N.Y. Comp. Codes R. & Regs. tit. 11 § 40.2

Current through Register Vol. 46, No. 43, October 23, 2024

Section 40.2 - Definitions

As used in this Part, the following terms shall have the following meanings:

(a) Accumulation fund means the aggregate net considerations ( i.e., gross considerations less all deductions from such considerations) credited to the contract plus all additional amounts, including interest and dividends, credited to the contract less partial withdrawals (but not contract loans) and less all charges and fees imposed against the accumulated amount under the contract other than surrender charges and market value adjustments.

(b) Contract means a funding agreement or a group annuity contract.

(c) Defined contribution plan means a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant's account, and any income, expenses, gain and losses, and any forfeitures of accounts of other participants which may be allocated to such participant's account.

(d) Department means the Insurance Department of the State of New York and any employee of the department authorized to act on behalf of the department.

(e) Disability means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration and can be expected to be for life.

(f) Discontinuance means the cessation of contributions under a contract.

(g) Funding agreement means a contract described in section 3222 of the Insurance Law.

(h) Governmental plan means a plan defined in section 414(d) of the Internal Revenue Code of 1986.

(i) Group annuity contract means any policy or contract described in section 4238 of the Insurance Law.

(j) Guaranteed interest contract means a contract which guarantees principal and either:

(1) provides a specified rate of interest on amounts deposited with an unqualified right to withdraw the accumulation fund upon the expiration of the time period for which the amount deposited and the specified rate of interest are guaranteed under the contract, either in a lump sum or in installments over a period less than five years with the amount and timing of each such installment specified in the contract; or

(2) provides an indeterminate rate of interest for an indefinite period with an unqualified right to withdraw the accumulation fund at least once a year in either a lump sum, subject to a surrender charge no greater than seven percent, or in substantially equal periodic, at least annual, installments over a period less than five years which does not reflect investment experience of the underlying assets.

(k) Internal Revenue Code means the Internal Revenue Code of 1986 or any future legislation which amends, supplements or supersedes the Internal Revenue Code of 1986.

(l) Investment year method means a procedure for distributing net investment income in an equitable manner approved by the superintendent pursuant to Part 91 of this Title.

(m) Liquidated damages means the charges or adjustments which may become applicable in the event contributions are not made in the amounts or on the dates specified in the contract and which reasonably reflect the actual losses anticipated by the insurance company in making commitments in advance of the receipt of the specified contributions.

(n) Market value means in the case of any publicly traded security, the price at which such security is traded or, if no such price is available, a price that appropriately reflects the latest bid price or the latest bid and asked prices for such security and in the cases of any other asset, its fair value determined in accordance with procedures established by the insurance company.

(o) Market-value adjustment means an adjustment for increasing or decreasing the accumulation fund in event of full or partial surrender or contract termination to reflect changes in interest rates or asset values since the receipt of funds by the company according to a formula described in the contract.

(p) Participant directed investment option means an investment option which may be selected by a participant pursuant to the terms of a pension plan which permits participants to exercise control over the amounts allocated to their individual accounts under the plan.

(q) Pension plan means any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that, by its express terms or as a result of surrounding circumstances, such plan, fund or program (1) provides retirement income to employees, or (2) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan.

(r) Person means an individual, corporation, partnership or association.

(s) Plan sponsor means:

(1) the employer in the case of a pension plan established or maintained by a single employer;

(2) the employee organization in the case of a pension plan established or maintained by an employee organization; or

(3) in the case of a pension plan established or maintained by two or more employers or jointly by one or more employers and one or more employee organizations, the association, committee, joint board of trustees, or other similar group of representatives of the parties who establish or maintain the plan.

(t) Separate account means an account established pursuant to section 4240 of the Insurance Law.

(u) Specified rate of interest means the rate of interest which, at the time set or established under the contract, is likely to result in the crediting of no more than a minimal rate of additional interest to the accumulation fund on an annual or more frequent basis.

(v) Superintendent means the Superintendent of Insurance of the State of New York and any employee of the department authorized to act on behalf of the superintendent.

(w) Surrender charge means a deduction made against the accumulation fund when and because a contract or portion thereof is surrendered for its cash value, including any downward market-value adjustment.

(x) Termination of employment means the cessation of an employment relationship with an employer or multiple employer or membership in an employee organization sponsoring the plan (including retirement), other than: any temporary absence, change in position or other occurrence qualifying as a temporary break in service under the plan, transfer or other change of position resulting in employment by an entity controlling, controlled by, or under common control with the employer, or cessation of an employment relationship resulting from a reorganization, merger, or the sale or discontinuance of all or any part of the plan sponsor's business. A termination of employment occurs as a result of death or disability (as defined in subdivision [e] of this section). Benefit payments to a participant required as a result of plan termination or partial plan termination will not be regarded as resulting from a termination of employment.

(y) Unadjusted transfer value means an amount equal to the accumulation fund (or portion thereof to be transferred) determined without the imposition of a surrender charge.

(z) Unallocated amounts shall mean any funds credited to the accumulation fund which the insurer is not currently irrevocably committed to apply under the terms of the contract to the payment of benefits by it to specific plan participants or beneficiaries or to the purchase of annuities for specific plan participants, adjusted for any accrued experience rating charges or credits, including expenses and administrative, sales and surrender charges provided for under the contract.

N.Y. Comp. Codes R. & Regs. Tit. 11 § 40.2