Page:United States Statutes at Large Volume 92 Part 3.djvu/158

 92 STAT. 2790

26 USC 401. 29 USC 1103.

PUBLIC LAW 95-600—NOV. 6, 1978 amounts paid or incurred during the taxable year as expenses of administering the plan as does not exceed the lesser of— "(A) the sum of— "(i) 10 percent of the first $100,000 of the dividends paid to the plan with respect to stock of the employer during the plan year ending with or within the employer's taxable year, and "(ii) 5 percent of the amount of such dividends in excess of $100,000 or "(B) $100,000. "(j) CONDITIONAL CONTRIBUTIONS TO THE PLAN.—A plan which otherwise meets the requirements of this section shall not be treated as failing to satisfy such requirements (or as failing to satisfy the requirements of section 401(a) of this title or of section 403(c)(1) of the Employee Retirement Income Security Act of 1974) merely because of the return of a contribution (or a provision permitting such a return) if— "(1) the contribution to the plan is conditioned on a determination by the Secretary that such plan meets the requirements of this section, "(2) the application for a determination described in paragraph (1) is filed with the Secretary not later than 90 days after the date on which an ESOP credit is claimed, and "(3) the contribution is returned within 1 year after the date on which the Secretary issues notice to the employer that such plan does not satisfy the requirements of this section, "(k) REQUIREMENTS RELATING TO CERTAIN WITHDRAWALS.—Not-

26 USC 415.

withstanding any other law or rule of law— "(1) the withdrawal from a plan which otherwise meets the requirements of this section by the employer of an amount contributed for purposes of the matching ESOP credit shall not be considered to make the benefits forfeitable, and "(2) the plan shall not, by reason of such withdrawal, fail to be for the exclusive benefit of participants or their beneficiaries, if the withdrawn amounts were not matched by employee contributions or were in excess of the limitations of section 415. Any withdrawal described in the preceding sentence shall not be considered to violate the provisions of section 403(c)(1) of the Employee Retirement Income Security Act of 1974. "(1) EMPLOYER SECURITIES DEFINED.—For purposes of this section— "(1) IN GENERAL.—The term 'employer securities' means common stock issued by the employer (or by a corporation which is a member of the same controlled group) which is readily tradable on an established securities market. "(2) SPECIAL RULE WHERE THERE IS NO READILY TRADABLE COMMON STOCK.—If there is no common stock which meets the

requirements of paragraph (1), the term 'employer securities* means common stock issued by the employer (or by a corporation which is a member of the same controlled group) having a combination of voting power and dividend rights equal to or in excess of— "(A) that class of common stock of the employer (or of any other such corporation) having the greatest voting power, and "(B) that class of stock of the employer (or of any other such corporation) having the greatest dividend rights.

�