Date of enactment: May 1, 1996
1995 Senate Bill 449 Date of publication*: May 15, 1996
* Section 991.11, Wisconsin Statutes 1993-94: Effective date of acts. "Every act and every portion of an act enacted by the legislature over the governor's partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated" by the secretary of state [the date of publication may not be more than 10 working days after the date of enactment].
1995 WISCONSIN ACT 302
(Vetoed in Part)
An Act to repeal 40.26 (1) (a) and (b) and 40.26 (2) (d); to renumber and amend 40.26 (1) (intro.); to amend 40.02 (8) (a) 1., 40.02 (14), 40.02 (22) (a), 40.02 (22) (b) 9., 40.02 (22) (e), 40.02 (26g), 40.02 (40), 40.05 (1) (a) 5., 40.05 (1) (a) 6., 40.08 (1m) (e) 2., 40.08 (1m) (f) 2., 40.08 (8) (b), 40.08 (8) (c), 40.08 (14), 40.23 (1) (a) 1., 40.23 (1) (b), 40.23 (1) (c), 40.23 (2m) (b), 40.24 (1) (f), 40.25 (6) (a) 3., 40.25 (7) (a) 1., 40.26 (3) (bm) (intro.), 40.27 (2) (b), 40.73 (3) (a), 40.73 (3) (e) and 40.86 (intro.); to repeal and recreate 40.08 (6), 40.08 (8) (a) and 40.23 (1) (d); to create 40.015, 40.02 (39m), 40.02 (48r), 40.03 (1) (am), 40.03 (2) (t), 40.05 (1) (a) 7., 40.05 (2r), 40.08 (1m) (e) 4., 40.23 (4), 40.24 (5), 40.24 (7) (a) 6., 40.25 (6) (a) 5., 40.25 (7) (g), 40.26 (5), 40.31, 40.32, 111.91 (2) (k), 111.91 (2) (L) and 111.91 (2) (m) of the statutes; and to affect 1995 Wisconsin Act 27, section 1946m and 1995 Wisconsin Act 27, section 9459 (2) (d); relating to: maximum benefit and contribution limits under the Wisconsin retirement system, granting rule-making authority and making an appropriation.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
302,1 Section 1. 40.015 of the statutes is created to read:
40.015 Compliance with federal tax laws. (1) The Wisconsin retirement system is established as a governmental plan and as a qualified plan for federal income tax purposes under the internal revenue code and shall be so maintained and administered.
(2) No benefit plan authorized under this chapter may be administered in a manner which violates an internal revenue code provision that authorizes or regulates that benefit plan or which would cause an otherwise tax exempt benefit to become taxable under the internal revenue code.
302,2 Section 2. 40.02 (8) (a) 1. of the statutes is amended to read:
40.02 (8) (a) 1. The person, or a trust in which the person has a beneficial interest, so designated by a participant or insured employe or annuitant in the last written designation of beneficiary on file with, and in the form approved by, the department at the time of death, except as provided in s. 40.23 (4) (c). A written designation of beneficiary for a specified benefit plan applies only for determining beneficiaries under that specified benefit plan.
302,3 Section 3. 40.02 (14) of the statutes is amended to read:
40.02 (14) "Creditable current service" means the creditable service granted for service performed for a participating employer and for which a participating employe receives earnings from a participating employer after the effective date of participation for that employer.
302,4 Section 4. 40.02 (22) (a) of the statutes is amended to read:
40.02 (22) (a) Except as provided in pars. (b) to (f) and s. 40.63 (1) (c), means the gross amount paid to an employe by a participating employer as salary or wages, including amounts provided through deferred compensation or tax shelter agreements, for personal services rendered to or for an employer, or which would have been available for payment to the employe except for the employe's election that part or all of the amount be used for other purposes and also includes the money value, as determined by the employer, of any board, lodging, fuel, laundry and other allowances provided for the employe in lieu of money. For purposes of this paragraph, the gross amount shall be determined prior to deductions for taxes, insurance premiums, retirement contributions or deposits, charitable contributions or similar amounts and shall be considered received as of the date when the earnings would normally be payable by the employer. For reporting and computation purposes, fractions of a dollar shall be disregarded in determining annual earnings.
302,5 Section 5. 40.02 (22) (b) 9. of the statutes is amended to read:
40.02 (22) (b) 9. Payments for damages, attorney fees, interest or penalties paid under court judgment or by compromise settlement to satisfy a grievance or wage claim even though the amount of damages or penalties might be based on previous salary levels. However, where the court order or compromise settlement directs that salary be paid for a specified period of time, the payment shall be considered covered earnings applicable to the period specified in the order or settlement, and if the order or settlement provides that the salary be reduced by amounts earned from other sources, then the covered earnings shall be determined prior to the reduction the department may by rule provide that a payment of additional wages to a continuously participating employe, or the payment of salary to a participant for any period of improper termination of participating employment, is earnings, if the payment is treated by the employer and employe as taxable income and is consistent with previous payment for hours of service rendered by the employe.
302,6 Section 6. 40.02 (22) (e) of the statutes, as affected by 1995 Wisconsin Act 27, section 1946, is amended to read:
40.02 (22) (e) Except for OASDHI purposes, at the employer's discretion, means compensation deemed to have been paid for services deemed to have been rendered during periods of leaves of absence without pay, while serving in a position covered under, and meeting the requirements of, 38 USC 4301, et seq., at the employe's rate of pay prior to the leave beginning such service, provided contributions and premiums on the deemed earnings are paid as required under s. 40.05. Any action taken under this paragraph that applies to state employes shall be taken pursuant to a collective bargaining agreement under subch. V of ch. 111 or s. 230.12 or 233.10.
302,7 Section 7. 40.02 (26g) of the statutes is amended to read:
40.02 (26g) "Employe-funded reimbursement account plan" means a plan in accordance with section 125 of the internal revenue code, as defined in s. 71.01, under which an employe may direct an employer to place part of the employe's gross compensation in an account to pay for certain future expenses of the employe under section 125 of the internal revenue code.
302,8 Section 8. 40.02 (39m) of the statutes is created to read:
40.02 (39m) "Internal revenue code" means the internal revenue code, as defined for the current taxable year under s. 71.01 (6), and applicable regulations adopted under the internal revenue code, including temporary regulations.
302,9 Section 9. 40.02 (40) of the statutes is amended to read:
40.02 (40) "Leave of absence" means any period during which an employe has ceased to render services for a participating employer and receive earnings from a participating employer and there has been no formal termination of the employer-employe relationship. For purposes of the fund every leave of absence, except a military leave or union service leave, shall terminate 3 years after it begins or, if earlier, upon the date specified by the employer in a notification to the department that the employer-employe relationship has terminated. A leave of absence is not deemed ended or interrupted by reason of resumption of active duty until the employe has resumed active performance of duty for 30 consecutive calendar days for at least 50% of what is considered that employe's normal work time with that employer. For the purpose of group health insurance coverage, every leave of absence due to employe layoff which has not been terminated before 3 years have elapsed shall continue for affected insured employes until an additional 2 years elapse or until sick leave credits used to pay health insurance premiums are exhausted, whichever occurs first.
302,10 Section 10. 40.02 (48r) of the statutes is created to read:
40.02 (48r) "Required beginning date" means the later of April 1 of the calendar year following the calendar year in which a participant attains the age of 70.5 years or April 1 of the calendar year following the calendar year in which a participating employe retires.
302,10m Section 10m. 40.03 (1) (am) of the statutes is created to read:
40.03 (1) (am) Shall ensure that the Wisconsin retirement system complies with the internal revenue code as a qualified plan for income tax purposes and shall ensure that each benefit plan is administered in a manner consistent with all internal revenue code provisions that authorize and regulate the benefit plan.
302,11 Section 11. 40.03 (2) (t) of the statutes is created to read:
40.03 (2) (t) Shall ensure that the Wisconsin retirement system complies with the internal revenue code as a qualified plan for income tax purposes and shall ensure that each benefit plan is administered in a manner consistent with all internal revenue code provisions that authorize and regulate the benefit plan.
302,12 Section 12. 40.05 (1) (a) 5. of the statutes is amended to read:
40.05 (1) (a) 5. Additional contributions may be made by any participant by deduction from earnings or otherwise or may be provided on behalf of any participant in any calendar year in which the participant has earnings, subject to any limitations imposed on contributions by the U.S. internal revenue code, applicable regulations adopted under the internal revenue code and rules of the department.
302,13 Section 13. 40.05 (1) (a) 6. of the statutes is amended to read:
40.05 (1) (a) 6. Under the rules promulgated under s. 40.03 (2) (r), additional contributions, other than the first $5,000 of contributions, or a beneficiary's prorated share thereof, that are attributable to a death benefit paid under s. 40.73, may be made to the fixed annuity division by any participant by rollover contribution of a payment or distribution from a pension or annuity qualified under section 401 of the internal revenue code, as defined in s. 71.01 (6), subject to any limitations imposed on contributions by the internal revenue code, applicable regulations adopted under the internal revenue code and rules of the department.
302,14 Section 14. 40.05 (1) (a) 7. of the statutes is created to read:
40.05 (1) (a) 7. Subject to any applicable limitations under the internal revenue code, a participating employe may elect to use part or all of his or her accumulated after-tax additional contributions, including interest, made under subd. 5., other than contributions treated by the department as contributions to a tax sheltered annuity under section 403 (b) of the internal revenue code, to purchase creditable service under this chapter.
302,15 Section 15. 40.05 (2r) of the statutes is created to read:
40.05 (2r) Annual contributions limitations; disqualification procedure. (a) Contributions made under this section are subject to the limitations under s. 40.32 and the internal revenue code.
(b) If a participant in the Wisconsin retirement system also participates in a different retirement plan offered by an employer that is subject to section 401 of the internal revenue code and the internal revenue service seeks to disqualify one or more of the plans because the aggregate contributions to the plans exceed the contribution limits under section 415 of the internal revenue code, the internal revenue service, if it permits state law to determine the order of disqualification of such retirement plans, shall disqualify the retirement plans in the following order:
1. Retirement plans offered and administered by the employer.
2. Retirement plans offered by the employer, but administered by the department.
3. The Wisconsin retirement system.
302,16 Section 16. 40.08 (1m) (e) 2. of the statutes is amended to read:
40.08 (1m) (e) 2. Except as provided in subd. subds. 3. and 4., the control and ownership rights of the alternate payee over his or her share of the account shall be the same as if the alternate payee were a participant who had ceased to be a participating employe but had not applied for a benefit under s. 40.23 or 40.25 on the decree date or the date that the participant terminated covered employment, whichever is earlier.
302,17 Section 17. 40.08 (1m) (e) 4. of the statutes is created to read:
40.08 (1m) (e) 4. An alternate payee, who elects an annuity option, may only elect among the options under s. 40.24 that provide payments that are calculated only on the basis of the age of the alternate payee.
302,18 Section 18. 40.08 (1m) (f) 2. of the statutes is amended to read:
40.08 (1m) (f) 2. If the participant is an annuitant on the decree date, the annuity shall be recomputed using the total value of the participant's account determined under par. (b) reduced by the total of the alternate payee share transferred under par. (e) 1., in accordance with the actuarial tables in effect and using the participant's age on the decree date. The decree date shall be the effective date of recomputation. If the optional annuity form before division of the participant's account under par. (b) was not a joint and survivor annuity with the alternate payee as the named survivor, the same annuity option with no change in the remaining guarantee period, if any, shall be continued upon recomputation to both the participant and the alternate payee. The present value of the alternate payee's share of the annuity after division shall be paid to the alternate payee as a straight life annuity based on the age of the alternate payee on the decree date. The alternate payee's annuity shall have the same remaining guarantee period, if any, as the participant's annuity. If the optional annuity form before division of the participant's account under par. (b) was a joint and survivor annuity with the alternate payee as the named survivor, the present value of the annuity after division shall be paid to both the participant and the alternate payee as a straight life annuity based upon their respective ages on the decree date. If the participant's account is reestablished under s. 40.26 (2) after the decree date, the memorandum account created under s. 40.26 (2) (b) shall be adjusted by the total of the alternate payee share computed under this subdivision. If the participant's account is reestablished under s. 40.63 (10) after the decree date, the amounts and creditable service reestablished shall be reduced by an amount equal to the percentage of the alternate payee share computed under this subdivision.
302,19 Section 19. 40.08 (6) of the statutes is repealed and recreated to read:
40.08 (6) Refunds. (a) Notwithstanding s. 20.913, but subject to par. (b), the department may refund any money paid in error to the fund by or on behalf of a person who is not a participant.
(b) The department may not refund any money paid into the fund by an employer, but shall by rule credit the money to the employer.
(c) Except as provided in par. (d), money paid into the fund by an employer on behalf of a participant which exceeds the contribution limits under s. 40.32 may not be refunded to the employer, but the department shall by rule credit the money to the employer and the employer shall pay the participant the amount of the credit as additional wages or salary.
(d) Money paid into the fund by a participant which exceeds the contribution limits under s. 40.32 may be refunded directly to the participant if the department determines that the money was paid on an after-tax basis.
(e) No interest may be credited to any money refunded under this subsection.
302,20 Section 20. 40.08 (8) (a) of the statutes is repealed and recreated to read:
40.08 (8) (a) Benefits provided under this chapter shall be considered abandoned as follows:
1. Any potential primary beneficiary under s. 40.02 (8), other than an estate, who has not applied for any benefit payable under this chapter as a result of the death of the participant and whom the department cannot locate by reasonable efforts, as determined by the department by rule, within one year after the death of the participant shall be presumed to have predeceased the participant and all other potential beneficiaries. Thereafter, if the department is unable to locate any resulting subsequent beneficiary within 6 months, all beneficiaries under s. 40.02 (8) (a) 1. and 2. shall be presumed to have predeceased the participant and the department shall pay all benefits payable under this chapter as a result of the death of the participant to the participant's estate in a lump sum.
2. If an estate that is determined by the department to be a beneficiary is closed prior to the payment of benefits payable under this chapter as a result of the death of the participant and the estate is not reopened within 6 months after the department notifies the estate that a benefit is payable, the benefit shall be considered irrevocably abandoned and shall be transferred to the employer accumulation reserve, unless the estate was the designated beneficiary under s. 40.02 (8) (a) 1.
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