It is Not a Duck: New Jersey Court Holds a Surcharge Is Not A Contribution For Purposes of Determining a Withdrawn Employer’s Payment Schedule

Since the passage of the Pension Protection Act in 2006, there has been an ongoing debate as to whether a surcharge imposed by a multiemployer pension plan in critical status is part of the employer’s “contribution rate” such that that extra amount — which can be 10% of an employer’s contribution — counts when a fund determines what a withdrawn employer’s “highest contribution rate” is for purposes of calculating the employer’s withdrawal liability payment schedule.

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