Page:United States Statutes at Large Volume 120.djvu/852

 PUBLIC LAW 109–280—AUG. 17, 2006

120 STAT. 821

plan does not have an accumulated funding deficiency under section 431 as of the end of the plan year. ‘‘(b) LIABILITY FOR CONTRIBUTIONS.— ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amount of any contribution required by this section (including any required installments under paragraphs (3) and (4) of section 430(j)) shall be paid by the employer responsible for making contributions to or under the plan. ‘‘(2) JOINT AND SEVERAL LIABILITY WHERE EMPLOYER MEMBER OF CONTROLLED GROUP.—If the employer referred to in paragraph (1) is a member of a controlled group, each member of such group shall be jointly and severally liable for payment of such contributions. ‘‘(c) VARIANCE FROM MINIMUM FUNDING STANDARDS.— ‘‘(1) WAIVER IN CASE OF BUSINESS HARDSHIP.— ‘‘(A) IN GENERAL.—If— ‘‘(i) an employer is (or in the case of a multiemployer plan, 10 percent or more of the number of employers contributing to or under the plan is) unable to satisfy the minimum funding standard for a plan year without temporary substantial business hardship (substantial business hardship in the case of a multiemployer plan), and ‘‘(ii) application of the standard would be adverse to the interests of plan participants in the aggregate, the Secretary may, subject to subparagraph (C), waive the requirements of subsection (a) for such year with respect to all or any portion of the minimum funding standard. The Secretary shall not waive the minimum funding standard with respect to a plan for more than 3 of any 15 (5 of any 15 in the case of a multiemployer plan) consecutive plan years ‘‘(B) EFFECTS OF WAIVER.—If a waiver is granted under subparagraph (A) for any plan year— ‘‘(i) in the case of a defined benefit plan which is not a multiemployer plan, the minimum required contribution under section 430 for the plan year shall be reduced by the amount of the waived funding deficiency and such amount shall be amortized as required under section 430(e), and ‘‘(ii) in the case of a multiemployer plan, the funding standard account shall be credited under section 431(b)(3)(C) with the amount of the waived funding deficiency and such amount shall be amortized as required under section 431(b)(2)(C). ‘‘(C) WAIVER OF AMORTIZED PORTION NOT ALLOWED.— The Secretary may not waive under subparagraph (A) any portion of the minimum funding standard under subsection (a) for a plan year which is attributable to any waived funding deficiency for any preceding plan year. ‘‘(2) DETERMINATION OF BUSINESS HARDSHIP.—For purposes of this subsection, the factors taken into account in determining temporary substantial business hardship (substantial business hardship in the case of a multiemployer plan) shall include (but shall not be limited to) whether or not— ‘‘(A) the employer is operating at an economic loss,

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