PWBA: Don't Forget Voluntary Compliance

January 9, 2003 ( - Federal officials used the announcement of an out-of-court settlement in a pension wrongdoing case to remind company officials that pension problems can be worked out voluntarily without going to federal court.

Kenneth Bazar, Chicago regional director of the US Department of Labor’s Pension and Welfare Benefits Administration (PWBA), said employers could participate in the agency’s  Voluntary Fiduciary Correction Program (VFCP). In a statement, Bazar said companies still have to restore plan assets they may have improperly withdrawn, but VFCP participants can escape PWBA enforcment actions along with civil penalties and excise taxes.

Bazar’s reminder came with the announcement of a government settlement with Birger NyBorg & Co. Ltd., of Roselle, Illinois and its pension plan trustee to restore $38,439 to the plan. Birger Nyborg, who filed for personal bankruptcy in June 2002, was accused of commingling $24,886.64 in employee contributions owed to the plan with the company’s general assets and using the plan’s assets to pay the company’s operating expenses from July 1994 to December 1997, the government said.

The agreement calls for the company to terminate its plan, distribute its assets, and file any required documentation with the government. The Birger Nyborg & Co., Ltd. Profit Sharing and Cash or Deferred Plan was established in 1986 and had $305,385.08 in assets and four participants as of December 31, 2001, the PWBA said.