retirement age.
(e) Notwithstanding any other provision of this article,
forfeitures under the plan may not be applied to increase the
benefits any member would otherwise receive under the plan.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Accumulated contributions" means all deposits and all
deductions from the gross salary of a contributor plus regular
interest.
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member.
(3) "Actuarially equivalent" or "of equal actuarial value"
means a benefit of equal value computed upon the basis of the
mortality table and interest rates as set and adopted by the
retirement board in accordance with the provisions of this article:
Provided, That when used in the context of compliance with the
federal maximum benefit requirements of Section 415 of the Internal
Revenue Code, "actuarially equivalent" shall be computed using the
mortality tables and interest rates required to comply with those
requirements.
(4) "Annuities" means the annual retirement payments for life
granted beneficiaries in accordance with this article.
(5) "Average final salary" means the average of the five
highest fiscal year salaries earned as a member within the last
fifteen fiscal years of total service credit, including military
service as provided in this article, or if total service is less
than fifteen years, the average annual salary for the period on
which contributions were made: Provided, That salaries for
determining benefits during any determination period may not exceed
the maximum compensation allowed as adjusted for cost of living in
accordance with section seven, article ten-d, chapter five of this
code and Section 401(a)(17) of the Internal Revenue Code.
(6) "Beneficiary" means the recipient of annuity payments made
under the retirement system.
(7) "Contributor" means a member of the retirement system who
has an account in the teachers accumulation fund.
(8) "Deposit" means a voluntary payment to his or her account
by a member.
(9) "Employer" means the agency of and within the state which
has employed or employs a member.
(10) "Employer error" means an omission, misrepresentation or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that
has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error.
(11) "Employment term" means employment for at least ten
months, a month being defined as twenty employment days.
(12) "Gross salary" means the fixed annual or periodic cash
wages paid by a participating public employer to a member for
performing duties for the participating public employer for which
the member was hired. Gross salary also includes retroactive
payments made to a member to correct a clerical error, or made
pursuant to a court order or final order of an administrative
agency charged with enforcing federal or state law pertaining to
the member's rights to employment or wages, with all retroactive
salary payments to be allocated to and considered paid in the
periods in which the work was or would have been done. Gross salary does not include lump sum payments for bonuses, early
retirement incentives, severance pay or any other fringe benefit of
any kind including, but not limited to, transportation allowances,
automobiles or automobile allowances, or lump sum payments for
unused, accrued leave of any type or character.
(13) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
(14) "Member" means any person who has accumulated
contributions standing to his or her credit in the State Teachers
Retirement System. A member shall remain a member until the
benefits to which he or she is entitled under this article are paid
or forfeited, or until cessation of membership pursuant to section
thirteen of this article.
(15) "Members of the administrative staff of the public
schools" means deans of instruction, deans of men, deans of women,
and financial and administrative secretaries.
(16) "Members of the extension staff of the public schools"
means every agricultural agent, boys' and girls' club agent and
every member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
(17) "New entrant" means a teacher who is not a present
teacher.
(18) "Nonteaching member" means any person, except a teacher
member, who is regularly employed for full-time service by: (A) Any
county board of education; (B) the State Board of Education; (C) the Higher Education Policy Commission; (D) the West Virginia
Council for Community and Technical College Education; or (E) a
governing board, as defined in section two, article one, chapter
eighteen-b of this code: Provided, That any person whose employment
with the Higher Education Policy Commission, the West Virginia
Council for Community and Technical College Education or a
governing board commences on or after July 1, 1991, is not
considered a nonteaching member.
(19) "Plan year" means the twelve-month period commencing on
July 1 and ending the following June 30 of any designated year.
(20) "Present member" means a present teacher who is a member
of the retirement system.
(21) "Present teacher" means any person who was a teacher
within the thirty-five years beginning July 1, 1934, and whose
membership in the retirement system is currently active.
(22) "Prior service" means all service as a teacher completed
prior to July 1, 1941, and all service of a present member who was
employed as a teacher, and did not contribute to a retirement
account because he or she was legally ineligible for membership
during the service.
(23) "Public schools" means all publicly supported schools,
including colleges and universities in this state.
(24) "Refund beneficiary" means the estate of a deceased
contributor or a person he or she has nominated as beneficiary of his or her contributions by written designation duly executed and
filed with the retirement board.
(25) "Refund interest" means interest compounded, according to
the formula established in legislative rules, series seven of the
Consolidated Public Retirement Board, 162 CSR 7.
(26) "Regular interest" means interest at four percent
compounded annually, or a higher earnable rate if set forth in the
formula established in legislative rules, series seven of the
Consolidated Public Retirement Board, 162 CSR 7.
(27) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay.
(28) "Required beginning date" means April 1 of the calendar
year following the later of: (A) The calendar year in which the
member attains age seventy and one-half years; or (B) the calendar
year in which the member retires or ceases covered employment under
the system after having attained the age of seventy and one-half
years.
(29) "Retirement system" means the State Teachers Retirement
System established by this article.
(30) "Teacher member" means the following persons, if
regularly employed for full-time service: (A) Any person employed
for instructional service in the public schools of West Virginia;
(B) principals; (C) public school librarians; (D) superintendents
of schools and assistant county superintendents of schools; (E) any county school attendance director holding a West Virginia teacher's
certificate; (F) the executive director of the retirement board;
(G) members of the research, extension, administrative or library
staffs of the public schools; (H) the State Superintendent of
Schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee under the state
superintendent performing services of an educational nature; (I)
employees of the State Board of Education who are performing
services of an educational nature; (J) any person employed in a
nonteaching capacity by the State Board of Education, any county
board of education, the State Department of Education or the State
Teachers Retirement Board, if that person was formerly employed as
a teacher in the public schools; (K) all classroom teachers,
principals and educational administrators in schools under the
supervision of the Division of Corrections, the Division of Health
or the Division of Human Services; (L) an employee of the State
Board of School Finance, if that person was formerly employed as a
teacher in the public schools; and (M) any person designated as a
21st Century Learner Fellow pursuant to section eleven, article
three, chapter eighteen-a of this code who elects to remain a
member of the State Teachers Retirement System provided in this
article.
(31) "Total service" means all service as a teacher while a
member of the retirement system since last becoming a member and,
in addition thereto, credit for prior service, if any.
Age in excess of seventy years shall be considered to be
seventy years.
§18-7A-14. Contributions by members; contributions by employers;
correction of errors; forfeitures.
(a) At the end of each month every member of the retirement
system shall contribute six percent of that member's monthly gross
salary to the retirement board: Provided, That any member employed
by a state institution of higher education shall contribute on the
member's full earnable compensation, unless otherwise provided in
section fourteen-a of this article. The sums are due the State
Teachers Retirement System at the end of each calendar month in
arrears and shall be paid not later than fifteen days following the
end of the calendar month. Each remittance shall be accompanied by
a detailed summary of the sums withheld from the compensation of
each member for that month on forms, either paper or electronic,
provided by the State Teachers Retirement System for that purpose.
(b) Annually, the contributions of each member shall be
credited to the member's account in the State Teachers Retirement
System Fund. The contributions shall be deducted from the salaries
of the members as prescribed in this section and every member shall
be considered to have given consent to the deductions. No
deductions, however, shall be made from the earnable compensation
of any member who retired because of age or service and then
resumed service unless as provided in section thirteen-a of this
article.
(c) The aggregate of employer contributions, due and payable
under this article, shall equal annually the total deductions from
the gross salary of members required by this section. Beginning
July 1, 1994, the rate shall be seven and one-half percent;
beginning on July 1, 1995, the rate shall be nine percent;
beginning on July 1, 1996, the rate shall be ten and one-half
percent; beginning on July 1, 1997, the rate shall be twelve
percent; beginning on July 1, 1998, the rate shall be thirteen and
one-half percent; and beginning on July 1, 1999, and thereafter,
the rate shall be fifteen percent: Provided, That the rate shall be
seven and one-half percent for any individual who becomes a member
of the State Teachers Retirement System for the first time on or
after July 1, 2005, or any individual who becomes a member of the
State Teachers Retirement System as a result of the voluntary
transfer contemplated in article seven-d of this chapter.
(d) Payment by an employer to a member of the sum specified
in the employment contract minus the amount of the employee's
deductions shall be considered to be a full discharge of the
employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the retirement board or
with the employer to be forwarded to the retirement board an
enrollment form showing the contributor's date of birth and other
data needed by the retirement board.
(f) If any change or employer error in the records of any
participating public employer or the retirement system results in any member receiving from the system more or less than he or she
would have been entitled to receive had the records been correct,
the board shall correct the error, and as far as is practicable
shall adjust the payment of the benefit in a manner that the
actuarial equivalent of the benefit to which the member was
correctly entitled shall be paid. Any employer error resulting in
an underpayment to the retirement system may be corrected by the
member remitting the required employee contribution and the
participating public employer remitting the required employer
contribution. Interest shall accumulate in accordance with the
legislative rule, Retirement Board Reinstatement Interest, 162 CSR
7, and any accumulating interest owed on the employee and employer
contributions resulting from the employer error shall be the
responsibility of the participating public employer. The
participating public employer may remit total payment and the
employee reimburse the participating public employer through
payroll deduction over a period equivalent to the time period
during which the employer error occurred.
(g) Notwithstanding any other provisions of this article,
forfeitures under the retirement system shall not be applied to
increase the benefits any member would otherwise receive under the
retirement system.
§18-7A-26. Computation of annuities.
(a) Annuitants whose annuities were approved by the retirement
board effective before July 1, 1980, shall be paid the annuities
which were approved by the retirement board.
(b) Annuities approved by the board effective after June 30,
1980, shall be computed as provided in this section.
(c) Upon establishment of eligibility for a retirement
allowance, a member shall be granted an annuity which shall be the
sum of the following, subject to reduction if necessary to comply
with the maximum benefit provisions of Section 415 of the Internal
Revenue Code and section twenty-eight-a of this article:
(1) Two percent of the member's average salary multiplied by
his or her total service credit as a teacher. In this subdivision
"average salary" means the average of the highest annual salaries
received by the member during any five years contained within his
or her last fifteen years of total service credit: Provided, That
the highest annual salary used in this calculation for certain
members employed by the West Virginia Higher Education Policy
Commission under its control shall be $4,800, as provided by
section fourteen-a of this article;
(2) The actuarial equivalent of the voluntary deposits of the
member in his or her individual account up to the time of his or
her retirement, with regular interest.
(d) The disability annuities of all teachers retired for
disability shall be based upon a disability table prepared by a
competent actuary approved by the board.
(e) Upon the death of an annuitant who qualified for an
annuity as the surviving spouse of an active member or because of
permanent disability, the estate of the deceased or beneficiary
designated for such purpose shall be paid the difference, if any,
between the member's contributions with regular interest thereon,
and the sum of the annuity payments. Upon the death of a spouse
who was named as the member's survivor, a retirant may elect an
annuity option approved by the board in an amount adjusted on a
fair basis to be of equal actuarial value as the annuity
prospectively in effect relative to the surviving member at the
time the new option is elected.
(f) All annuities shall be paid in twelve monthly payments.
In computing the monthly payments, fractions of a cent shall be
considered a cent. The monthly payments shall cease with the
payment for the month within which the beneficiary dies, and shall
begin with the payment for the month succeeding the month within
which the annuitant became eligible under this article for the
annuity granted; in no case, however, shall an annuitant receive
more than four monthly payments which are retroactive after the
board receives his or her application for annuity. The monthly
payments shall be made on the twenty-fifth day of each month,
except the month of December, when the payment shall be made on
December 18. If the date of payment falls on a holiday, Saturday
or Sunday, then the payment shall be made on the preceding workday.
(g) In case the retirement board receives data affecting the
approved annuity of a retired teacher, the annuity shall be changed
in accordance with the data, the change being effective with the
payment for the month within which the board received the new data.
(h) Any person who has attained the age of sixty-five and who
has served at least twenty-five years as a teacher prior to July 1,
1941, is eligible for prior service credit and for prior service
pensions as prescribed in this section.
§18-7A-26r. Minimum benefit for certain retired members;
legislative declaration; state interest and public
purpose.
The Legislature hereby finds and declares that an important
state interest exists in providing a minimum retirement annuity for
certain retired members who are credited with twenty or more years
of total service; that such program constitutes a public purpose;
and that the exclusion of total service for certain employees of
institutions of higher education is a reasonable and equitable
exclusion for purposes of determining eligibility for such minimum
benefits.
If the retirement annuity of a retired member (or if
applicable, a spouse thereof) with at least twenty years of total
service is less than $500 per month (including any supplemental or
additional benefits provided by this article), then the monthly
retirement annuity for any such retired member shall be increased
to $500 per month: Provided, That any year of service while an employee of an institution of higher education shall not be taken
into account for purposes of this section if his or her salary is
capped under the retirement system at $4,800 per year pursuant to
section fourteen-a of this article.
The payment of any minimum benefit under this section shall
be in lieu of, and not in addition to, the payments of any
retirement annuity or supplemental or additional benefits otherwise
provided by this article: Provided, That the minimum benefit
provided herein shall be subject to any limitations thereon under
§415 of the Internal Revenue Code of 1986, as the same may be
amended, and section twenty-eight-a of this article.
Any minimum benefit conferred herein shall not be retroactive
to the time of retirement and shall apply only to members who have
retired prior to the effective date of this section, or, if
applicable, to beneficiaries receiving benefits under the
retirement system prior to the effective date.
The minimum benefit provided herein shall be subject to a
recommendation by the Governor for such minimum benefit through the
delivery of an executive message to the Legislature and an
appropriation by the Legislature for such minimum benefit, such
appropriation to be made over a continuous six-year period
following the effective date of this section.
§18-7A-28a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code
and regulations under that section to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 dollar limitation(s)"), so that the annual
benefit payable under this system to a member shall not exceed
those limitations. Any annual benefit payable under this system
shall be reduced or limited if necessary to an amount which does
not exceed those limitations. The extent to which any annuity or
other annual benefit payable under this retirement system shall be
reduced, as compared with the extent to which an annuity,
contributions or other benefits under any other defined benefit
plans or defined contribution plans required to be taken into
consideration under Section 415 of the Internal Revenue Code shall
be reduced, shall be proportional on a percentage basis to the
reductions made in such other plans administered by the board and
required to be so taken into consideration under Section 415,
unless a disproportionate reduction is determined by the board to
maximize the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members of any additional limitation on the annuities or
other annual benefit required by this section. For purposes of the
415 limitations, the "limitation year" shall be the calendar year.
The 415 limitations are incorporated herein by reference, except to
the extent the following provisions may modify the default
provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a
retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement
system shall in no event be greater than the limit applicable at
the annuity starting date, as increased in subsequent years
pursuant to Section 415(d) of the Internal Revenue Code and the
regulations thereunder.
(b) For purposes of this section, the "annual benefit" means
a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in
a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the
form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as
increased in subsequent years pursuant to Section 415(d) of the
Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits
paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially
equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the
greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five percent
interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or
any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the
member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subdivision (c) of this section. In this case, the
actuarially equivalent straight life annuity shall be determined as
follows: The actuarially equivalent straight life annuity is equal
to the greatest of: (1) The annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit, computed using the interest rate specified in this retirement
system and the mortality table (or other tabular factor) specified
in this retirement system for adjusting benefits in the same form;
(2) the annual amount of the straight life annuity commencing at
the same annuity starting date that has the same actuarial present
value as the member's form of benefit, computed using a five and a
half percent interest rate assumption and the applicable mortality
table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue
Ruling 2001-62 or any subsequent Revenue Ruling modifying the
applicable provisions of Revenue Ruling 2001-62) for that annuity
starting date; and (3) the annual amount of the straight life
annuity commencing at the same annuity starting date that has the
same actuarial present value as the member's form of benefit,
computed using the applicable interest rate defined in Treasury
Regulation §1.417(e)-1(d)(3) and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality
table specified in Revenue Ruling 2001-62 or any subsequent Revenue
Ruling modifying the applicable provisions of Revenue Ruling
2001-62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in paragraphs (2) and (3) of this
subdivision, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted
pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in paragraph (1) of this
subdivision shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A
qualified participant for this purpose is a participant in a
defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into
account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a
full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the
defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in paragraph (1) of this
subdivision shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement system (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal
Revenue Code and subdivision (e) of this section) shall be reduced
by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in
the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(g) The application of the provisions of this section shall
not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions, regulations and other published guidance relating to Section 415 of
the Internal Revenue Code in effect as of December 31, 2008, as
described in Treasury Regulation §1.415(a)-1(g)(4). If additional
benefits are accrued for a member under this retirement system
after January 1, 2009, then the sum of the benefits described under
the first sentence of this subdivision and benefits accrued for a
member after January 1, 2009, must satisfy the requirements of
Section 415, taking into account all applicable requirements of the
final 415 Treasury Regulations.
§18-7A-28b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this retirement system. This section
applies to plan years beginning after December 31, 1986.
Notwithstanding anything in the retirement system to the contrary,
the payment of benefits under this article shall be determined and
made in accordance with Section 401(a)(9) of the Internal Revenue
Code and the regulations thereunder. For this purpose, the
following provisions apply:
(a) The payment of benefits under the retirement system to any
member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
regulations prescribed under Section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending
beyond the life expectancy of the member and his or her
beneficiary. Benefit payments under this section shall not be
delayed pending, or contingent upon, receipt of an application for
retirement from the member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system
shall be distributed by December 31 of the calendar year containing
the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life or over a period certain
not greater than the life expectancy of the beneficiary commencing
on or before December 31 of the calendar year immediately following
the calendar year in which the member died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall not be earlier than
the later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§18-7A-28c. Direct rollovers.
(a) Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this system, a distributee may
elect, at the time and in the manner prescribed by the board, to
have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a
direct rollover. For purposes of this section, the following
definitions apply:
(1) "Eligible rollover distribution" means 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 of the following: (A) 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 the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (B) any distribution
to the extent the distribution is required under Section 401(a)(9)
of the Internal Revenue Code; (C) the portion of any distribution that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; and (D) any hardship distribution described in
Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For
distributions after December 31, 2001, 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 includable in gross income. However, this portion
may be paid only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Internal Revenue Code, or
(for taxable years beginning before January 1, 2007) to a qualified
trust which is part of a defined contribution plan described in
Section 401(a) or (for taxable years beginning after December 31,
2006) to a qualified trust or to an annuity contract described in
Section 403(a) or (b) of the Internal Revenue Code that agrees to
separately account for amounts transferred (including interest or
earnings thereon), including separately accounting for the portion
of the distribution which is includable in gross income and the
portion of the distribution which is not so includable, or (for
taxable years beginning after December 31, 2007) to a Roth IRA
described in Section 408A the Internal Revenue Code.
(2) "Eligible retirement plan" means 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, or a qualified plan described in
Section 401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 31, 2001, an eligible retirement
plan also means an annuity contract described in Section 403(b) of
the Internal Revenue Code and 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 the plan from this
system. For distributions after December 31, 2007, an eligible
retirement plan also means a Roth IRA described in Section 408A of
the Internal Revenue Code: Provided, however, That in the case of
an eligible rollover distribution after December 31, 2007, to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee'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, as
applicable to governmental plans, are distributees with regard to
the interest of the spouse or former spouse. For distributions
after December 31, 2007, "distributee" also includes a designated
beneficiary (other than a surviving spouse) as such term is defined
in Section 402(c)(11) of the Internal Revenue Code.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other retirement system
administered by the board.
§18-7A-28d. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) This section applies to rollovers and transfers as
specified in this section made on or after January 1, 2002.
Notwithstanding any provision of this article to the contrary that
would otherwise prohibit or limit rollovers and plan transfers to
this system, the retirement system shall accept the following
rollovers and plan transfers on behalf of a member solely for the
purpose of purchasing permissive service credit, in whole or in
part, as otherwise provided in this article or for the repayment of
withdrawn or refunded contributions, in whole or in part, with
respect to a previous forfeiture of service credit as otherwise
provided in this article: (i) One or more rollovers within the meaning of Section 408(d)(3) of the Internal Revenue Code from an
individual retirement account described in Section 408(a) of the
Internal Revenue Code or from an individual retirement annuity
described in Section 408(b) of the Internal Revenue Code; (ii) one
or more rollovers described in Section 402(c) of the Internal
Revenue Code from a retirement plan that is qualified under Section
401(a) of the Internal Revenue Code or from a plan described in
Section 403(b) of the Internal Revenue Code; (iii) one or more
rollovers described in Section 457(e)(16) of the Internal Revenue
Code from a governmental plan described in Section 457 of the
Internal Revenue Code; or (iv) direct trustee-to-trustee transfers
or rollovers from a plan that is qualified under Section 401(a) of
the Internal Revenue Code, from a plan described in Section 403(b)
of the Internal Revenue Code or from a governmental plan described
in Section 457 of the Internal Revenue Code: Provided, That any
rollovers or transfers pursuant to this section shall be accepted
by the system only if made in cash or other asset permitted by the
board and only in accordance with the policies, practices and
procedures established by the board from time to time. For
purposes of this article, the following definitions and limitations
apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code:
Provided, That no more than five years of "nonqualified service
credit", as defined in Section 415(n)(3)(C) of the Internal Revenue
Code, may be included in the permissive service credit allowed to
be purchased (other than by means of a rollover or plan transfer),
and no nonqualified service credit may be included in any such
purchase (other than by means of a rollover or plan transfer)
before the member has at least five years of participation in the
retirement system.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit
previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(3) Any contribution (other than by means of a rollover or
plan transfer) to purchase permissive service credit under any
provision of this article must satisfy the special limitation rules
described in Section 415(n) of the Internal Revenue Code, and shall
be automatically reduced, limited or required to be paid over
multiple years if necessary to ensure such compliance. To the
extent any such purchased permissive service credit is qualified
military service within the meaning of Section 414(u) of the
Internal Revenue Code, the limitations of Section 415 of the Internal Revenue Code shall be applied to such purchase as
described in Section 414(u)(1)(B) of the Internal Revenue Code.
(4) For purposes of Section 415(b) of the Internal Revenue
Code, the annual benefit attributable to any rollover contribution
accepted pursuant to this section shall be determined in accordance
with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if
any, of the annuity payments attributable to any rollover
contribution provided under the retirement system over the annual
benefit so determined shall be taken into account when applying the
accrued benefit limitations of Section 415(b) of the Internal
Revenue Code and section twenty-eight-a of this article.
(b) Nothing in this section shall be construed as permitting
rollovers or transfers into this system or any other system
administered by the retirement board other than as specified in
this section and no rollover or transfer shall be accepted into the
system in an amount greater than the amount required for the
purchase of permissive service credit or repayment of withdrawn or
refunded contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or
refunded contributions except as otherwise permitted in this
article.
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Annual addition" means, for purposes of the limitations
under Section 415(c) of the Internal Revenue Code, the sum credited
to a member's account for any limitation year of: (A) Employer
contributions; (B) employee contributions; and (C) forfeitures.
Repayment of cashouts or contributions as described in Section
415(k)(3) of the Internal Revenue Code, rollover contributions and
picked-up employee contributions to a defined benefit plan shall
not be treated as annual additions, consistent with the
requirements of Treasury Regulation §1.415(c)-1.
(2) "Annuity account" or "annuity" means an account
established for each member to record the deposit of member
contributions and employer contributions and interest, dividends or
other accumulations credited on behalf of the member;
(3) "Compensation" means the full compensation actually
received by members for service whether or not a part of the
compensation is received from other funds, federal or otherwise,
than those provided by the state or its subdivisions: Provided,
That annual compensation for determining contributions during any
determination period may not exceed the maximum compensation
allowed as adjusted for cost-of-living in accordance with section
seven, article ten-d, chapter five of this code and Section
401(a)(17) of the Internal Revenue Code: Provided, however, That
solely for purposes of applying the limitations of Section 415 of the Internal Revenue Code to any annual addition, "compensation"
shall have the meaning given it in subsection (d), section thirteen
of this article.
(4) "Consolidated board" or "board" means the Consolidated
Public Retirement Board created and established pursuant to article
ten-d, chapter five of this code;
(5) "Defined contribution system" or "system" means the
Teachers' Defined Contribution Retirement System created and
established by this article;
(6) "Employer" means the agency of and within the State of
West Virginia which has employed or employs a member;
(7) "Employer contribution" means an amount deposited into the
member's individual annuity account on a periodic basis coinciding
with the employee's regular pay period by an employer from its own
funds;
(8) "Existing employer" means any employer who employed or
employs a member of the existing retirement system;
(9) "Existing retirement system" means the State Teachers
Retirement System established in article seven-a of this chapter;
(10) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended;
(11) "Member" or "employee" means the following persons, if
regularly employed for full-time service: (A) Any person employed
for instructional service in the public schools of West Virginia;
(B) principals; (C) public school librarians; (D) superintendents of schools and assistant county superintendents of schools; (E) any
county school attendance director holding a West Virginia teacher's
certificate; (F) members of the research, extension, administrative
or library staffs of the public schools; (G) the State
Superintendent of Schools, heads and assistant heads of the
divisions under his or her supervision, or any other employee under
the state superintendent performing services of an educational
nature; (H) employees of the State Board of Education who are
performing services of an educational nature; (I) any person
employed in a nonteaching capacity by the State Board of Education,
any county board of education or the State Department of Education
if that person was formerly employed as a teacher in the public
schools; (J) all classroom teachers, principals and educational
administrators in schools under the supervision of the Division of
Corrections and the Department of Health and Human Resources; (K)
any person who is regularly employed for full-time service by any
county board of education or the State Board of Education; (L) the
administrative staff of the public schools including deans of
instruction, deans of men and deans of women, and financial and
administrative secretaries; and (M) any person designated as a 21st
Century Learner Fellow pursuant to section eleven, article three,
chapter eighteen-a of this code who elects to remain a member of
the Teachers' Defined Contribution Retirement System established by
this article;
(12) "Member contribution" means an amount reduced from the
employee's regular pay periods, and deposited into the member's
individual annuity account within the Teachers' Defined
Contribution Retirement System;
(13) "Permanent, total disability" means a mental or physical
incapacity requiring absence from employment service for at least
six months: Provided, That the incapacity is shown by an
examination by a physician or physicians selected by the board:
Provided, however, That for employees hired on or after July 1,
2005, permanent, total disability means an inability to engage in
substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death, or has lasted or can be expected to last for a
continuous period of not less than twelve months and the incapacity
is so severe that the member is likely to be permanently unable to
perform the duties of the position the member occupied immediately
prior to his or her disabling injury or illness;
(14) "Plan year" means the twelve-month period commencing on
July 1 of any designated year and ending on the following June 30;
(15) "Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state;
(16) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay;
(17) "Required beginning date" means April 1 of the calendar
year following the later of: (a) The calendar year in which the
member attains age seventy and one-half years;
or (b) the calendar
year in which the member retires or otherwise ceases employment
with a participating employer after having attained the age of
seventy and one-half years;
(18) "Retirement" means a member's withdrawal from the active
employment of a participating employer and completion of all
conditions precedent to retirement;
(19) "Year of employment service" means employment for at
least ten months, a month being defined as twenty employment days:
Provided, That no more than one year of service may be accumulated
in any twelve-month period.
§18-7B-12a. Federal minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this defined contribution system. This
section applies to plan years beginning after December 31, 1986.
Notwithstanding anything in this system to the contrary, the
payment of benefits under this article shall be determined and made
in accordance with Section 401(a)(9) of the Internal Revenue Code
and the regulations thereunder, including without limitation the
incidental death benefit provisions of Section 401(a)(9)(G) of the
Internal Revenue Code and the regulations thereunder. For this
purpose, the following provisions apply:
(a) The payment of benefits under the defined contribution
system to any member shall be distributed to him or her not later
than the required beginning date, or be distributed to him or her
commencing not later than the required beginning date, in
accordance with regulations prescribed under Section 401(a)(9) of
the Internal Revenue Code, over the life of the member or over the
lives of the member and his or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
beneficiary. Benefit payments under this section shall not be
delayed pending, or contingent upon, receipt of an application for
retirement from the member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the system has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the system shall be
distributed by December 31 of the calendar year containing the
fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before December 31 of the calendar year immediately following the calendar year in which the
participant died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half years; or
(B) The earlier of: (i) December 31 of the calendar year in
which the member died; or (ii) December 31 of the calendar year
following the calendar year in which the spouse died.
(d) For purposes of this section, any amount paid to a child
of a member will be treated as if it had been paid to the surviving
spouse of the member if the remaining amount becomes payable to the
surviving spouse when the child reaches the age of majority.
§18-7B-13. Amount of annuity payments; federal law maximum benefit
limitations.
(a) The amount of annuity payments a retired member shall
receive shall be based solely upon the balance in the member's
annuity account at the date of retirement, the retirement option
selected, or in the event of an annuity option being selected, the
actuarial life expectancy of the member and such other factors as
normally govern annuity payments.
(b) The board, or its designee, is authorized upon retirement
of a member, with the approval of that member, to purchase an
annuity with the balance of the member's account. Upon delivery of the annuity to the member upon his or her retirement, the member
shall execute a release surrendering any claim the member may have
against the retirement trust.
(c)
Notwithstanding any other provision of this article or
state law, the board shall administer the retirement system in
compliance with the limitations of Section 415 of the Internal
Revenue Code (as such limitations are adjusted for cost of living
in accordance with Section 415(d) of the Internal Revenue Code) and
Treasury Regulations thereunder to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 annual addition limitation(s)") so that an
annual addition made
under this system shall not exceed those
limitations. Any annual addition made under this system shall be
reduced or limited if necessary to an amount which does not exceed
those limitations. The extent to which an annual addition under
this retirement system shall be reduced, as compared to the extent
which an annual addition under any other defined benefit plans or
defined contribution plans required to be taken into consideration
under Section 415 of the Internal Revenue Code shall be reduced,
shall be proportional on a percentage basis to the reductions made
in such other plans administered by the board and required to be so
taken into consideration under Section 415, unless a
disproportionate reduction is determined by the board to maximize
the aggregate benefits payable to the member. If the reduction is
under this retirement system, the board shall advise affected members of any additional limitation on the annual addition
required by this section
.
The 415 limitations shall apply as if
the total annual additions under all defined contribution plans in
which a member has been a member were payable from one plan for any
member who has at any time been a member in any other defined
contribution plan maintained by the member's participating
employer. For purposes of the 415 limitations, the "limitation
year" shall be the calendar year.
(d)
Solely for purposes of calculating and applying the 415
limitations, a member's compensation for a limitation year is
defined to be wages within the meaning of Section 3401(a) of the
Internal Revenue Code (including amounts that would be included in
wages but for an election under Section 125(a), 132(f)(4),
402(e)(3), 402(h)(1)(B), 402(k) or 457(b) of the Internal Revenue
Code), plus all other payments of compensation to a member by a
participating employer (in the course of the employer's trade or
business) for which the employer is required to furnish the
employee a written statement under Sections 6041(d), 6051(a)(3) and
6052 of the Internal Revenue Code, and determined without regard to
any rules that limit the remuneration included in wages based upon
the nature or location of employment or services performed. In
addition:
(1) For limitation years beginning on or after January 1,
2009, compensation for a limitation year shall also include:
(A) Compensation paid by the later of two and one-half months
after a member's severance from employment with the employer or the
end of the limitation year that includes the date of the member's
severance from employment with the employer maintaining the plan,
if the payment is regular compensation for services during the
member's regular working hours, or compensation for services
outside the employee's regular working hours (such as overtime or
shift differential), commissions, bonuses, or other similar
payments and, absent a severance from employment, the payments
would have been paid to the member while the member continued in
employment with the employer;
(B) Back pay, within the meaning of Treasury Regulation
§1.415(c)-2(g)(8), for the limitation year to which the back pay
relates, but only to the extent the back pay represents wages and
compensation that would otherwise be included in compensation under
this definition; and
(C) For an employee in qualified military service (within the
meaning of Section 414(u)(5) of the Internal Revenue Code),
compensation such employee would have received during such period
if the employee were not in qualified military service, to the
extent required pursuant to Section 414(u)(7) of the Internal
Revenue Code.
(2) For limitation years beginning on or after January 1,
2009, compensation for a limitation year may not exceed the maximum
compensation allowed as adjusted for cost of living in accordance with section seven, article ten-d, chapter five of this code and
Section 401(a)(17) of the Internal Revenue Code.
§18-7B-13b. Direct rollovers.
(a) Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this system, a distributee may
elect, at the time and in the manner prescribed by the board, to
have any portion of an eligible rollover distribution that is equal
to at least $500 paid directly to an eligible retirement plan
specified by the distributee in a direct rollover. For purposes of
this section, the following definitions apply:
(1) "Eligible rollover distribution" means 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
of the following: (i) 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 the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (ii) any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer securities; (iv) any hardship distribution described in Section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other
distribution or distributions reasonably expected to total less
than $200 during a year. For distributions after December 31,
2001, 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 includable in gross
income. However, this portion may be paid only to an individual
retirement account or annuity described in Section 408(a) or (b) of
the Internal Revenue Code, or (for taxable years beginning before
January 1, 2007) to a qualified trust which is part of a defined
contribution plan described in Section 401(a) or
(for taxable years
beginning after December 31, 2006) to a qualified trust or to an
annuity contract described in Section 403(a) or (b) of the Internal
Revenue Code that agrees to separately account for amounts
transferred (including interest or earnings thereon), including
separately accounting for the portion of the distribution which is
includable in gross income and the portion of the distribution
which is not so includable, or (for taxable years beginning after
December 31, 2007) to a Roth IRA described in Section 408A of the
Internal Revenue Code
.
(2) "Eligible retirement plan" means 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 or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 31, 2001, an eligible retirement
plan shall also mean an annuity contract described in Section
403(b) of the Internal Revenue Code and 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 the
plan from this system. For distributions after December 31, 2007,
an eligible retirement plan also means a Roth IRA described in
Section 408A of the Internal Revenue Code: Provided, That in the
case of an eligible rollover distribution after December 31, 2007,
to a designated beneficiary (other than a surviving spouse) as such
term is defined in Section 402(c)(11) of the Internal Revenue Code,
an eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee'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 with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse. For distributions after December
31, 2007, "distributee" also includes a designated beneficiary
(other than a surviving spouse) as such term is defined in Section
402(c)(11) of the Internal Revenue Code.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this retirement system or any other retirement
system administered by the board.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-1a. Definitions.
(a) As used in this article, the term "judge", "judge of any
court of record" or "judge of any court of record of this state"
means, refers to and includes judges of the several circuit courts
and justices of the Supreme Court of Appeals. For purposes of this
article, the terms do not mean, refer to or include family court
judges.
(b) "Actuarially equivalent" or "of equal actuarial value"
means a benefit of equal value computed upon the basis of the
mortality table and interest rates as set and adopted by the
retirement board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the
federal maximum benefit requirements of Section 415 of the Internal
Revenue Code, "actuarially equivalent" shall be computed using the
mortality tables and interest rates required to comply with those
requirements.
(c) "Beneficiary" means any person, except a member, who is
entitled to an annuity or other benefit payable by the retirement
system.
(d) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(e) "Final average salary" means the average of the highest
thirty-six consecutive months' compensation received by the member
as a judge of any court of record of this state.
(f) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
(g) "Member" means a judge participating in this system.
(h) "Plan year" means the twelve-month period commencing on
July 1 of any designated year and ending the following June 30.
(i) "Required beginning date" means April 1 of the calendar
year following the later of: (i) The calendar year in which the
member attains age seventy and one-half; or (ii) the calendar year
in which the member retires or otherwise separates from covered
employment.
(j) "Retirement system" or "system" means the Judges'
Retirement System created and established by this article. Notwithstanding any other provision of law to the contrary, the
provisions of this article are applicable only to circuit judges
and justices of the Supreme Court of Appeals in the manner
specified in this article. No service as a family court judge may
be construed to qualify a person to participate in the Judges'
Retirement System or used in any manner as credit toward
eligibility for retirement benefits under the Judges' Retirement
System.
§51-9-12a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and regulations under that section, to the extent applicable to
governmental plans (hereafter sometimes referred to as the "415
limitation(s)" or "415 dollar limitation(s)"), so that the annual
benefit payable under this system to a member shall not exceed
those limitations. Any annual benefit payable under this system
shall be reduced or limited if necessary to an amount which does
not exceed those limitations. The extent to which any annuity or
other annual benefit payable under this retirement system shall be
reduced as compared with the extent to which an annuity,
contributions or other benefits under any other defined benefit
plans or defined contribution plans required to be taken into
consideration under Section 415 of the Internal Revenue Code shall
be reduced, shall be proportional on a percentage basis to the reductions made in such other plans administered by the board and
required to be so taken into consideration under Section 415,
unless a disproportionate reduction is determined by the board to
maximize the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members of any additional limitation on the annuities or
other annual benefit required by this section. For purposes of the
415 limitations, the "limitation year" shall be the calendar year.
The 415 limitations are incorporated herein by reference, except to
the extent the following provisions may modify the default
provisions thereunder:
(a) The annual adjustment to the 415 dollar limitations made
by Section 415(d) of the Internal Revenue Code and the regulations
thereunder shall apply for each limitation year. The annual
adjustments to the dollar limitations under Section 415(d) of the
Internal Revenue Code which become effective: (i) After a
retirant's severance from employment with the employer; or (ii)
after the annuity starting date in the case of a retirant who has
already commenced receiving benefits, will apply with respect to a
retirant's annual benefit in any limitation year. A retirant's
annual benefit payable in any limitation year from this retirement
system shall in no event be greater than the limit applicable at
the annuity starting date, as increased in subsequent years
pursuant to Section 415(d) of the Internal Revenue Code and the
regulations thereunder.
(b) For purposes of this section, the "annual benefit" means
a benefit that is payable annually in the form of a straight life
annuity. Except as provided below, where a benefit is payable in
a form other than a straight life annuity, the benefit shall be
adjusted to an actuarially equivalent straight life annuity that
begins at the same time as such other form of benefit, using
factors prescribed in the 415 limitation regulations, before
applying the 415 limitations. No actuarial adjustment to the
benefit shall be made for: (1) Survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to
the extent such benefits would not be payable if the member's
benefit were paid in another form; (2) benefits that are not
directly related to retirement benefits (such as a qualified
disability benefit, preretirement incidental death benefits and
post-retirement medical benefits); or (3) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the
form of benefit is not subject to Section 417(e)(3) of the Internal
Revenue Code and would otherwise satisfy the limitations of this
article, and the plan provides that the amount payable under the
form of benefit in any limitation year shall not exceed the limits
of this article applicable at the annuity starting date, as
increased in subsequent years pursuant to Section 415(d) of the
Internal Revenue Code. For this purpose an automatic benefit
increase feature is included in a form of benefit if the form of
benefit provides for automatic, periodic increases to the benefits paid in that form.
(c) Adjustment for benefit forms not subject to Section
417(e)(3). -- The straight life annuity that is actuarially
equivalent to the member's form of benefit shall be determined
under this subsection if the form of the member's benefit is
either: (1) A nondecreasing annuity (other than a straight life
annuity) payable for a period of not less than the life of the
member (or, in the case of a qualified preretirement survivor
annuity, the life of the surviving spouse); or (2) an annuity that
decreases during the life of the member merely because of: (i) The
death of the survivor annuitant (but only if the reduction is not
below fifty percent of the benefit payable before the death of the
survivor annuitant); or (ii) the cessation or reduction of Social
Security supplements or qualified disability payments (as defined
in Section 411(a)(9) of the Internal Revenue Code). The
actuarially equivalent straight life annuity is equal to the
greater of: (I) The annual amount of the straight life annuity (if
any) payable to the member under the plan commencing at the same
annuity starting date as the member's form of benefit; and (II) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five percent
interest rate assumption and the applicable mortality table defined
in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions
of Revenue Ruling 2001-62) for that annuity starting date.
(d) Adjustment for benefit forms subject to Section 417(e)(3).
-- The straight life annuity that is actuarially equivalent to the
member's form of benefit shall be determined under this subsection
if the form of the member's benefit is other than a benefit form
described in subdivision (c) of this section. The actuarially
equivalent straight life annuity shall be determined as follows:
The actuarially equivalent straight life annuity is equal to the
greatest of: (1) The annual amount of the straight life annuity
commencing at the same annuity starting date that has the same
actuarial present value as the member's form of benefit, computed
using the interest rate specified in this retirement system and the
mortality table (or other tabular factor) specified in this
retirement system for adjusting benefits in the same form; (2) the
annual amount of the straight life annuity commencing at the same
annuity starting date that has the same actuarial present value as
the member's form of benefit, computed using a five and a half
percent interest rate assumption and the applicable mortality table
defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling
2001-62 or any subsequent Revenue Ruling modifying the applicable
provisions of Revenue Ruling 2001-62) for that annuity starting
date; and (3) the annual amount of the straight life annuity
commencing at the same annuity starting date that has the same
actuarial present value as the member's form of benefit, computed using the applicable interest rate defined in Treasury Regulation
§1.417(e)-1(d)(3) and the applicable mortality table defined in
Treasury Regulation §1.417(e)-1(d)(2) (the mortality table
specified in Revenue Ruling 2001-62 or any subsequent Revenue
Ruling modifying the applicable provisions of Revenue Ruling 2001-
62), divided by 1.05.
(e) Benefits payable prior to age sixty-two. --
(1) Except as provided in paragraphs (2) and (3) of this
subdivision, if the member's retirement benefits become payable
before age sixty-two, the 415 dollar limitation prescribed by this
section shall be reduced in accordance with regulations issued by
the Secretary of the Treasury pursuant to the provisions of Section
415(b) of the Internal Revenue Code, so that the limitation (as so
reduced) equals an annual straight life benefit (when the
retirement income benefit begins) which is equivalent to an annual
benefit in the amount of the applicable dollar limitation of
Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted
pursuant to Section 415(d) of the Internal Revenue Code) beginning
at age sixty-two.
(2) The limitation reduction provided in paragraph (1) of this
subdivision shall not apply if the member commencing retirement
benefits before age sixty-two is a qualified participant. A
qualified participant for this purpose is a participant in a
defined benefit plan maintained by a state, or any political
subdivision of a state, with respect to whom the service taken into account in determining the amount of the benefit under the defined
benefit plan includes at least fifteen years of service: (i) As a
full-time employee of any police or fire department organized and
operated by the state or political subdivision maintaining the
defined benefit plan to provide police protection, fire-fighting
services or emergency medical services for any area within the
jurisdiction of such state or political subdivision; or (ii) as a
member of the armed forces of the United States.
(3) The limitation reduction provided in paragraph (1) of this
subdivision shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(4) For purposes of adjusting the 415 dollar limitation for
benefit commencement before age sixty-two or after age sixty-five
(if the plan provides for such adjustment), no adjustment is made
to reflect the probability of a member's death: (i) After the
annuity starting date and before age sixty-two; or (ii) after age
sixty-five and before the annuity starting date.
(f) Adjustment when member has less than ten years of
participation. -- In the case of a member who has less than ten
years of participation in the retirement system (within the meaning
of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar
limitation (as adjusted pursuant to Section 415(d) of the Internal
Revenue Code and subdivision (e) of this section) shall be reduced
by multiplying the otherwise applicable limitation by a fraction,
the numerator of which is the number of years of participation in the plan (or one, if greater), and the denominator of which is ten.
This adjustment shall not be applicable to preretirement disability
benefits or preretirement death benefits.
(g) The application of the provisions of this section shall
not cause the maximum annual benefit provided to a member to be
less than the member's accrued benefit as of December 31, 2008 (the
end of the limitation year that is immediately prior to the
effective date of the final regulations for this retirement system
as defined in Treasury Regulation §1.415(a)-1(g)(2)), under
provisions of the retirement system that were both adopted and in
effect before April 5, 2007, provided that such provisions
satisfied the applicable requirements of statutory provisions,
regulations, and other published guidance relating to Section 415
of the Internal Revenue Code in effect as of December 31, 2008, as
described in Treasury Regulation §1.415(a)-1(g)(4). If additional
benefits are accrued for a member under this retirement system
after January 1, 2009, then the sum of the benefits described under
the first sentence of this subdivision and benefits accrued for a
member after January 1, 2009, must satisfy the requirements of
Section 415, taking into account all applicable requirements of the
final 415 Treasury Regulations.
§51-9-12b. Federal minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiaries' interest and take precedence over any
inconsistent provisions of this retirement system. This section applies to plan years beginning after December 31, 1986.
Notwithstanding anything in the retirement system to the contrary,
the payment of benefits under this article shall be determined and
made in accordance with Section 401(a)(9) of the Internal Revenue
Code and the regulations thereunder. For this purpose, the
following provisions apply:
(a) The payment of benefits under the retirement system to any
member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
Treasury Regulations prescribed under Section 401(a)(9) of the
Internal Revenue Code, over the life of the member or over the
lives of the member and his or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
beneficiary. Benefit payments under this section shall not be
delayed pending, or contingent upon, receipt of an application for
retirement from the member.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system shall be distributed by December 31 of the calendar year containing
the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before December 31 of the calendar
year immediately following the calendar year in which the member
died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) December 31 of the calendar year in which the member would
have attained age seventy and one-half; or
(B) The earlier of: (i) December 31 of the calendar year
following the calendar year in which the member died; or (ii)
December 31 of the calendar year following the calendar year in
which the spouse died.
§51-9-12c. Direct rollovers.
(a) Except where otherwise stated, this section applies to
distributions made on or after January 1, 1993. Notwithstanding
any provision of this article to the contrary that would otherwise
limit a distributee's election under this system, a distributee may
elect, at the time and in the manner prescribed by the board, to
have any portion of an eligible rollover distribution that is equal
to at least $500 paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of
this section, the following definitions apply:
(1) "Eligible rollover distribution" means 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 of the following: (i) 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 the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (ii) any distribution
to the extent such distribution is required under Section 401(a)(9)
of the Internal Revenue Code; (iii) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; (iv) any hardship distribution described in
Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v)
any other distribution or distributions expected to total less than
$200 during a year. For distributions after December 31, 2001, 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 includable in gross income.
However, this portion may be paid only to an individual retirement
account or annuity described in Section 408(a) or (b) of the
Internal Revenue Code, or (for taxable years beginning before January 1, 2007) to a qualified trust which is part of a defined
contribution plan described in Section 401(a) or (for taxable years
beginning after December 31, 2006) to a qualified trust or to an
annuity contract described in Section 403(a) or (b) of the Internal
Revenue Code that agrees to separately account for amounts
transferred (including interest or earnings thereon), including
separately accounting for the portion of the distribution which is
includable in gross income and the portion of the distribution
which is not so includable, or (for taxable years beginning after
December 31, 2007) to a Roth IRA described in Section 408A of the
Internal Revenue Code.
(2) "Eligible retirement plan" means 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, or a qualified plan described in
Section 401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution prior to January 1, 2002,
to the surviving spouse, an eligible retirement plan is limited to
an individual retirement account or individual retirement annuity.
For distributions after December 31, 2001, an eligible retirement
plan also means an annuity contract described in Section 403(b) of
the Internal Revenue Code and 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 the plan from this
system. For distributions after December 31, 2007, an eligible
retirement plan also means a Roth IRA described in Section 408A of
the Internal Revenue Code: Provided, That in the case of an
eligible rollover distribution after December 31, 2007, to a
designated beneficiary (other than a surviving spouse) as such term
is defined in Section 402(c)(11) of the Internal Revenue Code, an
eligible retirement plan is limited to an individual retirement
account or individual retirement annuity which meets the conditions
of Section 402(c)(11) of the Internal Revenue Code.
(3) "Distributee" means a judge or former judge. In addition,
the judge's or former judge's surviving spouse and the judge's or
former judge'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, with respect to governmental
plans, are distributees with regard to the interest of the spouse
or former spouse. For distributions after December 31, 2007,
"distributee" also includes a designated beneficiary (other than a
surviving spouse) as such term is defined in Section 402(c)(11) of
the Internal Revenue Code.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other system administered by the
board
.
Email
Webmaster | © 2024 West Virginia Legislature **
