concurring: I join in the opinion of the Court in this case. However, a few additional comments may be appropriate. It appears to me that petitioner’s plan fails to meet the standards of the statute — in particular, paragraphs (1), (2), and (5)(A) of section 411(a) of the Internal Revenue Code of 1954, as amended. The plan fails because it is possible, under the plan’s provisions set forth in the Court’s opinion, for a participant to be denied a nonforfeitable right to his or her accrued benefit derived from employer contributions even though the participant has completed 1,000 hours of service during each of that number of years which the plan is permitted to require under the appropriate subparagraph of paragraph (2) of section 411(a) of the Code (set forth in note 4 of the Court’s opinion). Since the statute forbids a plan to impose a greater obligation on a participant, I do not see how a regulation could validly permit a plan to impose a greater obligation on a participant. Consequently, I do not see how we could hold for petitioner in this case, even if we had agreed with petitioner’s analysis of the regulations drawn in question.
In the usual case, respondent may appropriately be held to regulations prescribed by the Treasury Department (or the appropriate other department or agency, as in this case), even though there may be doubt that the statute is as generous as the regulations to the petitioner. However, in cases arising under the Employee Retirement Income Security Act of 1974 (ERISA) this course of action frequently is not appropriate, because it is possible for the status of a plan (and the validity of the regulations) to be drawn in question by employees and by the Pension Benefit Guaranty Corp., as well as by the plan administrator and the employer (see sec. 7476(b)(1) of the Code). Also, decisions in this forum interpreting the statute and the regulations will have an impact on the rights of participants, beneficiaries, and others in proceedings brought under part 5 of title I and under title IV of ERISA. (See note 11 of the Court’s opinion.)
Tannenwald and Simpson, JJ., agree with this concurring opinion.