Are Tribal Benefit Plans "Governmental"?

Crunch time has come for Tribes to review whether their employee benefit plans are "governmental," in light of the Internal Revenue Service "Advance Notice of Proposed Rulemaking" issued November 7.

Background

Five years ago, in the Pension Protection Act of 2006, Congress provided that Tribal employee benefit plans would not be treated as "governmental" unless all the participants are individuals "substantially all of whose services ... are in the performance of essential governmental functions but not in the performance of commercial activities (whether or not an essential government function)." This requires Tribal employee benefit plans covering any "commercial" employees to fully comply with the requirements of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code of 1986 (IRC) in the same manner as private sector business employer plans.