Rev. Rul. 80-314

The purpose of this revenue ruling is to restate Rev. Rul. 68-300, 1968-1 C.B. 159, in view of the enactment of the Employee Retirement Income Security Act of 1974, Pub. L. 93-406, 1974-3 C.B. 1.

The issue in Rev. Rul. 68-300 is whether an employee is an officer within the purview of sections 401(a)(4) and 410(b) of the Internal Revenue Code under the circumstances stated below.

An employee in the parts department of a company was given the title of assistant secretary-treasurer to qualify such employee to sign checks, in the absence of superior officers of the corporation, and to affix and attest to the corporate seal when necessary. The employee executed documents in such employee's official capacity on a few occasions but otherwise had no voice in the management or administration of the corporation.

Sections 401(a)(4) and 410(b) of the Code set forth certain coverage and benefit or contribution requirements that are intended to assure that an employee benefit plan will not be qualified if it discriminates in favor of employees who are officers, shareholders, or highly compensated.

The status of officers should be determined upon the basis of all the facts including, for example, the source of their authority, the term for which elected or appointed, and the nature and extent of their duties. As generally accepted in connection with corporations, the term "officer" means an administrative executive who is in regular and continued service. It implies continuity of service and excludes those employed for a special and single transaction.

The facts in this case indicate that the employee's administrative duties are nominal and are exercised in a substitute capacity on some occasions.

Accordingly, the employee is not considered an officer within the purview of sections 401(a)(4) and 410(b) of the Code. However, such an employee, although not included in the officer group, may be a shareholder or a highly compensated employee.

The principles and conclusion stated herein are applicable to those plans described in section 410(c) of the Code.

Rev. Rul. 68-300 is superseded because the position stated therein is restated under current law in this revenue ruling.